[Senate Hearing 110-737]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 110-737



                                 OF THE

                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION




                            OCTOBER 23, 2007


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               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
BARACK OBAMA, Illinois               PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont         WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma

           J. Michael Myers, Staff Director and Chief Counsel

           Katherine Brunett McGuire, Minority Staff Director



                            C O N T E N T S



                       TUESDAY, OCTOBER 23, 2007

Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico, 
  opening statement..............................................     1
Alexander, Hon. Lamar, a U.S. Senator from the State of 
  Tennessee, statement...........................................     2
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio, 
  statement......................................................     2
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado, 
  statement......................................................     3
Murray, Hon. Patty, a U.S. Senator from the State of Washington, 
  statement......................................................     4
    Prepared statement...........................................     5
Hallmark, Shelby, Director, Office of Workers' Compensation 
  Programs, Department of Labor, Washington, DC..................     7
    Prepared statement...........................................     8
Reid, Hon. Harry, a U.S. Senator from the State of Nevada, 
  statement......................................................    16
    Prepared statement...........................................    19
Howard, John, M.D., Director, National Institute for Occupational 
  Safety and Health, Washington, DC..............................    22
    Prepared statement...........................................    23
Nelson, Malcom D., Ombudsman, Energy Employee Compensation 
  Program, Department of Labor, Washington, DC...................    27
    Prepared statement...........................................    28
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska, 
  prepared statement.............................................    36
Melius, James, M.D., DrPh., Member, Advisory Board on Radiation 
  and Worker Health, National Institute for Occupational Safety 
  and Health, Albany, NY.........................................    39
    Prepared statement...........................................    41
Silver, Ken, Assistant Professional, Environmental Health 
  Sciences, East Tennessee State University, Johnson City, TN....    45
    Prepared statement...........................................    47

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Senator Enzi.................................................    65
    Senator Harkin...............................................    66
    Senator Clinton..............................................    67
    Senator Obama................................................    68
    Senator Schumer..............................................    71
    Senator Salazar..............................................    73
    Representative Mark Udall....................................    74

    Prepared statements of:
        Mark Ayers, President, The Building and Construction 
          Trades Department, AFL-CIO, Washington, DC.............    78
        Sylvia Dodson, Knoxville, TN.............................    80
        Deb Jerrison, Yellow Springs, OH.........................    80
        Daniel Yaeger, Worker, U.S. Department of Energy Fernald 
          site...................................................    83
    Response to Questions of Senators Kennedy, Murray, Brown, and 
      Reid by Malcom D. Nelson...................................    84
    Response to Questions of Senator Murray by James Melius, 
      M.D., DrPH.................................................    89
    Rocky Mountain News Article by Laura Frank...................    91




                       TUESDAY, OCTOBER 23, 2007

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:06 a.m. in 
Room SD-430, Dirksen Senate Office Building, Hon. Jeff 
Bingaman, presiding.
    Present: Senators Bingaman, Murray, Brown, Alexander, 
Murkowski, and Allard.
    Also present: Senator Reid.

                 Opening Statement of Senator Bingaman

    Senator Bingaman. This is an oversight hearing on the 
Energy Employees Occupational Illness Compensation Program Act. 
First, let me thank the witnesses for being here and taking the 
time to testify. I know that some of you have traveled a 
distance to be here, and I thank you for that.
    This is the first oversight hearing this Congress on this 
Energy Employees Occupational Illness Compensation Program Act. 
Last Congress the House Judiciary Committee held five oversight 
hearings regarding claimed efforts by OMB to trim back the 
program in order to control costs for budget reasons. I believe 
that phase is over, and this committee does not have to focus 
on that issue, specifically, this year.
    I've been working on this act, as many of my colleagues 
have, since it was first put into law in 2000, and that 
includes the major restructuring of the act that occurred in 
2004. The principle purpose in formulating the program was to 
provide compensation to persons who'd become sick as a result 
of work in the nuclear weapons program. And to do so under 
assumptions that were favorable to the claimant, given in many 
cases the fact that exposure data was lacking at some of the 
older facilities that we had in the country.
    Since many of these workers are either ill or elderly, an 
inherent assumption was made that the claimant--to have a 
claimant-friendly determination, with minimal confusion and 
frustration on behalf of the worker.
    Today's hearing will look at whether the Program's being 
administered to meet this overarching principle. Let me thank 
all of the witnesses again, and Senator Alexander, did you have 
any opening statements you'd like to make at this point?

                     Statement of Senator Alexander

    Senator Alexander. Thanks Senator Bingaman, I would like to 
make a couple of comments.
    First, I'd like to thank Senators Bingaman and Bunning, 
especially, for their leadership on this issue over the years. 
We've all worked on it, and are concerned about it.
    Tennessee has a special concern about these claims, and I 
have a special feeling about it, I grew up near Oak Ridge, TN, 
and watched people from my county drive over there from World 
War II on through. And, we always had great respect for what 
they did, they never talked about what they did, a lot of it 
was secret, and we expected that the government knew what it 
was doing.
    Turns out the government didn't know what it was doing in 
terms of the health of many of these workers.
    As a result, these cold warriors, as I would call them, 
became sick from risks that, largely, had to do with being 
around nuclear radiation.
    Tennessee has more than 24,000 compensation claims that 
have affected 10,000 workers. We have twice the number of 
claims of any other State. Sixteen percent of all of the claims 
come from Tennessee, and so Senator Corker and I, and others in 
our delegation, are very interested in making sure that we do 
everything we can to make sure the claims are fairly and 
promptly resolved.
    What I'm especially interested in hearing about today is 
how we can speed things up. Since the law that we passed in 
2004, based upon the information I have, Senator Bingaman, the 
average wait time for processing claims has actually increased.
    Now, there's some reasons for that, but that still seems to 
be a fact and a discouragement to sick nuclear workers who are 
growing older, and who--if they were to die--their families 
wouldn't, in many cases, receive the benefit of the claim.
    I'm also interested in making sure that claimants or 
potential claimants are treated courteously, the same way we 
like for our staff members on our Senate staffs to treat 
    And, so those are the two things I want to look at: Are we 
doing this as efficiently and promptly as we can? And are we 
treating each of these claimants with dignity in making sure 
that their needs are respected.
    I thank the witnesses for coming, I look forward to the 
    Senator Bingaman. Let me just see if Senator Brown and 
Senator Allard are both here, if either of them have a short 
    Go right ahead, Senator Brown.

                       Statement of Senator Brown

    Senator Brown. I thank you, Mr. Chairman, thank you for 
holding this hearing. Senator Alexander, thank you, and my 
statement will be brief.
    My home State of Ohio has played a major, significant role 
in the Department of Energy programs that eventually resulted 
in the creation of the Energy Employees Occupational Illness 
Compensation Program we're discussing here today.
    In Miamisburg, near Dayton, the Mound Laboratory was the 
top secret research center involved in the processing of 
plutonium and polonium, and Hamilton and Butler counties just 
north--just in Cincinnati and north of Cincinnati, the feed 
materials production center produced uranium for nuclear 
weapons, and in southern Ohio, we've enriched uranium for 
nuclear submarines and power plants.
    This short history doesn't include the other Department of 
Energy facilities in Lucky and Painesville, in Ashtabula and 
the larger city of Columbus. Every month, literally, my office 
receives requests from constituents asking for help in 
navigating this complex and complicated program.
    In August, Deb Garrison, from Yellow Springs community in 
Green County near Dayton, shared her EEOICPA experience with my 
office. She told me how her father died in 1960, just 3 years 
after retiring from his 8 years of service at the Mound Lab in 
Miamisburg. She described how her mother, attempting to file 
for compensation, could not complete her claim as a result of 
her own failing health. Picking up where her mother left off, 
Ms. Garrison, after months and months of work, is still 
navigating the bureaucracy. She's now in a fourth dose 
reconstruction, has no real idea when her mother's claim will 
finally be resolved.
    Sadly, her story is not unique. I'm sure all of us here 
today have heard similar stories from Tennessee constituents, 
New Mexican constituents, others.
    The list of hurdles this program faces is not short, many 
of the program's claimants are older, sometimes ill, often 
dealing with rare diseases that the medical community is still 
learning about. Records needed to substantiate work histories 
and job descriptions are still classified, sometimes, simply, 
they don't exist.
    But these obstacles can't be excuses. Reports of the 
program's delays and inaction and ineffectiveness are not 
simply just disheartening and disappointing, they're a breach 
of trust from our government to our citizens.
    Former nuclear workers shouldn't have to navigate an overly 
complex and seemingly never-ending bureaucratic maze, or be 
required to prove the un-provable. They deserve a program that 
treats them with dignity and respect, they deserve fair 
judgments, and timely, transparent process. They deserve the 
compensation promised to them.
    As this hearing moves forward, our priorities must not be 
to point fingers, we must focus on the claimants and their 
experiences examining the details of the program from their 
perspective. We must stay focused on Ms. Garrison and all of 
the people like her, struggling to make sense of this program.
    Thank you, Mr. Chairman.
    Senator Bingaman. Senator Allard.

                      Statement of Senator Allard

    Senator Allard. Mr. Chairman, I do have a brief statement, 
and first of all, I just want to thank you and Senator 
Alexander both for putting together this hearing.
    This is important to those of us who come from States where 
we have Department of Energy employees who have worked around 
nuclear facilities.
    I appreciate the testimony of the witnesses here today, and 
I would like to extend a special welcome to the workers and 
their families who are in the audience. This hearing presents 
an opportunity to discuss very important issues facing the 
system, and process in place to compensate employees and their 
families who worked in nuclear weapons facilities during the 
cold war.
    Enacted in 2001, and then amended again in 2004, the Energy 
Employees Occupational Illness Compensation Act is essentially 
a Federal workers compensation program designed to provide 
benefits to certain nuclear workers and their survivors.
    In my home State of Colorado, men and women of Rocky Flats 
and their nuclear weapons facility sites on the Western Slope 
have struggled for some time to receive compensation, but have 
seen little resolution.
    I've been supportive of the Rocky Flats workforce, and will 
continue to be an advocate of their efforts. As a Member of 
Congress who helped authorize the EEOICPA program, I know 
firsthand that Congress' intent was to honor and care for our 
cold war veterans, our Nation's heroes, who have become ill 
while working at Rocky Flats, and other DOE facilities.
    This program is about people and science, and doing the 
right thing, not politics. Thank you, Mr. Chairman.
    Senator Bingaman. Senator Murray, did you have a statement 
you want to make?

                      Statement of Senator Murray

    Senator Murray. A very brief one. Thank you very much, Mr. 
Chairman, and Senator Alexander, for calling this hearing.
    This is an important issue to me, because it does affect 
many families in my home State of Washington. We have thousands 
of workers at the Hanford plant near the tri-cities, who 
produced plutonium for the Manhattan Project, and helped 
America win World War II and the cold war. Now many of these 
brave men and women are ill, as a result of their service, and 
they and their families are suffering some of the painful 
consequences of their commitment to our national security.
    We're here today because it is our responsibility to ensure 
that these men and women are receiving the compensation we 
promised them, in a fair and timely manner. I'm really glad 
we're holding this hearing, because I do have some questions 
about how the Federal Government is administering this 
compensation program. I'm concerned about how long it takes to 
process claims, because many people are waiting far too long 
for a final decision.
    I'm very troubled that workers and their families find it 
very difficult to get information about the status of their 
claims, and I want to know what we can do to make this process 
more transparent.
    I'm especially interested to hear more about a recent 
request by some of our Hanford workers, to get a special 
classification that will make it easier for them to get their 
    Our government has a responsibility to those who gave so 
much of themselves to our country. These sick workers and their 
families shouldn't have to struggle with a frustrating 
bureaucracy as they seek their compensation.
    Mr. Chairman, thank you very much for holding this hearing, 
and I look forward to hearing from all of our witnesses today.
    [The prepared statement of Senator Murray follows:]

                  Prepared Statement of Senator Murray

    Thank you, Mr. Chairman, for calling this important hearing 
to help us determine whether the Federal Government's 
compensation program for our Nation's energy workers is serving 
our cold war heroes adequately.
    Many of these brave men and women and their families have 
suffered painful consequences from their commitment to our 
national security. We're here today because it's our 
responsibility to ensure they're receiving the compensation 
promised them in a fair and timely manner. I'm glad we're 
holding this hearing, because I have questions about how the 
Federal Government is administering the program:

     I'm concerned about how long it takes to process 
claims--too many people have been waiting far too long for a 
final decision.
     I'm also troubled that workers and their families 
find it difficult to get information about the status of their 
     And I want to know what we can do to make the 
process more transparent.

    I know that many of the Senators here with me represent 
States where these heroes worked for years. They've heard first 
hand how exposure to dangerous radiation and toxic substances 
affected families for generations. Unfortunately, the same is 
true for the workers in my home State of Washington.
    The Hanford facility, near the Tri-Cities in Washington 
State, began more than 60 years ago as a plutonium production 
site on the Columbia River. During its peak years, nearly 
50,000 employees worked at Hanford, where they played a vital 
role in the Manhattan Project. Residents of the surrounding 
area sacrificed to help America win World War II and the cold 
    Today, it is the Nation's most contaminated nuclear site 
and the largest environmental cleanup project in U.S. history. 
Nearly half the size of the State of Rhode Island--the site is 
imposing. Approximately 11,000 workers are part of the cleanup 
effort. We know that working with such hazardous materials 
impacted the environment and harmed many of the workers who 
dutifully served their country at a difficult time during our 
Nation's history.
    I've heard countless stories of workers and survivors 
who've waited too long for a response to their concerns or 
claims. Thousands in Washington State and across the country 
are stuck in a long and arduous filing process that often 
continues after the worker has lost their life to dangerous 
exposures. The pain that accompanies illness and loss should 
not be compounded by bureaucratic and administrative 
    During my time in the Senate, I've pushed the Federal 
Government to do the right thing by those at Hanford--to 
adequately compensate workers and their families and cleanup 
the Hanford site for the well-being of those who live and work 
in the surrounding communities. It's hard to believe that it's 
been 6 years since I helped to create the Senate Nuclear 
Cleanup Caucus--a bipartisan effort to increase funding for 
nuclear waste cleanup. And I'll continue that fight until the 
job is done.
    Because of the incompetence of officials in processing 
claims at the Department of Energy, 2 years ago a number of us 
worked to move this compensation program to DOL. I'm anxious to 
learn how things are going and what we can do better for those 
who've suffered so much. As I said earlier, I have concerns 
about how the program is being carried out. We must ask those 
responsible for administering the program some basic questions:

     How can we shorten the time it takes for a 
claimant to get a final decision from the Department of Labor?
     How can the Department better assist claimants in 
retrieving their records?
     How can the Department communicate more clearly 
and openly with claimants?
     How can we make the entire applicant process more 
accessible, transparent, and user-friendly?

    And I'm particularly interested to hear more about a recent 
request by Hanford workers to get a special classification that 
will make it easier for them to get benefits.
    As we examine these critical questions, I would encourage 
the agencies involved to hold themselves accountable to these 
heroes and their families by measuring their service and making 
the process as transparent as possible.
    I would also encourage the Department of Labor to maintain 
the office of the ombudsman so that applicants have a place to 
go for help navigating such a complex program. I applaud the 
work that the office has done over the last 2 years.
    Mr. Chairman, our government has a responsibility to those 
who gave so much of themselves for our country. These sick 
workers and their families shouldn't have to struggle with a 
frustrating bureaucracy as they seek compensation. I look 
forward to hearing from the witnesses about the government's 
progress with this program, and learning more about how we can 
make it more responsive to the thousands of claimants still 
waiting for a decision.

    Senator Bingaman. Well, thank you very much.
    We have two panels of witnesses. On the first panel we have 
Shelby Hallmark who is the Director of the Office of Workers' 
Compensation Programs in the Department of Labor, thank you 
very much for being here.
    Dr. John Howard, who is the Director of the National 
Institute for Occupational Safety and Health, thank you very 
much for being here.
    Mr. Malcolm Nelson who is the Ombudsman with the Energy 
Employee Compensation Program in the Department of Labor. Thank 
you very much.
    Also, Senator Harry Reid has indicated that he would like 
to come and make a statement to the committee. Because of his 
time pressures, if he does come, I may insert him in between 
one of you witnesses, I'm sure you can understand that. But why 
don't we go right ahead and hear from each of you in the order 
that I introduced you, and then we will have some questions.
    Mr. Hallmark.


    Mr. Hallmark. Good morning, Mr. Chairman, and committee 
members. It's my pleasure to be here to discuss the Department 
of Labor's management of the Energy Employees Occupational 
Illness Compensation Program Act or as we call it, EEOICPA. The 
Program actually got off to a slow start, because it takes so 
long to read the name.
    The question today, is EEOICPA being administered well and 
is it claimant friendly.
    DOL recognizes nuclear weapon workers' service to our 
Nation, and the hardships many have endured. We know how long 
they've waited for compensation; first for the passage of this 
statute, and then for their claims to be processed, in some 
cases, multiple times.
    We are also aware that most of our claimants are elderly 
and seriously ill. My written testimony explains at length the 
many ways that our program at DOL reaches out to inform, assist 
and support these workers and their families, often helping to 
prove claims in ways that the families aren't even aware of.
    But, I also hear about special efforts that we've made on a 
particular case. Just last Wednesday, our office in 
Jacksonville learned of a former Oak Ridge worker who had been 
given no more than 24 hours to live. They had already done an 
expedited award for this gentleman, but forms needed signing, 
and there was little time. Our resource center manager there at 
Oak Ridge went to the hospital personally, and obtained the 
signatures from this sick individual. Staff in Washington, DC. 
talked Treasury into issuing a same-day payment--which they 
don't like to do--and on Thursday, this gentleman was comforted 
to learn that his family had the money in-hand. He, 
unfortunately, died on Friday.
    These kinds of stories are repeated time and again. On 
October 1, for example, Jacksonville got a brand-new claim from 
a terminally ill Oak Ridge woman. Somehow, they managed to 
issue payments totaling $387,500 on October 9. Had they not 
done that, her entire benefit would have died with her, because 
she did not have eligible survivors. She died on October 14.
    Beyond the question of service and assistance, however, the 
true test of this program is whether those Congress intended to 
be compensated are, in fact, getting paid. By this measure, 
EEOICPA is clearly exceeding expectations. In just over 6 
years, DOL has paid out more than $3.2 billion to nearly 35,000 
recipients. That is a real achievement.
    Very few of these workers won State Workers' Comp benefits, 
and in 4 years of the old Part D program, the Department of 
Energy, only a million dollars was paid out.
    CBO assumed in 2000 that only 460 individuals would be paid 
via the dose reconstruction process in 10 years. In fact, there 
have been 4,900 such payments in only 6 years. And CBO 
estimated an $840 million payoff for Part E in 10 years, and 
DOL has exceeded that amount in less than 3 years.
    When clearly invalid applications are set aside, more than 
half of Part B and Part E cases are being approved. The current 
program, whatever its faults, is delivering benefits.
    The last key measure of claimant friendliness is the speed 
with which decisions are rendered. Workers and their families 
deserve an expeditious decision, even though their cases are 
complicated. In this arena, we have not been as successful as 
we would like. The dose reconstruction process is complex and 
time-consuming. Although it's getting quicker now, on average, 
since the beginning of the program, it's taken 2 years for a 
case to clear through NIOSH, and nearly 3 years when DOL's 
additional processing to those cases is added.
    I don't blame claimants for being frustrated with that kind 
of delay. We are able to decide Part B cases that don't go to 
NIOSH more rapidly, at about 250 days. That's still not fast 
    With the advent of Part E in 2005, DOL is obliged to take 
on an entirely new program, it's huge AIDs backlog, and to meld 
it with our existing one. We promised those who have been 
waiting for years at DOE that they would not have to go to the 
back of the line. And we followed through on that promise.
    Our key goal last year was to issue at least an initial 
determination on every single one of those cases we inherited 
from DOE, that was 26,000 cases. I'm proud to say we met that 
goal on the last day of the fiscal year. That group of 
claimants has now received almost one-half billion dollars in 
Part E benefits.
    Unfortunately, the need to focus on those old cases, plus 
the addition of new, special exposure classes, and the need to 
reopen and send thousands of cases back to NIOSH due to changes 
in their procedures, has slowed DOL processing of the newer 
claims. I'm not satisfied with our current processing speed, 
but we will fix it. We're committed to erasing the backlog of 
claims and reach a steady stayed posture by the end of this 
fiscal year. To do so, I've authorized staffing up immediately 
from our 525 current Federal employees, to nearly 600 FTE.
    We work hard to get payments to eligible claimants, but 
some don't meet the legal criteria and it's also our job to 
promptly, objectively and sympathetically tell those claimants 
no. This isn't easy for anyone to hear. Most are convinced that 
their work caused their illness, and some are sure that denials 
mean that the government is simply abusing them all over again. 
I can't speak for the cold war past, but the Department of 
Labor is delivering this program in accordance with the law, 
and with all the fairness, compassion and speed we can muster.
    I'll be happy to answer your questions.
    [The prepared statement of Mr. Hallmark follows:]
                 Prepared Statement of Shelby Hallmark
    Good morning Chairman Kennedy, Ranking Member Enzi and members of 
the committee. My name is Shelby Hallmark and I am the Director of the 
Office of Workers' Compensation Programs, a component of the Employment 
Standards Administration of the U.S. Department of Labor (DOL). I am 
pleased to appear before the committee today to discuss our efforts to 
fulfill the promise made to veterans of the cold war with the enactment 
of the Energy Employees Occupational Illness Compensation Program Act 
(EEOICPA). During the cold war era, thousands of workers served the 
Nation in building its nuclear defense programs. Many of these workers 
were exposed to radioactive and toxic substances that caused serious 
illness or death. The EEOICPA compensation and benefits provided at the 
Federal level are intended to minimize the financial hardships of 
claimants who have developed occupational illnesses related to the 
production and testing of nuclear weapons.
    In previous testimony, I have highlighted the dedication of the DOL 
staff to ensure that we adjudicate claims and provide benefits to 
eligible workers and their survivors in a manner that is timely, fair, 
consistent, and according to the law as enacted by Congress. We do our 
best to administer the program in the best interest of the workers and 
survivors for which it was intended, and as outlined in the statute--
and we believe the results demonstrate that the promise of the statute 
is being kept.
    ``is eeoicpa being administered in a claimant friendly manner?''
    DOL has been working since the inception of EEOICPA to address the 
concerns of stakeholders. We have designed and implemented our program 
to provide a wealth of assistance and multiple opportunities for 
claimants to obtain information, request reconsideration of decisions, 
and otherwise better understand the process. I will outline some of 
those efforts below.
    In any compensation program, including EEOICPA, the administering 
agency has a dual role of service to claimants and program stewardship. 
Stewardship means we must adhere to the statute's eligibility criteria 
established in law, and thus some claims will be unsuccessful. Even for 
denied cases, however, DOL seeks to provide as clear, helpful, and 
prompt a process as possible, so that claimants fully understand why 
they received the decision they did, and what their options are if they 
                        the adjudication process
    Our adjudication process is the primary means whereby we assist 
claimants in pursuing and perfecting their claims. At the outset, DOL 
moved quickly to establish a fair but streamlined and flexible 
adjudication structure. Thanks to the dedication of our staff and 
managers, we have been able to modify our strategies over the years to 
address the frequent and substantial changes in this program. From the 
start we have been keenly aware that EEOICPA is a complex law and that 
our claimants are generally ill and elderly, and have been awaiting 
compensation for their sacrifices for a long time. Our staff works hard 
to process claims fairly and promptly, and has made extraordinary 
efforts to help suffering nuclear workers and their families.
    DOL strives to clearly inform claimants about EEOICPA requirements 
and benefits as well as DOL's adjudication process, including the 
process for objecting to our decisions. In the first phase, DOL (via 
our Resource Centers) helps claimants gather information and file 
applications for benefits. Next, the claim is forwarded to a DOL 
district office for development and adjudication. During the 
development phase, claims examiners do all they can to help claimants 
collect evidence to support their claims. Following collection and 
review of the evidence, the district office will issue a recommended 
decision to accept or deny benefits.
    If the case involves a claim of radiation-induced cancer, and is 
not covered by a Special Exposure Cohort (SEC) class (i.e., the cancer 
was not 1 of the 22 listed cancers for which SEC covered claims are 
presumed to have been caused by workplace radiation, or the work was 
not at an SEC facility, or the work was at an SEC facility but did not 
meet the 250-work day requirement), DOL must request and receive a dose 
reconstruction report from the National Institute for Occupational 
Safety and Health (NIOSH) before issuing a recommended decision. DOL 
then uses the information in NIOSH's report to determine if the 
worker's exposure meets the statutory minimum test that the illness had 
a 50 percent or greater probability of being caused by work-related 
exposure. In these cases, the ``probability of causation'' outcome is 
the key determinate in the recommended decision.
    All recommended decisions are sent to the claimant with a detailed 
explanation of the decision, as well as an explanation of the 
claimant's rights and the process for formally objecting to the 
recommendation. At this point, the recommended decision is also 
forwarded to the Final Adjudication Branch (FAB) for a final decision. 
The FAB is a separate and independent component from the district 
office. In the final decision phase, claimants can object to the 
recommended decision and have a formal review of the written record or 
an oral hearing. The FAB may also remand a decision back to the 
district office if further development of the case is needed. 
Ultimately, the FAB reviews all recommended decisions and any evidence/
testimony submitted by the claimant and issues a final decision.
    The last administrative step, reconsideration, is for the 
claimant's benefit. If the claimant objects to the final decision, he/
she may request a reconsideration of the claim within thirty (30) 
calendar days. As a further protection for claimants, we do not close 
the evidentiary record when our administrative process is completed. A 
claimant may request a reopening of his or her claim at any time if 
there is new or compelling evidence. Lastly, the claimant may appeal a 
final decision to the U.S. District Court.
    This procedural structure provides the foundation for a system of 
claims adjudication that allows for multiple opportunities for 
claimants to perfect their claim. However, we do not rely only on our 
administrative procedures to provide claimants every possible 
opportunity to receive a positive outcome; we make efforts at each 
stage of the process to assist them. We strive to foster an 
organizational culture wherein our claims staff knows their job is to 
ensure that all eligible claimants are compensated, not merely to close 
claims as quickly as possible.
         dol claimant assistance, customer service and outreach
    The EEOICPA is complex in terms of its clientele, the exposures and 
types of diseases involved, the science used in determining causation, 
the multiple agencies engaged in delivering the program, and the 
various types of compensation and medical benefits available. A total 
of 64,187 workers are represented by the 108,172 cases reported under 
the EEOICPA. This includes employees who worked in a broad range of 
occupations and professions at one (or more) of the 130 facilities 
identified as Department of Energy (DOE) facilities, 200-plus 
facilities identified as atomic weapons employers (AWEs), 70-plus 
beryllium vendors, and 4,000-plus uranium mines or mills covered by the 
EEOICPA. These workers suffer from a broad range of illnesses. In some 
cases, we have experienced difficulty in locating employment records to 
support claims. Many claimants have found it difficult to obtain 
documentation that can establish exposure to radiation and toxic 
substances due in large part to the secrecy and lack of information 
available about nuclear weapons production processes. Others struggle 
to locate medical records. Nearly all find it difficult to understand 
the complexities of the statute, and the differing eligibility rules 
under its various provisions. Their advanced ages and poor health only 
magnify these difficulties. If the worker is deceased, the survivors 
may not even be aware of their parent's, grandparent's or other family 
member's work history and may not have access to the documents and 
records required to support a claim.
    All of these factors have required extraordinary efforts by DOL to 
not only inform the public about EEOICPA but to assist covered workers 
and their families who may be eligible for benefits. DOL continues to 
employ a wide range of outreach activities to educate the public and to 
provide specific assistance to claimants in completing forms, 
navigating through the process of submitting evidence and other 
information, and understanding the adjudication process from start to 
            assistance in obtaining employment verification
    DOL understands the difficulties claimants may have in locating 
employment records that are necessary to substantiate a claim, and has 
taken steps to provide meaningful assistance. DOL and DOE use a DOE 
database for on-line employment verification of some claims. DOL also 
has a contract with the Center to Protect Workers' Rights (CPWR) to 
secure employment information for subcontractors. For example, CPWR 
helps to obtain information about construction workers who may have 
been exposed at DOE sites but whose employment information was not 
captured in DOE's prime contractor data sets. DOL also works with DOE's 
Former Workers Program, and with other contractors, to locate 
appropriate records that are not immediately available through DOE. 
These key relationships help relieve the burden on the claimants to 
attempt to locate records. Another source of information is the Social 
Security Administration; with the claimant's permission, we can request 
earnings data to verify a claimant's work history.
                            resource centers
    DOL operates 11 Resource Centers (RCs)\1\ where knowledgeable staff 
work one-on-one with claimants to file forms, and gather and submit 
pertinent information for their claims. These RCs are located near 
major nuclear weapon production and testing facilities to serve 
locations with the highest claimant populations. The RCs handle the 
initial intake of information from claimants (i.e., claims forms, 
occupational history, and employment verification \2\ and send 
completed claims to the DOL's district offices. RC staff meets face-to-
face with claimants and works via DOL's toll-free telephone service to 
provide all relevant information at the initial stages of claim 
submission and to answer any questions. They also participate in 
numerous local events to communicate with various stakeholder groups 
and potential claimants. We monitor the performance of the RCs via 
accountability reviews and direct feedback from our district offices, 
and they continue to provide high-
quality service to claimants.
    \1\ Resource Center locations include: Livermore, California; 
Westminster, Colorado; Idaho Falls, Idaho; Paducah, Kentucky; Las 
Vegas, Nevada; Espanola, New Mexico; Amherst, New York; Portsmouth, 
Ohio; North Augusta, South Carolina; Oak Ridge, Tennessee; and 
Richland, Washington.
    \2\ To date, RCs have processed more than 16,600 employment 
verifications and over 15,400 occupational history questionnaires.
      special impairment and wage-loss benefits projects (part e)
    In 2006, DOL recognized that many claimants (including those who 
received a positive causation determination) were not submitting Part E 
claims for impairment and wage-loss benefits, due to their confusion 
over the complexity of the benefit structure. In response, we 
immediately tasked the RCs with the critical role of helping claimants 
understand their potential eligibility for Part E benefits. RC staff 
contacted eligible claimants to explain impairment and wage-loss 
benefits and offered one-on-one assistance to individuals who sought to 
file claims.
    Because of our concern that many living workers appeared to be 
uncertain about filing for Part E impairment or wage-loss benefits, we 
established a special performance target for the district offices to 
ensure that at least half of the cases potentially eligible for such 
benefits would receive a decision on that issue in fiscal year 2007. We 
exceeded that goal, with 58 percent of the cases receiving a decision 
or an affirmative determination that the claimant did not want to 
pursue such benefits. As a result of this effort, we made over 1,250 
impairment-rating payments in fiscal year 2007--a six-fold increase 
from fiscal year 2006.
                    avoiding ``extinguished claims''
    Because many of our claimants are elderly and very ill, we try to 
see to it that eligible claimants who are near death receive their 
benefits. However, when a claimant dies before a decision is made or 
before receipt of benefits, DOL will work with the survivors to reapply 
and to speed that process. While the death of even a single eligible 
employee or survivor prior to payment is extremely unfortunate, our 
records show that this rarely occurs. Of the more than 20,000 Part B 
cases and 14,000 Part E cases that have an initial decision awarding 
benefits, only 64 cases involved eligible workers or survivors who died 
before payment and the benefits were ``extinguished'' (that is, no 
other member of the family was eligible). In 35 of the 64 cases, the 
family received Part B payments, but could not receive Part E benefits, 
primarily because the definition of ``survivor'' in the Part E statute 
is narrower than that specified in Part B. For the remaining 29 cases, 
no payments were made under either Part B or Part E of the Act. We 
regret that any family suffers in this way, and our staff continues to 
work as diligently as possible to prevent this unfortunate scenario 
from occurring.
                     roundtables on toxic exposures
    DOL also understands the difficulties claimants have in locating 
exposure records that are necessary to substantiate their claims. DOL 
has sent teams to DOE facilities to work jointly with DOE to collect 
records that describe the types of toxic materials present at DOE work 
sites and how these materials were used. Since 2006, DOL has conducted 
86 roundtable meetings nationwide, meeting face-to-face with 918 
workers from 48 DOE sites. The roundtable meetings have allowed DOL to 
identify toxic materials present at DOE sites, learn how the toxic 
materials were used, investigate how workers may have been protected 
from those substances, and find out whether there were any toxic 
material incidents. During these meetings, workers were encouraged to 
provide documents that might shed light on the use of toxic substances 
at the site or to provide information they may have regarding where 
such documents may be found. These efforts have proven invaluable and 
have resulted in over 100 toxic substances being identified and 
verified at DOE sites that may not have otherwise been found. DOL also 
has interviewed former workers of Radiation Exposure Compensation Act 
(RECA)-covered facilities in the uranium mining and milling industry.
                  district medical consultants (dmcs)
    DOL also contracted with more than 200 physicians throughout the 
country to assess medical evidence used in issuing decisions related to 
causation and impairment. The DMCs work with DOL to review particularly 
difficult claims and assist in cases where claimants do not otherwise 
have access to a physician who can provide an impairment evaluation 
utilizing the AMA Guides.
                 site exposure matrices (sem) database
    Another way that we help claimants in assembling their evidence is 
through the Site Exposures Matrices (SEM) database. In fact, for the 
great majority of claimants, the SEM relieves some of the burden of 
providing information and records regarding workplace exposures. After 
years of work with DOE, we developed the SEM in 2006 to be a repository 
of information on toxic substances present at covered facilities. This 
information can be accessed by our claims examiners and by claimants 
(via DOL's public Web site). While inclusion in the SEM is sufficient 
evidence of the presence of specific toxic substances, our claims staff 
makes additional efforts if claimants allege exposure to substances not 
found in SEM. The SEM database now houses information on 2,581 toxic 
substances/chemicals at 33 DOE sites, as well as 4,170 uranium mines, 
48 uranium mills, and 17 uranium ore-buying stations covered under RECA 
                     extensive dol eeoicpa web site
    This year, DOL updated and improved its EEOICPA Web site. The Web 
site allows claimants to access claim forms and to complete and file 
claims electronically. The Web site also provides searchable access to 
the program's regulations, procedures, and instructive final decisions; 
a link to the list of covered facilities; the program's current 
statistics, including claims status and payments made at every EEOICPA 
site; links to NIOSH, DOE and the Department of Justice (DOJ); a page 
for medical providers; and information on the medical billing process. 
The public also may access an online version of our SEM database and 
may submit information relative to worksite toxic substances. This 
effort has resulted in several hundred substances being identified and 
added to the SEM.
      access to dol district offices and final adjudication branch
    Each of our four district offices and the Final Adjudication Branch 
have toll-free telephone lines and provide prompt response to thousands 
of inquiries each year. The quality and promptness of staff responses 
to telephone calls and letters is monitored at the office and 
individual employee level, and improving the accuracy and timeliness of 
responses will receive increased focus in fiscal year 2008.
                           town hall meetings
    DOL remains dedicated to reaching out to the public to increase 
awareness of the EEOICPA and to alleviating the burden on the claimants 
by assisting them at all stages of the adjudication process. Since the 
beginning of the program, our Traveling Resource Centers have provided 
program information and claims assistance to people who live outside 
the immediate areas of our district offices and RCs. DOL also held 
numerous, well-publicized Town Hall Meetings in various locations 
throughout the country where there was a significant population of 
individuals currently or formerly employed at covered facilities. DOE, 
DOJ, and NIOSH have participated in these meetings, providing 
information and answering questions about their responsibilities under 
the statute. DOL has continued these meetings as new regulations and 
procedures are developed. We also have held Focus Group meetings with 
claimants, as we have realized that claimants' questions about medical 
benefits and Part E benefits have demanded more personal attention.
    In 2007, Town Hall and Focus Group Meetings were held (or will soon 
be held) in Oak Ridge, Tennessee; Kennewick, Washington; Albuquerque 
and Santa Fe, New Mexico; and North Augusta, South Carolina. These 
meetings give DOL officials the opportunity to meet with claimants who 
were identified as having a positive causation determination, to 
explain additional wage loss and impairment benefits available to them 
under Part E, as well as to obtain feedback on the claims process. The 
focus groups give claimants an opportunity to discuss the difficulties 
they have encountered with the medical bill payment process. As a 
result of the feedback we have received, DOL is increasing our outreach 
efforts to medical providers and is taking steps to simplify the 
medical provider enrollment process. DOL has also developed an action 
plan to make our processes more claimant-friendly.
 outreach to reca claimants (uranium miners, millers and transporters)
    DOL has also strengthened its outreach to RECA claimants. There are 
three federally funded programs assisting uranium workers potentially 
eligible for some form of Federal compensation: (1) EEOICPA--
administered by DOL; (2) the Radiation Exposure Screening and Education 
Program--administered by the Department of Health and Human Services 
(HHS); and (3) RECA--administered by DOJ. These agencies are hosting 
town hall meetings to provide general program information to uranium 
workers regarding EEOICPA benefits and those of the HHS and DOJ 
programs. Meetings were held on October 2, 2007 in Grand Junction, 
Colorado, and on October 4, 2007 in Moab, Utah. Additional town hall 
meetings are scheduled for November 14, 2007 in Shiprock, New Mexico, 
and November 15, 2007 in Grants, New Mexico.
        significant administrative challenges remain for eeoicpa
    DOL has faced major challenges as the program has matured and 
changed--with the resultant shifts in workload and priorities. Most 
notably, in 2004, after nearing steady state in our handling of Part B 
claims, we were tasked with the new Part E program. During fiscal year 
2005-2007 we devoted the lion's share of our attention to implementing 
Part E, which involved our management of 25,000 aged cases from the 
DOE's old Part D operation. Unfortunately, most of the old Part D (now 
Part E) cases were already 4 years old when we received them. Part of 
our representation to Congress at that time was that these individuals 
would not have to ``go back to the end of the line,'' and we have 
worked hard to keep that commitment. I will address our actions to 
fulfill that promise in greater detail later on, but as of September 
30, 2007, all cases that we had inherited from DOE have received at 
least an initial determination.
    In addition, to ensure that Part E claimants receive all benefits 
due, we focused on identifying and paying valid impairment rating cases 
during fiscal year 2007. These initiatives were successful, but as a 
result of our necessary focus on older cases, the speed with which DOL 
could address newer claims, both Part B and Part E, was diminished.
    Similar impacts have been, and will continue to be, felt by DOL as 
a result of program changes emanating from NIOSH. These include the 
creation of new Special Exposure Cohort (SEC) classes and NIOSH changes 
to its dose reconstruction procedures--activities that consume the time 
of both DOL and NIOSH to identify cases that need to be either 
withdrawn from or returned to NIOSH for a new dose reconstruction. 
These issues are described in greater detail below. The addition of new 
SEC classes (24 classes to date) has required analysis and dialogue to 
fully understand this evolution and its potential impact on the 
                          new sec designations
    In the early years of the program, it was believed that few, if 
any, additions to the SEC would be made, and that any new classes would 
be narrowly drawn. NIOSH was confident that they could do a dose 
reconstruction for almost any case. As the program matured, NIOSH found 
that many types of data were missing or could not be relied upon for 
dose reconstructions--giving rise to the addition of new SEC classes. 
As HHS determines and introduces new SEC classes into the claims 
process, DOL's role is to adjudicate claims based on the definitions of 
these classes, explain the effect of HHS's SEC decisions to 
stakeholders, and ultimately, assist DOJ in defending compensation 
decisions in Federal district court.
    For each new class, DOL, in consultation with NIOSH, advises its 
claims staff on how to interpret the class definition, and how to 
identify which cases are covered by the class (and thus need immediate 
processing under presumptive rules) and which are not. When an HHS SEC 
designation contained an imprecise class definition such as the first 
Y-12 designation--DOL staff encountered greater problems in 
adjudicating the coverage of the class, and those cases took longer to 
decide. DOL now works with NIOSH to ensure that the class definitions 
are precise and can be properly interpreted by DOL staff. This has 
resulted in increased timeliness.
    Under the statute, the designation of a class as an SEC means that 
members of the class who suffer from one of the cancers listed in the 
statute are presumptively entitled to Part B benefits. Since each new 
SEC class designation is unique in its rationale and in its impact on 
how (or if ) dose reconstruction can be done for those cancers that do 
not have presumptive entitlement, DOL and NIOSH have had to coordinate 
unique procedures for each class. For example, if a worker from an SEC-
covered facility has a non-presumptive illness, typically NIOSH will 
only be able to conduct a ``partial dose reconstruction'' because some 
data has been found to be missing or unusable. If the outcome is 
negative for the worker, DOL staff must then explain to the claimant 
why the SEC designation had this negative impact on him or her.
    When a new SEC class is designated, DOL takes steps to ensure that 
workers' claims are reviewed timely for potential inclusion in the SEC 
and rapid payment for those who are covered. However, the complexity of 
this process and the slow unfolding of new SEC classes have reduced the 
overall speed and efficiency of the claims process, and often leaves 
claimants and other stakeholders confused while waiting for a 
determination. For example, an SEC class was declared for a small 
subset of buildings within the Los Alamos National Laboratory in 
December 2006, only to be subsumed in a larger SEC class declared 6 
months later. Similarly, before NIOSH determined that an SEC class was 
required for the Hanford site for the World War II era, it had already 
completed 328 of 378 relevant dose reconstructions (86 percent of cases 
involving the years in the SEC).
                    the dose reconstruction process
    The dose reconstruction process is complex, confusing to the 
public, and time-
consuming. Our records show that, on average, cases requiring dose 
reconstruction have taken over 2 years and 10 months to reach a final 
decision. Of that time, the case remains with NIOSH for an average of 
over 2 years. I should note that during the past year, NIOSH's time to 
produce dose reconstructions has been reduced significantly. In these 
cases, DOL must wait for NIOSH to perform the dose reconstruction and 
return the results to DOL before we can adjudicate the claim. Since the 
inception of the programs, our statistics on cases where no dose 
reconstruction is required from NIOSH indicates that it takes DOL an 
average of 6 months to issue a recommended decision, and an additional 
73 days to issue a final decision. Unfortunately, in fiscal year 2007, 
the DOL-only average for Part B recommended decisions rose by about 60 
days as we focused on eliminating the old Part D backlog that we 
inherited from DOE. We will continue to work to reduce the average time 
it takes to complete our processes, and expect this measure to improve 
over time. For SEC claims that had to be withdrawn from NIOSH, our 
records show that these SEC claims have taken an average of 1,278 days 
to reach a final decision. Of that time, the case remained with NIOSH 
for an average of 905 days. The following chart demonstrates these 


    DOL's claims process requires that a claims examiner, after 
receiving a dose reconstruction report from NIOSH, review the report 
for accuracy and consistency prior to issuing a recommended decision on 
a case. Therefore, claims examiners will check for anomalies in the 
reports which require further analysis. For example, if a dose 
reconstruction was conducted based on a different cancer than the one 
used by NIOSH in its initial dose reconstruction, or additional 
evidence was received following or during a dose reconstruction that 
reveals additional employment evidence and/or medical evidence, a 
claims examiner will initiate a rework of the dose reconstruction. In 
all instances, if the information may change the outcome of the dose 
reconstruction or can affect the accuracy of the case, DOL will request 
a rework.
    As of March 31, 2007, Labor had returned 2,811 cases to NIOSH for 
rework. Many of these cases were returned to NIOSH as a result of new 
evidence. The vast majority (87 percent) of the cases returned for 
rework did not previously meet the statutory minimum of having at least 
a 50 percent probability of causation (POC) based on NIOSH's initial 
dose reconstruction, and thus the affected claimants would likely not 
have received compensation. After the rework, 385 of the denials/
negative cases were switched to approvals; and 41 of the positive cases 
were switched to denials. While reworks often lead to favorable 
decisions for some claimants, they represent another workload factor.
    Recently, the pace at which cases must be returned to NIOSH for 
rework of the dose reconstruction has substantially increased because 
of the modifications NIOSH has made to its scientific procedures for 
performing a dose reconstruction. Neither NIOSH nor DOL want to add 
further unnecessary paperwork and heartache for claimants who were 
previously told they were ineligible--only to have that bad news 
repeated as a result of the rework. However, if it is possible that the 
change may alter the dose reconstruction so that a previous denial may 
be overturned, DOL and NIOSH have agreed that these claimants should 
receive a new dose reconstruction report so their due process rights 
are protected. If NIOSH cannot determine the potential impact of the 
change in its procedure, we refer the case to NIOSH for a determination 
if a new dose reconstruction is necessary. To date, we are in the 
process of returning over 4,400 cases to NIOSH for new dose 
reconstructions based on NIOSH's identification of cases that may be 
affected by the new procedures, and we are referring about 5,000 
additional cases to NIOSH for case-specific determinations on the need 
for a new dose reconstruction.
    We work as closely as possible with NIOSH on all of these issues, 
conferring at the staff level on at least a weekly basis to streamline 
the handling of the SEC class and dose reconstruction issues. However, 
as indicated by the sheer numbers of cases requiring return, rework, 
SEC consideration, partial dose reconstructions, or notification of 
NIOSH evaluation of a possible rework--these changes have created a 
substantial and growing burden on DOL's adjudication process and 
decisional timelines.
                        program accomplishments
    Despite these challenges, DOL has made great progress since 2001 in 
implementing Part B of the Act--and similar progress since October 2004 
in implementing Part E. We have set ambitious performance targets--and 
consistently exceeded those targets--to ensure that workers and their 
families, who have waited so long for compensation, receive prompt and 
accurate decisions. An analysis of the overall program statistics shows 
that the Energy Compensation program is moving forward, despite its 
complexity and ongoing change. We continually seek new ways to improve 
and streamline our compensation system and embrace the valuable input 
of the workers and families we serve.
    It has been 6 years since Secretary of Labor Elaine L. Chao issued 
the first EEOICPA benefit check on August 9, 2001. Since then, DOL has 
paid nearly $3.2 billion in total EEOICPA compensation and medical 
benefits to workers and their survivors. Under Part B, DOL has issued 
more than 27,000 payments with compensation totaling nearly $2.2 
billion. Under Part E, DOL has made nearly 7,400 payments with 
compensation totaling nearly $850 million.
    Despite these significant accomplishments, some suggest that DOL 
has denied a high percentage of claims for budget reasons and is 
antagonistic toward claimants. No such animus exists, and I believe 
that impression rests in part on a misunderstanding of the statute's 
requirements. While anyone can file a claim, many applications have 
been filed that do not meet the statute's basic requirements for 
eligibility. This is especially true for those who filed Part B claims 
early in the program, as many of these individuals did not have one of 
the three medical conditions required for Part B eligibility. 
Similarly, many ``adult children'' of deceased workers filed Part D 
(later Part E) claims who did not meet the narrower survivor definition 
that Congress created for Part E.
    If we set aside those applications that do not meet the statutory 
minimum requirements, our records show that over half of the remaining 
claims have been approved under both Parts B and E. Specifically, since 
2001, DOL has received over 59,000 Part B cases and has issued final 
decisions on 83 percent of them. Almost 20,000 have been approved for 
payment (55 percent when non-covered applications are set aside), with 
nearly $2.2 billion in compensation so far.
    After Part E's enactment in 2004, DOE transferred over 25,000 aged 
Part D cases to DOL. In response to this new workload, DOL identified 
certain quick decision claims that met specific, straightforward 
criteria contained in the amendment. Within 2 months of Part E's 
enactment, DOL was paying claimants under the newly established Part E. 
Further, DOL is especially proud of its success in addressing the 
backlog of aged DOE cases. DOL has focused on doing everything it can 
to speed the processing of these cases, which clearly deserved to be 
prioritized, given the long wait these claimants have endured. For 
fiscal year 2007 we set and met a goal to issue at least an initial 
determination for all 25,000 cases inherited from DOE. Additionally, 
DOL has paid nearly $500 million in Part E benefits to this group of 
    Our total Part E workload of 48,925 claims includes more than 
23,000 new Part E claims. Notably, more than 8,000 (17 percent) Part E 
claims were ``non-covered,'' mostly from ``adult children'' who did not 
meet the basic requirements for eligibility. To date, DOL has issued at 
least one final decision on over 70 percent of the (old and new) Part E 
cases. When non-covered claims are set aside, our approval rate on 
covered Part E cases is over 51 percent. To date, DOL has approved 
about 13,500 Part E cases, with payments totaling nearly $850 million.
    The record of DOL's administration of EEOICPA demonstrates that our 
Nation's promises made to our cold war veterans are being kept. Over 
34,000 eligible workers and their survivors have received more than 
$3.2 billion in benefits and medical reimbursements; we have eliminated 
the Part D backlog; and litigation remains remarkably low.
    DOL continues to strengthen its processes and procedures, maintain 
its outreach efforts, improve its service to claimants, and adjudicate 
and pay eligible claims as promptly and accurately as possible. We have 
continually re-evaluated the program's performance goals and 
strategies, and we remain proactive in addressing the many program 
changes that have challenged our operation. I am proud of the efforts 
of our staff in carrying out the important mission of this program.
    I will be glad to answer any questions the committee may have.

    Senator Bingaman. Thank you very much. As I indicated, 
Senator Reid wanted to make a statement on this issue, and why 
don't we go ahead and hear from him, because I'm sure he has 
other commitments this morning.
    So, Senator Reid, go right ahead?

                       Statement of Senator Reid

    Senator Reid. Mr. Chairman, thank you very much, I 
appreciate the attendance of the other members.
    This hearing is very important, dealing with securing 
compensation for sick atomic weapons workers. I've been working 
on this for a long period of time.
    Our country has made progress over the past decade, but the 
Employees Compensation Program is still finding thousands of 
cold war veterans who now have cancer and other illnesses. The 
meetings I hold with these folks in Nevada is really sad--a 
room full of people who are very, very sick.
    The program needs some help, and this hearing is a step in 
the right direction. Eight years ago, I joined with my 
colleagues to pass bipartisan legislation to recognize the 
sacrifices made by these weapons workers. We passed the Energy 
Employees Occupational Illness Compensation Program Act to 
provide workers and their survivors with compensation medical 
    But sadly, years after this program was created, many 
Nevadans with cancer, caused by their service working on atomic 
weapons programs, still are concerned about the lack of care, 
lack of attention. They tell me their sacrifices are being 
ignored, and I hope this committee, as I know it will, begin to 
find some solutions for them today.
    Mr. Chairman, the workforce of the State of Nevada, at the 
Nevada test site was huge, at least by Nevada standards, we had 
over 11,000 workers there for many years. It's, of course, 
dropped significantly.
    Of the nearly 117,500 covered applications, 35,000 have 
received compensation nationally. The situation is worse for 
atomic weapons workers in Nevada. Fewer than 20 percent of 
Nevada test site workers with qualifying illnesses have 
received compensation.
    This program has the right intentions, but it is failing 
thousands of Americans who helped in the cold war. These 
workers did not wear the military uniforms, they weren't even 
military, but they're just as responsible as anyone else for 
winning the cold war.
    When the Energy Employees Occupational Illness Compensation 
Program was crafted, we knew that the Department of Energy did 
not consistently monitor atomic weapons workers for radiation. 
These classified programs were highly secretive, and over the 
years, records were lost or even thrown away. It's also nearly 
impossible to estimate radiation exposure from some worker 
    Mr. Chairman, to hear the stories of these workers, they 
were exposed, they have dust all over them. They were told to 
not even take a shower, continue working. On one occasion I was 
told about a whole dormitory, they learned that the exposure 
was more than it should have been, they were awakened in the 
middle of the night, they were taken outside, they were sprayed 
with a hose, water.
    Information about nuclear testing is held very tightly, and 
it's difficult, we understand, to verify some of these stories. 
But there are witnesses, it's not as if a person is coming in, 
basing it entirely on hearsay. I've heard these stories time 
after time, and I would invite the committee to either send an 
investigator out to hear some of these stories, or in some way, 
I'd be happy to work with the committee to get some of these 
stories so we can look at them, some of the horrible things 
that went on. These are people who now are very, very sick, and 
said they were not exposed to these real things that make you 
    Workers near Ground Zero at the Nevada Test Site, for 
example, would be told not to wear these badges that were 
supposed to indicate how much exposure to radiation you had, so 
they could continue working even after they'd already received 
a full year's dose of radiation. You're supposed to get so much 
in a year, someone would get it in 3 months, someone would get 
it in 1 day. And, if they wanted to keep working, they didn't 
wear their badges anymore.
    The government knew that these workers were exposed to 
cancer-causing materials. If they didn't know, they should have 
known. And these men, and a few women, were encouraged--and 
sometimes ordered--to cover up information about the radiation 
exposure levels.
    We can't change what's already happened, but we can right 
the government's wrongs. We can give these workers and their 
survivors an easier path toward compensation. This program made 
sure that streamlining the process was an option for special 
classes, a special class of claimants. Within this program, 
atomic workers can apply for Special Exposure Cohort status. If 
they receive this designation, workers with qualifying cancers 
are paid benefits without undergoing complicated dose 
reconstruction. Reconstruction dose is difficult, if not 
impossible, especially with the limited radiation monitoring 
data and lost records.
    All Nevada test site workers should have this Special 
Exposure Cohort status. There were approximately 1,000 tests 
held at the Nevada test site, the last one, 15 years ago. Men 
and women who served at the test site after 1963 still have to 
struggle through the program's red tape to be able to be even 
considered for compensation for their illnesses. Only half of 
these claimants even received a final decision.
    Test site workers helped America win the cold war. Now that 
we finally have a program to recognize their sacrifices, 
thousands upon thousands of sick atomic weapons workers are 
still being ignored.
    Mr. Chairman, I have been to the test site, I call it, in 
Hanford, Washington where you have these huge tanks of nuclear 
waste, some of it leaking out, hopefully none of it going into 
the river. Workers exposed to this, the test site, they were 
asked to go back into these tunnels and shafts after a bomb had 
gone off, quickly. Had to keep the work going, more tests were 
    The government then, they did this because they thought 
they were doing the right thing, and they were told it wouldn't 
make them sick. The government's implementation of the rest of 
the Energy Employees Occupational Illness Compensation Program 
should be drastically improved. The existing adjudication 
process is failing to uphold the statutory mandate that the 
process be claimant-friendly.
    And Mr. Chairman, I don't really impugn the hard work of 
Mr. Hallmark, I'm sure he's doing the best he can. But, I am 
very troubled with the lack of quality assurance and 
transparency and the Labor Department's claim adjudication 
procedures. It's unacceptable that a government program of this 
significance has so few quality controls in place. We need to 
restore faith in the claims adjudication process.
    Mr. Chairman, we tried to help World War II veterans. And 
one of the reasons we try to work on some of the programs as 
quickly as we can is they're dying, and it's the same with 
these test site workers--they're dying. A significant obstacle 
for sick atomic workers is the burden of proof they face to 
receive compensation.
    Under the Energy Employees Occupational Illness 
Compensation Program, a claimant has the ultimate burden to 
prove that his or her illness was related to radiation or 
hazardous materials exposure at work.
    This might seem like a standard burden, but remember, it's 
the government's responsibility to maintain employment records 
and information about radiation to which the workers were 
exposed, and in many cases there isn't any. All they have is 
the word of the workers and their colleagues who were there 
with them.
    And these stories that they tell about being awakened in 
the middle of the night, put outside--they were not even told 
to wash their clothes, they wore the same clothes, day after 
day. Even with--and a lot of it had, now we've learned, 
radiological dust on what they were working, and the clothes 
they were working in. But the Labor Department doesn't have the 
records for these people to prove their case, because some of 
them didn't exist.
    Even with our Labor Department's assistance developing 
their cases, sick claimants ultimately pay the price. If their 
employment and medical records are insufficient to meet the 
high burden of proof or the government lost their records, 
these workers likely won't receive compensation.
    None of us intended for the program to be this unforgiving 
to our cold war veterans. Workers were placed in harms' way, 
yet they're asked to work through a complex process and 
shoulder a substantial burden in showing that the cancer or 
other illness was work-related. The least we can do is find a 
way to give sick workers a better chance of meeting this 
burden, so the program actually works in their favor.
    Recently, Labor Secretary Elaine Chao acknowledged the need 
to improve the processing of compensation claims. She noted 
that the time is running out for many families, and that's an 
understatement. It's simply taking too long to compensate many 
    So, Mr. Chairman, members of this committee, I appreciate 
you giving me this opportunity to address the committee. The 
Energy Employees Occupational Illness Compensation Program was 
developed for a good purpose, but it has the potential to be 
even more helpful to our Nation's atomic weapons workers. I 
look forward to working with you and our colleagues to improve 
this program, and to secure compensation for these people who 
really are veterans in the true sense of the word.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Senator Reid follows:]

                   Prepared Statement of Senator Reid

    Thank you Chairman Bingaman for holding this hearing today. 
Securing compensation for sick atomic weapons workers is 
something that we've been working on together for a long time. 
There is no doubt that our country has made progress over the 
past decade. But, the energy employees compensation program is 
still failing thousands of our cold war veterans who now have 
cancer and other illnesses. We must fix this program, and I 
think this hearing is a step in the right direction.
    Eight years ago, I joined my colleagues to pass bipartisan 
legislation to recognize the sacrifices made by atomic weapons 
workers and help them live with terrible diseases caused by 
exposure to radiation and other hazardous materials. We passed 
this law, the Energy Employees Occupational Illness 
Compensation Program Act, to provide workers and their 
survivors with compensation and medical reimbursement in some 
cases. Sadly, 8 years after EEOICPA was created, I still hear 
from many Nevadans who have cancer caused by their service on 
government nuclear weapons programs. They tell me that their 
sacrifices are still being ignored. I am confident we can begin 
to find some solutions for them today.
    Of nearly 117,500 covered applications--covered 
applications are from applicants whose employment and 
sicknesses are covered by EEOICPA--fewer than 35,000 have 
received compensation nationally. That is less than 30 percent. 
The situation is even worse for atomic weapons workers in 
Nevada. Fewer than 20 percent of Nevada Test Site workers with 
qualifying illnesses have received compensation. Chairman 
Bingaman, I think this program has the right intentions, but it 
is clearly failing thousands of Americans who helped us win the 
cold war.
    When EEOICPA was crafted, we knew that the Department of 
Energy did not consistently monitor atomic weapons workers for 
exposure to radiation. These classified programs were highly 
secretive, and over the years records have been lost or even 
thrown away. It is also nearly impossible to estimate radiation 
exposure from some nuclear tests, and monitoring for certain 
cancer-causing radionuclides was simply inadequate. Information 
about nuclear testing is held so tightly, it's sometimes 
difficult to verify workers' stories.
    And I've heard the same terrible stories time after time. 
For example, workers near ground zero at the Nevada Test Site 
would be instructed to not wear their dosimeter badges so they 
could continue working, even after they've already received a 
full year's dose of radiation. Think about that . . . the 
government knew these atomic workers were exposed to cancer-
causing materials. And these men were encouraged to--sometimes 
ordered--to cover up information about their radiation exposure 
    We cannot change what has already happened, but we can 
right our government's wrongs. We can give workers and their 
survivors an easier path towards compensation. EEOICPA made 
sure that streamlining the process was an option for special 
classes of claimants.
    Under this program, atomic workers can apply for Special 
Exposure Cohort status. If they receive SEC designation, 
workers with qualifying cancers are paid benefits without 
undergoing complicated dose reconstruction. Reconstructing dose 
is difficult--especially with limited radiation monitoring data 
and lost records. And we all knew when we passed EEOICPA that 
there could be tens-of-thousands of nuclear weapons workers who 
fit in this category.
    I strongly believe that all Nevada Test Site workers should 
have SEC status. Nine hundred and twenty-eight nuclear tests 
took place in Nevada--the last one in 1992. Men and women who 
served at the Test Site after 1963 still have to struggle 
through the program's red tape to be considered for 
compensation for their cancers. Only half of these claims have 
even received a final decision. NTS workers helped America win 
the cold war, and now that we finally have a program to 
recognize their sacrifices, thousands of sick atomic weapons 
workers are still being ignored.
    While I think that NTS workers should receive SEC status, I 
also recognize that the government's implementation of the rest 
of Parts B and E should be drastically improved. One reason we 
are here today is because there are serious concerns that the 
existing adjudication process is failing to uphold the 
statutory mandate that the process be claimant friendly. I am 
troubled by the lack of quality assurance and transparency of 
the Labor Department's claims adjudication procedures. It is 
unacceptable that a government program of this magnitude and 
significance has so few quality controls in place. We need to 
restore faith in the claims adjudication process.
    A significant obstacle for sick atomic workers is the 
burden of proof they face to receive compensation. Under 
EEOICPA, a claimant has the ultimate burden to prove that his 
or her illness was ``at least as likely as not'' related to 
radiation or hazardous materials exposure at work. This might 
seem like a standard burden; but remember, it is the government 
and its contractors' responsibility to maintain employment 
records and information about the radiation to which workers 
were exposed. Even with the Labor Department's assistance in 
developing their cases, sick claimants ultimately pay the 
price--if their employment or medical records are insufficient 
to meet the high burden of proof, or the government lost their 
records, these workers probably will never receive 
    I don't think any of us intended for EEOICPA to be this 
unforgiving to our cold war veterans. Workers were placed in 
harms way by the government, yet they are asked to work through 
a complex process and shoulder a substantial burden in showing 
that their cancer or other illnesses were work-related. I think 
the least we can do is find a way to give sick workers a better 
chance of meeting this burden so the program actually works in 
their favor.
    Recently Labor Secretary Elaine Chao acknowledged the need 
to improve the processing of EEOICPA claims. She noted that 
``time is running out'' for many families. It is simply taking 
too long to compensate many workers.
    Chairman Bingaman, again I appreciate you giving me this 
opportunity to address the committee. I think EEOICPA has a 
good purpose, but it has the potential to be so much more 
helpful to our Nation's atomic weapons workers. I look forward 
to working with you and our colleagues to improve EEOICPA and 
to secure compensation for cold war veterans in Nevada and 
throughout our country.
    Senator Bingaman. Thank you very much, Senator Reid, and I 
know the importance of this to you and to your constituents, 
and we appreciate your testimony very much. Let me----
    Senator Reid. I suppose I might also say, some of them are 
being rejected because they didn't work there long enough. Mr. 
Chairman, sometimes they were there at the wrong time. They 
happened to be called back in a tunnel too quickly, and many of 
them had been working there a year, or 2 years, but they're 
really sick, and they're being turned down, a lot of times, 
because they didn't work there long enough. So, thank you very 
    Senator Bingaman. Well, thank you, thank you very much, 
again, for your testimony.
    Our next witness is Dr. John Howard, the Director of NIOSH, 
the National Institute for Occupational Safety and Health, why 
don't you go right ahead, Doctor?


    Dr. Howard. Thank you, Mr. Chairman, I'm pleased to be here 
representing the Department of Health and Human Services and 
telling you about some of the progress that we've made under 
the act.
    As of October 16 of this month, 25,494 claims have been 
referred to us by the Department of Labor, action has been 
completed by us on approximately 80 percent of those claims, 
leaving 5,127 claims in active status.
    Twenty-four classes of workers representing 19 facilities 
have been added to the Congressional Special Exposure Cohort, 
to date. Nine of those twenty-four, we have added on our own 
motion and presented them to the Presidential Advisory Board on 
Radiation and Worker Health.
    We always strive to improve the level of service we offer 
to claimants, and we welcome any criticism and suggestions that 
anyone has to help us improve the process.
    To assist the claimants and petitioners in navigating the 
process, which is complex, we have made available two claimant 
ombudspersons, including Ms. Denise Brock, who is a former 
petitioner, who successfully petitioned us for the addition of 
a class at the Mallinckrodt Plant in St. Louis.
    We continue to proactively conduct worker outreach, to 
obtain input on program technical and procedural approaches, we 
sponsor 77 outreach meetings, five town hall meetings, four 
public meetings. We've held five workshops to explain the dose 
reconstruction process, and six SEC worker outreach meetings to 
collect specific information about a particular SEC evaluation 
    In all of our interactions with claimants we strive to, not 
only listen, but to hear, to consider, and to act on the 
information that they provide us in the dose reconstruction 
process. To enhance our external communication with claimants, 
we've revised the packet that we send to claimants, including a 
video. We prepare all of these materials, in preparing these 
materials, we've sought input from the Board, from the claimant 
ombudspersons, and from claimants. We're committed to resolving 
informational and scientific uncertainties, because we do rely 
on science as our first evaluation in the dose reconstruction 
    But we try to resolve all of our uncertainties consistent 
with the act, with the Executive Order and with the regulations 
developed through public rulemaking. We believe that our dose 
reconstructions are grounded in the best available science, but 
when there is uncertainty, we use claimant-favorable 
assumptions to complete the dose reconstruction. These 
assumptions and methods have led to a compensability rate by 
the Department of Labor of 30 percent, which compares to an 
initial expectation in this program of about 10 percent, which 
relates to attributable risk of radiation in population-
generated cancer in our society.
    Claimant favorability is built into the act in many, many 
ways. When determining the probability that a claimant's work 
exposures to radiation caused their cancer, the act mandates 
that the inherent uncertainty in calculating such a probability 
will be higher than the actual value, or the true value, which 
none of us can really know, 99 times out of 100. We rely on a 
series of other claimant-favorable assumptions, when science 
provides no answer at all--when data is missing when we have 
incomplete information.
    The Special Exposure Cohort process also has many steps to 
ensure the decisions are as scientifically sound as they can 
be. They're reviewed by the Advisory Board, which analyzes the 
petition report that we give them, they obtain information from 
petitions also, they spend many hours assessing whether the 
information on exposure is adequate or inadequate to estimate 
the radiation dose with sufficient accuracy. The Board is 
involved in all aspects of the HHS program, and has met 50 
times since it was first chartered.
    HHS is dedicated to transparency in all aspects of the 
program, we welcome anyone's interest in expanding that 
transparency, and letting us know that we can do a better job.
    For instance, we recently went beyond the requirements of 
the Federal Advisory Committee Act by providing verbatim 
transcripts and detailed minutes of all Advisory Board 
meetings, including those of the working groups, and making 
them available to the public on our Web site, we're striving to 
post those minutes within 30 days of occurrence of the meeting.
    So, in conclusion, we've made a great deal of progress in 
carrying out our responsibilities under the act, but we 
continue to strive to serve claimants better, and we are very 
open to hearing any suggestions about how we can do a better 
    Thank you.
    [The prepared statement of Dr. Howard follows:]
                Prepared Statement of John Howard, M.D.
    Chairman Kennedy and members of the committee, my name is John 
Howard, and I am the director of the National Institute for 
Occupational Safety and Health (NIOSH), part of the Centers for Disease 
Control and Prevention (CDC) within the Department of Health and Human 
Services (HHS). I am pleased to appear before you today to update you 
on the progress HHS has made under the Energy Employees Occupational 
Illness Compensation Program Act of 2000 (``EEOICPA'' or ``the act'') 
(Pub. L. No. 106-398). I will describe several of our initiatives to 
provide better service, and I assure you that we are committed to 
continuing to improve the program to better serve former workers and 
their survivors and honor their service to our country.
    The role of HHS in the program focuses on the science of conducting 
dose reconstructions, including the related issue of considering and 
deciding upon petitions from classes of employees wishing to be added 
to the Special Exposure Cohort (SEC), and providing support for the 
Advisory Board on Radiation and Worker Health (Advisory Board). The 
Department of Labor (DOL) has the lead responsibility in the program 
for administering EEOICPA, including carrying out activities such as 
processing and paying claims.
                            progress to date
    I would like to start by describing the progress and 
accomplishments NIOSH has made in implementing EEOICPA, followed by 
highlighting NIOSH initiatives to provide the best possible service to 
    At a meeting of the Advisory Board 3 weeks ago, DOL reported that 
the program has paid more than $869 million to claimants, based on 
either a completed dose reconstruction, which DOL determined was 
compensable, or by membership in a non-statutory, HHS-designated SEC 
Dose Reconstructions
    As of October 16, 2007, DOL has referred 25,492 claims to NIOSH, 
and NIOSH has returned 17,280 of these claims to DOL with a completed 
dose reconstruction. Of the remaining claims, NIOSH has returned to DOL 
1,466 claims for a determination of SEC eligibility; DOL has 
``pulled,'' or taken back, 648 claims for various reasons; and there 
are 971 claims with completed dose reconstruction reports, which are 
currently being reviewed by claimants. This leaves approximately 20 
percent of the claims at NIOSH in an active status.
    Our efforts have been and are focused on completing the oldest 
claims in our system. As a result, of the first 5,000 claims that NIOSH 
received from DOL, we have completed or sent to DOL for adjudication 
98.7 percent of those claims (compared with about 80 percent for the 
program overall). Of the remaining 64 claims for which we have not 
completed a dose reconstruction, 20 claimants worked at a facility for 
which NIOSH recommended adding an SEC class. NIOSH considers completion 
of the oldest claims in the system to be a top priority so claimants 
can have their cases resolved.
Special Exposure Cohort
    Through NIOSH's efforts, 24 classes of workers, representing 19 
facilities, have been added to the SEC to date. NIOSH has initiated 
almost 40 percent (9) of the 24 classes that have been added, based on 
the authority under our rules (42 CFR Part 83) to initiate petitions 
when NIOSH determines that we lack data to estimate radiation doses 
with sufficient accuracy.
                  service to claimants and petitioners
    NIOSH constantly strives to improve the level of service we offer 
to claimants. I will tell you about the most recent steps we have 
taken. We have made available two staff members to help claimants and 
petitioners navigate this complex program. We continue to reach out to 
former workers to seek their input and incorporate it into our 
scientific and technical work products. We also have developed new 
communications materials to promote claimants' understanding of the 
Claimant Resources
    NIOSH has created two new staff positions to aid petitioners with 
the petitioner-initiated SEC process. These are the SEC Petition 
Counselor and the NIOSH Petitioner/Claimant Ombudsman, both of whom 
have toll-free telephone numbers and other contact information posted 
on the NIOSH Web site. The SEC Petition Counselor, Ms. Laurie Breyer, 
helps petitioners through the submission, development, qualification, 
evaluation, and Advisory Board deliberation processes of SEC petitions. 
Petitioners may also seek assistance from the NIOSH Petitioner/Claimant 
Ombudsman, Ms. Denise Brock, a former petitioner whose efforts led to 
the addition of a class of employees at Mallinckrodt Chemical Works in 
Missouri. In addition to responding to phone calls and e-mails, the SEC 
Petition Counselor and the Petitioner/Claimant Ombudsman have jointly 
held two SEC outreach meetings (one in Idaho Falls, Idaho, and one in 
Calabasas, California) and are in the process of arranging a third 
meeting in Augusta, Georgia, in November. The purpose of these meetings 
is to increase claimant and public understanding of the SEC process. 
Ms. Breyer and Ms. Brock have also attended, by invitation, meetings 
held by potential petitioners and/or union groups to explain the SEC 
process. These meetings took place in New Mexico, Washington, DC., New 
York, and Pennsylvania.
Worker Outreach
    NIOSH continues to proactively conduct worker outreach. In an 
effort to obtain input on program technical and procedural approaches, 
NIOSH has sponsored 77 worker outreach meetings, five town hall 
meetings, and four public meetings. NIOSH has held five dose 
reconstruction workshops to explain the dose reconstruction process to 
workers, union officials, and claimant advocates. NIOSH also has held 
six SEC worker outreach meetings to collect information specific to 
preparation of a NIOSH SEC evaluation report.
Improved Communications Products
    To enhance external communication, NIOSH has revised the 
acknowledgement packet sent to each claimant once NIOSH receives his or 
her claim from DOL. The new acknowledgment packet provides a more 
descriptive explanation of the dose reconstruction process and the 
steps that a claim will go through in that process. We have developed, 
distributed, and made available on our Web site the following new 

     probability of causation fact sheet,
     SEC fact sheet,
     residual contamination fact sheet,
     technical documents used in dose reconstruction fact 
     dose reconstruction fact sheet,
     overview of the dose reconstruction process,
     detailed steps in the dose reconstruction process,
     glossary of terms, and
     answers to frequently asked questions.

    We have also created a video explaining the dose reconstruction 
process; the video may be viewed on our Web site and is also available 
at Advisory Board meetings and by request in CD, DVD, and VHS formats. 
In preparing all of these materials, NIOSH sought input from the 
workers, the Advisory Board, and the NIOSH Petitioner/Claimant 
Ombudsman to make the information as clear as possible. NIOSH has also 
implemented and maintains an external mailing list so that interested 
individuals will receive automatic e-mail updates when new information 
is added to the NIOSH Web site.
    In addition to these outreach initiatives and the development of 
new communication information, NIOSH responds to numerous letters, 
telephone calls, and e-mails from claimants, the public, and Congress. 
NIOSH has received and responded to over 9,000 e-mails to our general 
program inbox, and NIOSH and our technical support contractors have 
received and responded to over 300,000 telephone calls since the 
inception of the program. NIOSH has responded to over 4,000 
congressional requests for information, provided over 100 congressional 
briefings, and hosted a congressional delegation visit to our 
Cincinnati office where NIOSH's EEOICPA work is performed.
                         addressing uncertainty
    NIOSH is committed to resolving uncertainties in all aspects of 
NIOSH's work in the program in a manner consistent with the act, the 
Executive Order, and the rules developed through public rulemaking. 
Based on the act's direction that the purpose of the program is to 
provide ``timely, uniform, and adequate compensation'' and the 
statement in Executive Order 13179, which allocates responsibilities 
among agencies under the act, that compensation should be 
``compassionate, fair, and timely,'' the HHS procedures for dose 
reconstruction (contained in 42 CFR Part 82) address the need for 
efficient processes to better serve claimants. The Preamble of the dose 
reconstruction procedures, which were promulgated through public 
rulemaking procedures and took into consideration comments from the 
public and the Board, ``give the benefit of the doubt to claimants in 
cases of scientific or factual uncertainty or unknowns.'' The SEC rule 
(42 CFR Part 83) reiterates that the act intends for the program to 
provide ``timely compensation'' and ``uniform, fair, scientific 
consideration.'' I will now briefly discuss several examples of methods 
that NIOSH has incorporated to give the benefit of the doubt to 
claimants to account for uncertainty in dose reconstructions, 
probability of causation (POC), and the SEC process.
Dose Reconstruction
    Dose reconstructions are grounded in the best available science and 
when there is uncertainty NIOSH may use the following claimant-
favorable assumptions, when appropriate, to complete the dose 

     use of factors that would yield the highest estimated dose 
when there are equally plausible scenarios; for example, assuming that 
a worker is directly next to the exposure source instead of a further 
distance away;
     application of missed internal and external dose to 
compensate for the limits of the monitoring programs at the time;
     assignment of neutron doses to workers with little 
evidence of neutron exposures to compensate for the technical 
limitations of monitoring of neutrons at the time;
     assumption of certain external doses as acute or chronic 
to maximize dose; for example, there are instances in which an 
assumption of an acute exposure of a certain dose may yield a higher 
estimated dose than an assumption of a chronic exposure, and vice 
     assumption of external dose even if it is not clear that 
there was an appreciable potential for exposure; and
     use of maximum ambient doses for workers in administrative 
areas; for example, even though workers in administrative areas may not 
have been exposed to doses in the work environment, NIOSH nevertheless 
includes the work environment exposure.

    Such assumptions and methods, following the dose reconstruction 
procedures established through public rulemaking, have led to a 
compensability rate by DOL of slightly more than 30 percent.
Probability of Causation
    The act mandates that all POCs must be established at the 99th 
percentile confidence interval. The use of the 99th percentile 
confidence level is the most significantly claimant-favorable aspect of 
the program. NIOSH built upon this foundation in establishing the POC 
guidelines (42 CFR Part 81) for DOL. DOL uses these POC guidelines, 
along with dose reconstruction information provided by NIOSH, to 
determine the POC for a given claim. Using the 99th percentile 
confidence interval, as opposed to the median or average POC value, 
means it is unlikely that an individual could have developed cancer 
covered by the program and not be compensated.
    In creating the guidelines, HHS provided DOL with procedures to 
follow when there is uncertainty. For example, when DOL is unable to 
identify the primary cancer, and only secondary cancers are identified, 
the NIOSH-authored POC guidelines require DOL to use as the primary 
cancer the cancer that will yield the highest POC in making the 
compensation decision. Another example is when multiple cancer risk 
models may apply, the POC guidelines require DOL to apply the model 
that will result in the highest POC.
Special Exposure Cohort
    The SEC process likewise has many provisions to assist petitioners. 
NIOSH offers assistance to petitioners in preparing submissions and 
throughout the SEC process. As previously indicated, two full-time 
staff are dedicated to assisting petitioners in the SEC process. 
Further, if information that is needed to evaluate a petition will not 
be available in a timely manner, the SEC rule allows NIOSH to determine 
that such information is not available for purposes of the evaluation, 
allowing the petition to move forward. SEC petitions also receive 
careful review by the Advisory Board, which analyzes the NIOSH petition 
evaluation report, obtains input from petitioners, and spends numerous 
hours assessing whether information is adequate to estimate radiation 
dose with sufficient accuracy. In the SEC rule, NIOSH provided 
petitioners with two opportunities for administrative review of non-
favorable decision. Finally, as mentioned earlier in the testimony, 
NIOSH may initiate an SEC petition if NIOSH determines that there is a 
lack of data to estimate radiation doses with sufficient accuracy, 
placing less burden on affected claimants.
            oversight of niosh's application of the science
    The Advisory Board, which advises HHS on the science underlying our 
implementation of EEOICPA, provides an important source of outside 
review that helps inform our work. The Advisory Board focuses on the 
scientific detail that is necessary to oversee such a program, and it 
makes use of rigorous peer review to accomplish its work. The Advisory 
Board is very involved in all aspects of HHS program activities. The 
full Board has met a total of 50 times, either in person or by 
teleconference. The subcommittees have met 20 times, and the Advisory 
Board's working groups (of which there are more than a dozen), which 
focus on technical scientific issues, have met a total of 48 times. HHS 
provides administrative services, funds, facilities, staff, and other 
necessary services to support the Advisory Board's work. CDC has 
obtained a technical support contractor, Sanford Cohen & Associates 
(SC&A), to assist the Advisory Board in reviewing NIOSH's dose 
reconstruction estimates, site profile documents, and SEC petition 
    Since NIOSH is dedicated to transparency in all aspects of the 
program, all Advisory Board meetings, including working group meetings, 
are publicly announced in the Federal Register and open to the public, 
except where closure is required. We go beyond the requirements of the 
Federal Advisory Committee Act (5 U.S.C. App. 2) by providing verbatim 
transcripts and detailed minutes of all Advisory Board meetings, 
including those of working groups, and making them available to the 
public on our Web site.
    In conclusion, NIOSH has made a great deal of progress in carrying 
out the responsibilities of HHS under EEOICPA. We will continue to 
strive to serve claimants better by communicating with them more 
effectively and processing their claims more quickly.
    Thank you again for the opportunity to testify today. I am happy to 
answer any questions you may have.

    Senator Bingaman. Thank you very much.
    Mr. Nelson, we're glad to have you here. Go right ahead.


    Mr. Nelson. Thank you, Mr. Chairman, and members of the 
committee. Before I begin, I'd like to acknowledge that 
Secretary Chao has extended the term of the Office of the 
Ombudsman until legislation is passed.
    I also want to personally thank Secretary Chao for 
extending to me, the privilege of continuing to serve as 
ombudsman. So, thank you, Secretary Chao.
    Since my appointment as ombudsman I have attended four town 
hall meetings, and my office has received hundreds of telephone 
calls, e-mails and letters from claimants and potential 
claimants. Based on these contacts, and in response to the 
question asking whether this program is claimant-friendly, I 
can say that a majority of the people with whom my office has 
spoken are of the opinion that this program is not living up to 
its promise of being claimant-friendly.
    Time will not allow me to address all of the complaints and 
grievances that my office receives, however, let me take a few 
minutes to summarize some of these issues.
    One of the biggest concerns involves the length of time 
that it takes to process a claim. Many claimants are of 
advanced age. Many suffer from debilitating illnesses. We 
continuously hear from claimants who tell us that if they are 
made to wait too long, they feel that they will not be around 
to enjoy their benefits.
    Further compounding this anxiety, is the realization that 
under Part E, if they pass away before benefits are paid, in 
most instances their adult children will not be eligible to 
receive their benefits.
    Trying to establish work at a covered facility and the 
extent of exposure to toxins are a source of many complaints. 
The Department does offer assistance in locating these records. 
However, where records have been lost or destroyed, many 
claimants believe that this assistance is not sufficient. Where 
such records cannot be located, a refrain we often here is, if 
the government can not find these records, how can anyone 
expect us to find them?
    On the other hand, where records are located, claimants 
often question their accuracy. Moreover, many claimants are 
confident that their employers manipulated or destroyed 
    The burden of establishing that one's illness was caused by 
exposure to toxins at work, is also a source of many 
complaints. Many claimants report that they are unable to find 
a doctor who will assist them. Where the claimant does retain a 
doctor, many nevertheless become frustrated when their evidence 
is deemed insufficient to satisfy their burden of proof.
    Claimants also tell us that it is extremely frustrating to 
establish causation, where their illness has been identified by 
Bulletin 6-10 as ``one with no known causal link to toxic 
substances.'' Claimants question the evidence relied upon in 
creating this bulletin, and they question the quality of 
evidence necessary to establish entitlement in such cases.
    We also hear complaints suggesting that the decisions 
denying benefits often do not adequately explain why claimants' 
evidence was not sufficient. Moreover, many claimants report 
that it is simply difficult to comprehend the letters and 
documents that they receive.
    In addition, many claimants tell us that it is impossible 
to find an attorney or representative to assist them, and many 
believe that this lack of representation has worked to their 
    Overall, my interactions with claimants and their families 
are usually very frank encounters where people are very blunt 
in expressing their frustrations with this program. I often 
have to remind people that my office cannot change the results 
of their decision. However, I always promise that I will record 
their complaints, and that when I have the opportunity, I will 
express those complaints to the Program office, and to 
    So, in concluding, let me reiterate that a majority of the 
people who contact my office strongly believe that this program 
is not living up to its promise of being claimant-friendly. 
Thank you very much for your attention, I will be more than 
happy to answer any questions the committee may have.
    [The prepared statement of Mr. Nelson follows:]
                Prepared Statement of Malcolm D. Nelson
    Good morning. I am Malcolm D. Nelson, the Ombudsman for the Energy 
Employees Occupational Illness Compensation Act, Part E, and I would 
like to thank the Committee on Health, Education, Labor, and Pensions 
for inviting me to testify today.
    The 2004 amendments to the Energy Employees Occupational Illness 
Compensation Program Act (EEOICPA) repealed Part D of the program which 
had been administered by the Department of Energy, and enacted Part E, 
effectively transferring responsibility for administration of 
contractor employee compensation from the Department of Energy to the 
Department of Labor. These amendments also created the Office of the 
Ombudsman and directed that it be an independent office located within 
the Department of Labor. The statute outlines three duties for the 
Office of the Ombudsman:

    1. To provide information on the benefits available under this part 
and on the requirements and procedures applicable to the provision of 
such benefits;
    2. To make recommendations to the Secretary regarding the location 
of resource centers for the acceptance and development of claims for 
benefits; and
    3. To submit to Congress by February 15th of each year, a report 
outlining the number and types of complaints, grievances, and requests 
for assistance received by the Office during the preceding year, and an 
assessment of the most common difficulties encountered by claimants and 
potential claimants.

    Since our establishment in 2004, outreach has been an important 
aspect of the Office of the Ombudsman, and our office strives to reach 
out to as many claimants and potential claimants as possible. As a 
result of our outreach efforts, as well as the efforts of others, we 
are contacted on a daily basis by claimants and potential claimants 
regarding their grievances, complaints and requests for assistance. Our 
most recent annual report was submitted to Congress on February 15, 
2007, and since that time, we have heard from hundreds of new 
claimants. We look forward to reporting on their concerns, grievances 
and requests for assistance in our report for 2007.
    The essential characteristics of any Ombudsman's office are: 
independence, impartiality, and confidentiality.
    Consistent with these characteristics, and with the statutory 
responsibilities outlined above, the Office of the Ombudsman provides 
assistance and guidance to those who request it. We do not possess 
investigatory authority and we cannot advocate on behalf of individual 
claimants as a private attorney might. Rather, we direct claimants to 
the appropriate resources, we answer their questions (to the extent 
that we are able), and in some instances, we simply record their 
concerns. Based upon a review of our records, and relying upon my 
personal interactions with claimants either at town hall meetings or in 
one-on-one conversations, I am confident in stating that a large 
percentage of the claimants and potential claimants with whom we have 
spoken do not believe that this program is, or has been, claimant 
friendly. There are many reasons for this and it would take too long to 
discuss every concern and grievance that we have received. However, let 
me take a few minutes to discuss a few of the more common complaints 
that this office hears.
    Before I begin, however, I should note that in light of the mission 
given to the Office of the Ombudsman, we generally only hear from those 
who have complaints, grievances, and/or requests for assistance. This 
in no way detracts from the validity of their concerns; rather I simply 
want to note that we tend to only hear of the problems.
    The fact that it often takes years to adjudicate a claim is a 
concern that many claimants express to us. We continue to hear from 
claimants who initially filed a Part B or Part D claim, meaning that 
they filed their claim prior to October 2004, and yet they are still 
awaiting a final resolution. In many other instances, while the claim 
may not have been pending since 2004, there still has been a lengthy 
wait. Even where there is an explanation for the delay, many claimants 
nevertheless assert that the wait is too long, especially since you are 
referring to a program that is intended to be claimant friendly. Many 
of the people with whom we speak are elderly, and quite a lot of them 
are sick, often suffering from malignant and debilitating illnesses. 
Claimants have been quite blunt in telling us that they fear that if 
they are made to wait too long, they will not be around to receive 
    In addition, generally under Part E, if the worker dies prior to 
the awarding of benefits, only surviving spouses or certain surviving 
children are eligible for benefits. In light of this, many claimants 
voice a concern that if benefits are not awarded during their lifetime, 
their family will not receive anything from this program--regardless of 
the severity of their illness. Moreover, there are claimants who simply 
need the money--sometimes to help pay for their health costs, and other 
times, for any number of reasons. I recently spoke to a woman who is 
anxious to receive her benefits so that she can pay for the 
installation of a new heater.
                            burden of proof
    Under Part E, the claimant has the burden to establish entitlement 
to benefits. In general, in order to establish entitlement to benefits 
under Part E, a living worker claimant must establish:

     employment at a covered DOE facility;
     an illness;
     that the illness is related to exposure to a toxic 
     that the exposure to the toxic substance is the result of 
employment at the covered DOE facility; and
     impairment and/or wage loss (if the claimant wishes to be 
compensated for impairment and/or wage loss) due to the illness.

    We hear a large number of complaints from claimants who believe 
that the burden on them is virtually impossible to meet. For instance, 
a number of claimants have indicated that in developing evidence of 
their employment at a covered facility or of their exposure to toxic 
substances, they were stymied because relevant records had been either 
lost or destroyed. Where such claims are ultimately denied on the 
ground that the claimant failed to present sufficient evidence of 
covered employment or of toxic exposure, the claimants often turn to us 
with the same questions, ``if the government cannot find these records, 
how can I be expected to find them?'' and ``why should I lose because 
this evidence has been lost or destroyed?'' Although, the Program 
Office, as well as this Office, will sometimes suggest other means of 
developing necessary evidence, following through on these suggestions 
is often beyond the capabilities of the claimant.
    Moreover, even where the records are available, many claimants 
question the accuracy of these records. A common complaint that we hear 
is that employment records fail to recognize that during the day the 
employee was routinely ``ordered'' to go to other sites around the 
facility. Transportation workers and security guards often tell us that 
they were not required to wear dosimetry badges, yet their duties often 
required them to travel throughout the facility and to have contact 
with a broad spectrum of the workforce. Furthermore, we encounter 
claimants who strongly believe that their employers manipulated or 
destroyed exposure data. The most common assertion that we hear is that 
employees were sometimes ``ordered'' to take off their dosimetry 
    We also hear complaints relating to the burden of establishing that 
one's illness was caused by exposure to toxic substances at work 
(causation). Many claimants tell us that they simply cannot find a 
doctor who will assist them. Moreover, even when claimants are able to 
retain a doctor, many become frustrated when their doctors' reports are 
ultimately deemed insufficient to satisfy their burden.
    EEOICPA Bulletin 06-10 is a source of many complaints. Bulletin 06-
10 informs claims examiners that DEEOIC ``has identified certain 
illnesses with no known causal link to toxic substances.'' Where a 
covered worker is determined to have one of these conditions, Bulletin 
06-10 instructs the claims examiner to send a letter to the claimant 
stating this finding and telling the claimant that ``it is necessary to 
submit factual or medical documentation to show a relationship between 
the claimed medical condition(s) and exposure to a toxic substance.'' 
In response to this bulletin, some claimants assure us that they are 
aware of (or have) medical/
scientific evidence drawing a link between their illness and a toxic 
substance, and thus question the evidentiary basis for the conclusions 
in Bulletin 06-10. (Bulletin 06-10 states that ``DEEOIC specialists 
researched authoritative scientific publications, medical literature, 
and occupational exposure records,'' but does not specifically identify 
the publications, literature or records consulted.) There are also 
claimants who believe that Bulletin 06-10 imposes an even higher burden 
on what is supposed to be a claimant friendly program. In addition, we 
encounter many claimants who assert that they have no appreciation of 
the quantum or quality of evidence necessary to overcome Bulletin 06-
                      lack of clarity/explanation
    Similarly, many claimants who contact our office contend that the 
decisions denying benefits do not adequately explain why their evidence 
was not sufficient to support an award of benefits. According to many 
claimants, an explanation as to why their previous evidence was 
insufficient, as well as clear guidance concerning the quantum and 
quality of evidence needed to meet one's burden, would assist them 
tremendously in their efforts to develop evidence.
    Many claimants also find it a challenge to understand the letters 
and other documents that they receive. These documents often discuss 
legal and medical matters which simply are beyond the grasp of some 
claimants. For instance, many claimants are potentially eligible under 
Part B, as well as Part E, yet it is not unusual to talk to a claimant 
who, in spite of receiving correspondence from DEEOIC, still cannot 
confidently state whether the application that they filed has become a 
Part B or Part E claim, or both.
         lack of legal representation/expert medical assistance
    The inability to obtain an attorney or other representative to 
assist them often exacerbates the problems that claimants encounter as 
they attempt to establish entitlement to benefits. Also, finding 
medical evidence to support one's claim often requires diligence and 
perseverance. We, however, encounter claimants who do not have the 
physical stamina to engage in this level of activity. In addition, 
assuming that evidence can be located, much of it will be extremely 
technical in nature. Many claimants simply are unable to fully 
comprehend such technical information. The fact that some claimants do 
not have access to a computer or are not computer-savvy adds to these 
    For example, I recently spoke to a woman who has been denied 
benefits on the ground that there is no evidence linking her husband's 
death to any of the toxins at his worksite. If this woman wishes to 
continue to pursue her claim, she will need to find a link between her 
husband's death and one of the toxins now identified on the Site 
Exposure Matrices--a tool developed by DEEOIC to catalogue, to date, 
which particular toxic substances were present at a Department of 
Energy facility during a particular claimant's employment. 
Consequently, this woman needs to review medical literature to try to 
find this link. Unfortunately, this woman is elderly, she does not live 
near a library, she does not drive, she does not have access to the 
internet, and she does not have anybody who is actively assisting her. 
At this point it is impossible to say whether this woman will prevail; 
however, it is safe to say that this woman will need assistance if she 
wishes to continue to pursue this matter.
    As I indicated at the beginning, I am not going to try to discuss 
all of the complaints and grievances that claimants have reported to 
our office. However, I do want to note that many claimants tell us that 
they believe that it is unfair that under Part B adult children can 
receive benefits if the eligible parent dies, yet under Part E, adult 
children generally are not eligible. It should be noted that some of 
these Part E adult children were not eligible to receive benefits under 
Part B because their parent did not have one of the illnesses covered 
by Part B. We also continue to hear complaints concerning the 
courteousness and professionalism of some of the staff involved with 
this program. Moreover, even when benefits are awarded, we hear from 
claimants who do not understand or disagree with the methodology used 
to determine if a coordination of benefits is needed for a previous 
non-EEOICPA award of benefits or compensation.
    Many of the claimants who attend our town hall meetings or who call 
our office come to us with a sense of frustration. It does not matter 
where the claimant lives, or whether the claimant is the worker or a 
survivor of a worker, we continue to hear many of the same complaints 
and grievances. Unfortunately, in response to many of these complaints 
and grievances, we often must remind claimants that this Office cannot 
change the result, we cannot award benefits and we cannot rewrite the 
statute. However, we then inform these claimants that the Office of the 
Ombudsman can and will take their concerns and express them to the 
program agency and to Congress. I realize that I cannot adequately 
describe the depths of their frustration, but in order for me to live 
up to the promise that I have made to these claimants and potential 
claimants, I want to conclude by again stating that a large percentage 
of the claimants and potential claimants who contact our Office very 
strongly and unequivocally believe that this program is not living up 
to its promise of being claimant friendly.
    Thank you very much for your time and attention.

    Senator Bingaman. Thank you very much, let me just, for the 
information of all Senators, indicate we've got four votes 
scheduled sometime after 11 o'clock, and we're not sure how 
quickly, and we also have a second panel of witnesses that we 
hope to get to.
    Let me ask a question, and then defer to Senator Alexander 
for any questions he has.
    Dr. Howard, let me just ask you, this dose reconstruction 
process seems to be a very long, drawn-out process, in many 
cases takes several years to accomplish. I gather that's not 
unusual. Is there anything we could do, that you could do or 
that the Congress could do to short-circuit that, and get that 
process completed more quickly?
    Dr. Howard. I think, Senator, from our perspective within 
the program, we are trying to shorten that process, 
considerably. If you look at the program, as a whole, since it 
began, and got the data for the median length of time it's 
taken us to do a dose reconstruction as the Department of Labor 
has indicated, it is probably around 2 years.
    But, when we started the Program, our dose reconstruction 
regulations were not done before we began to receive cases. If 
you look at just the last 2 years of our program, we've reduced 
that down to less than a year.
    It is almost impossible to reduce it to a level that a 
claimant may feel is their ideal--within weeks or months of 
filing a claim. That's often very difficult, because the 
process is complex.
    But when we have enough data, scientifically, enough 
monitoring data from the site--and when we don't, and we're 
applying claimant-favorable assumptions--it is a more complex 
process to be able to calculate, especially if there's multiple 
cancers, if there's multiple exposures to different 
    Dose reconstruction, in general, is not the easiest 
process, and it certainly isn't the easiest process to explain 
to claimants.
    Senator Bingaman. Senator Alexander.
    Senator Alexander. So that we can get to the next panel, 
I'll just ask one question, too. But, let me focus--as Senator 
Bingaman did--on NIOSH. As I understand it, it takes about 3 
years, did you say, Mr. Hallmark? Three years is waiting for 
NIOSH to process a claim, and then 1 year is for the Department 
of Labor?
    Mr. Hallmark. That's the rough average, since the beginning 
of the program.
    Senator Alexander. Since the beginning of the program?
    Mr. Hallmark. Since the beginning of the program. What we 
did a few years ago, out of respect for the Department of 
Labor's better record, we transferred all of these claims over 
    Senator Alexander. Now, we have in Tennessee 24,000 claims, 
18,500 of which have received a final decision, 5,500 are in 
process, waiting. Are there more than 5,500? Are there new 
claims coming in all of the time? Or, do you have all of the 
claims that you're likely to get yet?
    Mr. Hallmark. No sir, the claims continue to come in. We 
received somewhere in the neighborhood of 15,000 new claims for 
Part B and Part E, combined, in 2007 and we expect the same 
levels in 2008, and continuing. The program has no sunset, as 
long as people get sick, they can come forward and file claims, 
and obviously there is still a lot of people who can do that.
    Senator Alexander. So, Dr. Howard, based on your 
experience, and you've been able, you say, to reduce the time--
as follow up to Senator Bingaman's question, should we change 
some law? Should we ask you to do some different regulation? Is 
there a different way of evaluating some of these claimants 
that would save time, and still come to a fairly accurate 
result? Based upon your experience, can you think of ways that 
we can speed things up, from just the part of the review that 
you have?
    Dr. Howard. One of the ways that we're speeding things up, 
is by taking claims that we're unable to do individual dose 
reconstructions on, that may represent only one or two claims 
from a particular site. We are proposing to the Board that they 
approve them, those claims being added to the Special Exposure 
Cohort, so we're doing that on our own.
    The limitation, of course, is that we have to prepare a 
report to the Board, the Board meets only a certain number of 
times a year, they can only consider a certain number of those 
claims. So, we're constantly presenting to them, usually 2, 3, 
or 4 per meeting. So, we're trying to expand that number.
    For instance, in the first 5,000 claims that we received 
from the Department of Labor which are our oldest claims, we 
only have 64 claims left. So, those 64 claims that we have 
left, we are now preparing what's called an 8314 process in the 
regulation, which allows us to say, ``We cannot do dose 
reconstruction, we would like the Board to designate these 
particular claims as part of a class.'' We're trying to speed 
that process up.
    But, I think ultimately, unless you decide to re-do the act 
such that it is just a presence requirement of employment, and 
a radiogenic cancer--unless you do away with the dose 
reconstruction process altogether, it is very difficult--
although we are trying to reduce the envelope that dose 
reconstruction is within, in terms of time limits. But, other 
than taking it out of the process, it's very difficult.
    Senator Alexander. Thank you, Senator Bingaman.
    Senator Bingaman. Senator Murray.
    Senator Murray. I understand the time constraints, so I'll 
just ask a few questions. Dr. Howard, I wanted to ask you about 
a group of workers in Washington State who were recently added 
to this Special Exposure Cohort, making it easier for them to 
apply for benefits.
    I understand that a second class of workers petitioned to 
be part of the SEC, but NIOSH's recommendation to the Advisory 
Board earlier this month contained only a subset of that class. 
I understand the Advisory Board is reviewing the petition, 
independently, before making a determination on NIOSH's 
recommendation. Can you explain to me in layman's terms, why 
NIOSH did not endorse the petitioner's full request?
    Dr. Howard. Yes. The petition requested from 1942 to 1990. 
We were able to recommend to the Board that two classes be 
added, 1946 to 1959, and 1949 to 1968. We had data for 1968 to 
1990, monitoring data that allows us, under the scientific 
principles of dose reconstruction to actually reconstruct the 
dose. We did not have data available for the years prior to 
    So, what we did, then, is select out those years that we're 
able to do individual dose reconstructions, and say to the 
Board, ``We can do that on an individual level, but we cannot 
do it for these years.'' So, it's a matter of the availability 
of scientifically-sound data.
    Senator Murray. OK.
    Can you tell me what the average time is NIOSH expects to 
fully evaluate and complete an SEC?
    Dr. Howard. That's really an excellent question. In the 
legislation we are given 180 days to complete our activity, and 
often times, in the SEC process, data collection sometimes 
takes awhile. What we do is stop the clock while the petitioner 
is trying to obtain information, or we're working with the 
    But, in the 42 cases that we have, all but four of the 
petitions that have been qualified for SEC, we've met in the 
180 days. But, the four that we haven't met, for example, Rocky 
Flats and a couple of others, were highly complex SECs. We 
tried to meet it, we were unable to meet it.
    But in 90 percent of the time, we've met the congressional 
    Senator Murray. OK. You do track that information on how 
long it takes?
    Dr. Howard. Yes, Senator.
    And we can provide additional data for you on each of the 
sites, and how long it took.
    Senator Murray. OK.
    I do have additional questions that I hope to submit for 
the record.
    Senator Bingaman. Yes, we will have questions for the 
record for all witnesses.
    Senator Allard.
    Senator Allard. Thank you, Mr. Chairman.
    In 2005, the Rocky Flats Steel Workers of Colorado filed a 
Special Exposure Cohort, and under the requirements outlined by 
EEOICPA, it was amended in 2004 to include the SEC petition 
procedure. The workers, after 2\1/2\ years, got a decision 
back, that was just June 12, 2007. That seems to me like 
anything but a speedy process.
    I have looked back on the Department, and the Department 
has performance evaluations conducted on it from time to time. 
Part of that evaluation, they said the Program's statutory laws 
that we passed reduces its effectiveness. They say, and I 
quote, ``The program's design requires the involvement of 
multiple agencies and certain claims, decisions, and resulting 
in delays.'' Is there something we could do, legislatively, to 
deal with that issue that was raised, when they looked at their 
    And also, how are Federal managers and program partners 
held accountable for cost schedule and claims processing?
    Dr. Howard. On the latter question, which is an easy one, 
through performance appraisals, directly. We do that in every 
program. Also, we do program reviews to look at the program in 
    But if you're going to the first----
    Senator Allard. Have you had some that haven't measured up 
on their performance?
    Dr. Howard. Yes, sir.
    Senator Allard. What happens as a result of that?
    Dr. Howard. Well, there's a progressive process of 
identifying the issues, counseling the individual, looking for 
performance improvements.
    Senator Allard. And if they still don't perform, what 
    Dr. Howard. Well, then we make changes to the program----
    Senator Allard. What happens? Do they get transferred, or 
they get laid off ? If they don't do their work, do they get 
    Dr. Howard. Well, I'd have to look back at the specifics, 
Senator. I don't have the specifics right now.
    Senator Allard. I'd appreciate knowing the detail. If we 
have nonperformers in the programs affecting people's lives, 
and their families lives. I think there's a serious problem.
    Dr. Howard. I agree with you.
    Senator Allard. The people responsible for that need to be 
held accountable. So, go ahead and finish your response to my 
    Dr. Howard. I just wanted to add that, not only with our 
own HHS employees, but also with our contractor employees.
    Senator Allard. Yes.
    Dr. Howard. In terms of the larger issue, which I think 
relates to the timeframe and the multiple levels of review, 
some of the Special Exposure Cohorts do require additional 
information, oftentimes from DOE and we also have a very 
detailed peer review process that we undergo with the Advisory 
Board on Radiation Worker Health, as well as their contractor 
looks in excruciating detail at many issues, especially when 
our petition evaluation says, we want to deny the petition.
    I think that it is important for that peer review to take 
place, for everyone to look very carefully at our assumptions 
that we've made, to make sure that they're sound.
    So even though there may be a significant amount of time 
there, I don't think it's important that peer review take 
    Senator Allard. Now, did you address the legislative 
    Dr. Howard. In terms of?
    Senator Allard. The performance.
    Dr. Howard. Oh, yes.
    Senator Allard. They suggest that there's multiple agencies 
and certain claims disclosure, and that's resulted in 
inefficiencies. Is there something we can do legislatively?
    Dr. Howard. Well, I'm not a legislator, but I would 
    Senator Allard. Yes, but you're responsible for 
administering the program.
    Dr. Howard. Yes.
    Senator Allard. Do you have some recommendations you might 
submit to the committee?
    Dr. Howard. Exactly. I would say that, one of the issues 
for us, of course, looking at discretionary deadlines, versus 
mandatory deadlines, that sends different signals to a program. 
So, I would suggest that mandatory deadlines are a different 
thing than discretionary deadlines.
    Senator Allard. Thank you for your comments.
    Senator Bingaman. Senator Murkowski.
    Senator Murkowski. Chairman, thank you, and I do have a 
statement that I would like you to put into the record.
    Mr. Hallmark, with many of the workers that were out on 
Amchitka when the nuclear weapons test was done out there, we 
had a situation where the individuals were not necessarily paid 
by the Department of Energy, they were employees of 
subcontractors, they were then paid by the Department of 
Defense. Do we have any idea how many employees might be out 
there, in this situation--any estimates in terms of the cost of 
extending the EEOICPA program to cover, not only the active 
duty military, but the DOE defense subcontractor employees? 
And, I know this may be more of an OMB-type of a question, but 
it is a situation for us in Alaska where we're looking at them, 
and they just don't fit into the neat categories.
    Mr. Hallmark. The question of coverage of contractors 
working on DOD contracts, as opposed to DOE contracts was one 
that was debated and discussed at length when the statute was 
enacted back in 2000.
    It's my understanding that a decision was made to draw a 
bright line, and not cover DOD contractor-employees. The result 
of that is that there are these circumstances where there are 
people who are working closely together at a number of these 
sites around the entire complex, who are working on various DOD 
activities. The statute even excludes, specifically, people 
working for the Naval Nuclear Propulsion Activity, and then the 
radiation associated with that.
    I can't tell you why that decision was made by Congress in 
2000. Clearly, if there is a desire to look into expanding the 
statute, that's something that would need legislation.
    As to how many people are in that category, the question 
has not been put to me, and I don't have a basis right now, and 
I don't know whether I could find the basis, but I certainly 
don't have any information currently available about the number 
of DOD contract employees who might, under a different 
structure of the legislation, be covered.
    Senator Murkowski. We may want to follow up with that. It's 
one of those where, as you say, you can have two individuals 
exposed to the exact same situation, and depending on where 
they got their paycheck from, one gets covered, and the other 
one doesn't. It doesn't seem fair.
    Let me ask you, Mr. Nelson, very quickly--you've indicated 
that those that are coming to you do not believe that this 
process is claimant-friendly, as you have been working in your 
capacity as Ombudsman, have you seen an increase in the level 
of frustration, is it getting any better, are we doing anything 
right that we can take some credit here for?
    Mr. Nelson. I think, yes, there are some things that are 
being done right. The problem for many of the claims is that, 
it takes so long that, with some of the claimants, even if they 
are ultimately awarded benefits, or finally, get their final 
decision, they are so frustrated because it has taken so long, 
that they can't get over that frustration.
    The other problem I find, is that while we are doing a lot 
of things, sometimes the things we think are helping the 
claimants, aren't really helping them. It's not translating----
    Senator Murkowski. Such as?
    Mr. Nelson. One process that I've seen--because many of 
these claims take a long time, there's often a process where 
claims are moved around to different claims examiners. This is 
an attempt to help the claimants to make sure the claims are 
moving faster.
    Unfortunately, for many of the claimants, they see the fact 
that they have 3 or 4 claims examiners handling their claims as 
a problem. They think that they've developed a relationship 
with one claims examiner, only to have that claims examiner 
move off, now they have a new claims examiner, they have to 
establish a new relationship with that one.
    As I said before, it's done to help the claimants, 
unfortunately in the minds of the claimants, they see it as 
another delay.
    Senator Murkowski. Thank you, Mr. Chairman.
    Let me just follow up on that--is it actually delaying the 
process? Or is it just viewed as a delay? Because there's a 
difference there.
    Mr. Nelson. Yes. Again, I hear it from the claimants, their 
view is that it's actually delaying, I mean, they'll tell me 
stories where they said, ``We thought our claim was at one 
process, was at one level in the process, however, we get a new 
claims examiner, all of a sudden, we're back to square one. Or, 
we've had claimants, they've asked us all of these questions, 
now we have a second claims examiner, they're asking us all of 
the same questions over again.
    Whether that's actually causing the delay, or whether it 
simply has the perception of a delay, I can say clearly, for 
the claimants, it has the perception of delay.
    Senator Murkowski. Sure. Thank you, Mr. Chairman.
    [The prepared statement of Senator Murkowski follows:]

                Prepared Statement of Senator Murkowski

    Mr. Chairman, a sincere thank you for holding this hearing 
into the workings of the Energy Employees Occupational Illness 
Compensation Program Act--EEOICPA for short.
    Coming from Alaska where more than 2,000 workers toiled for 
the Department of Energy to prepare for three large nuclear 
weapons tests on Amchitka Island in the late 1960s and early 
1970s, I know first hand just how important this legislation is 
to provide help to workers who volunteered to help America's 
nuclear program at the height of the cold war. It is important 
because, unfortunately, in all too many cases these workers 
have been suffering horrible health consequences as a result of 
occupational exposures either to radiation or other 
contaminants that they faced.
    Developing a compensation program was difficult three and 
four decades after the fact when Congress first passed it in 
2000. The complexities spawned changes in 2004 when Congress 
repealed Part D because of the difficulties of implementing it 
and substituted Part E to speed compensation for lost wage 
claims because of disabilities caused by nuclear ailments and 
illness. The delays in implementation caused Congress to 
replace the Department of Energy with the Department of Labor 
to process claims.
    It also caused Congress to create an Ombudsman to help the 
tens of thousands of employees thread their way through the 
complex claim application and review process.
    While the Department of Labor certainly is doing a far 
better job of processing old claims and new ones stemming from 
Part E, the calls and letters my offices are receiving indicate 
that there are still problems with the nuclear worker program--
problems that Congress may need to again address.
    Clearly, we need to extend the authorization for the 
Ombudsman's office, since there is clear evidence that 
employees likely will continue to need assistance to apply for 
and get through the adjudication process for their compensation 
claims. While the Senate has already voted to extend the office 
as part of the Defense Authorization Act, until that bill is 
actually conferenced and signed into law, I join many on this 
committee in hoping that the Department of Labor will 
administratively keep the Office open until a formal 
reauthorization passes and becomes law.
    The bigger question is whether there are still fundamental 
problems with the structure of the compensation program that 
Congress needs to fix. That is what I hope this hearing will 
shed light on.
    My office has certainly received a host of complaints in 
the past several years about the compensation process. The 
complaints have generally fallen into a half dozen areas. They 

    1. Complaints about delays in adjudicating claims, that the 
wait is too long. In some cases workers are quite ill and 
afraid that they will die before their claims are approved, 
complicating the receipt of assistance to their families.
    2. Complaints about what workers have to prove--the burden 
of proof--to be entitled to benefits. The problems stem from 
workers having trouble finding firm evidence that they actually 
worked on projects, especially those who worked for DOE 
subcontractors. The employment records and the length of 
employment documentation are a challenge after nearly half a 
century. Worse, employment records are frequently so sketchy 
that they complicate, not help, workers to show their radiation 
or contaminate exposures.
    3. This flows into the problem of ``dose reconstruction.'' 
While I know we will have testimony today about how much better 
the National Institute for Occupational Safety and Health 
Centers are doing in developing radiation dose information--
vital for the adjudication of disability claims--still I'm 
getting a host of complaints about lengthy delays in processing 
the requests and sometimes in the physician panels that are 
involved in determining disability compensation. A related 
problem is that workers are developing cancers that are not 
solely radiation dependent, but ones like prostate cancer, 
where radiation exposure could have played a large contributing 
role. I'm also getting complaints that the requirements for the 
amount of time at a job site--the exposure information--may be 
    4. I'm getting complaints about the inadequacy of 
explanations about why claims are denied. Many say after long 
waits they are being denied aid because their evidence was 
insufficient, but that they are not getting enough guidance on 
how to remedy the filing shortfalls. The frustration for 
workers denied aid is growing.
    5. I'm getting complaints from relatives about the 
compensation process. For example under Part B adult children 
can receive benefits if the eligible parent dies, but under 
Part E, adult children generally are not eligible for 
compensation. One woman who called my office said the program 
was actually tearing her family apart, since of 10 children, 
only 1 was a minor and qualified to gain all of the aid, the 
other nine children feeling unfairly treated. This is clearly 
an issue for Congress, not the Department of Labor to settle.
    6. And finally I'm getting complaints from my State from 
workers on the Amchitka weapons tests who were employees of 
subcontractors who effectively were paid by the Department of 
Defense, not the Department of Energy. While active duty 
military gained regular military benefits, DOE subcontractor 
employees who often did the same work as DOE-funded 
subcontractors, currently are not entitled to any benefits.

    Another issue may be whether compensation is owed to non-
contract employees who visited radiation sites. For example 
Alaska's then Secretary of State, now what is called our Lt. 
Governor, at the request of the military toured the mine staffs 
at Amchitka between tests. He developed and died of a 
radiation-cancer but his widow is not entitled to compensation 
because he was not an actual employee.
    There clearly is an issue of fairness here that we dodged 
in both 2000 and at the time of the improvements in the act in 
    Many of these complaints and many others, are expressed in 
the testimony by the Ombudsman and by others that we will hear 
about today. I hope this committee can fashion just and 
reasonable solutions to speed fair compensation to those who 
stepped up to the plate to help America in its time of need.
    These workers and their families now need our help. I hope 
we can make this program fulfill its promise and truly help our 
Nation's nuclear workers. Thank you Mr. Chairman.

    Senator Bingaman. Thank you all, very much. I think this 
was useful testimony.
    Senator Murray. Dr. Howard are you getting all of the 
information from DOE that you are requesting, in a timely 
    Dr. Howard. It's much improved. We are--DOE is working very 
hard on a number of our cases, Chapman Bell being one of them 
that they are trying to expeditiously get us information. If I 
could compare 2002-2003 to 2006-2007, there's a remarkable 
    Mr. Hallmark. I would second that. Our relationship with 
them has been outstanding in recent years, and they're very, 
very prompt.
    Senator Murray. OK, thank you.
    Senator Bingaman. Again, thank you all very much for your 
testimony, why don't we go ahead right to the second panel.
    This panel consists of Dr. James Melius, who is a member of 
the Advisory Board on Radiation and Worker Health at the 
National Institute for Occupational Safety and Health in 
Albany, and also Dr. Ken Silver, who's Assistant Professor of 
Environmental Health Sciences at East Tennessee State 
University in Johnson City, TN.
    Thank you all for being here. If each of you could take a 
few minutes to summarize your testimony, that would be great, 
and then we'll have questions, assuming we still have time to 
do that.
    So, Dr. Melius, why don't you go right ahead? Is that the 
correct pronunciation, Melius?
    Dr. Melius. Yes, it is.
    Senator Bingaman. Please push the button there so that we 
can all hear you, thank you.


    Dr. Melius. Senator Bingaman, Senator Alexander, other 
members of the panel, I greatly appreciate the opportunity to 
testify before you today about the EEOICP.
    I'm an occupational physician epidemiologist, worked in the 
past at NIOSH, and had considerable experience working at 
evaluating health problems at DOE facilities in the past. And 
it's been going for the last several years, I've served as a 
member of the Advisory Board for the Program, attended over 50 
meetings to discuss various aspects of that program, and had 
the opportunity to hear from hundreds of claimants who've 
attended the public sessions of our Advisory Board.
    You've already heard today from the Department of Labor and 
NIOSH about their efforts to make the program more claimant-
friendly, and I believe that both agencies have made 
considerable efforts to do so.
    However, it's quite evident from hearing from the claimants 
at our public meetings of the Advisory Board, that there's 
widespread dissatisfaction with the program. And, I think that 
in evaluating the reasons for this, I think it's important that 
we understand that claimants friendliness is more than 
technical adjustments in the dose calculations. It should be to 
provide timely, fair and accurate compensation decisions and 
provide such decisions in a consistent and transparent manner.
    While the claimants may not always be satisfied with the 
final results of the determination--their claim is turned 
down--they should believe that they've been treated in a fair 
manner, their claims were thoroughly and adequately researched, 
and that they have the opportunity to submit information they 
believe is relevant to their claim. This information was 
reviewed, and more appropriate, was taken in to account in 
their dose calculations and claim decisions. I think that's 
particularly important in this program--I think what you've all 
said here today--this program goes back many years, there's a 
great deal of secrecy, and a great deal of sacrifice on the 
part of the people working at these facilities to serve their 
country and they did so in a very remarkable way. Now they 
deserve a good, transparent, and sound compensation program.
    Now, in my testimony, I've laid out a number of the reasons 
why I believe that the claimants, many of the claimants do not 
feel they're being treated in a claimant-favorable way. Some of 
it is technical, just the nature of missing records, the fact 
that these dose calculations, claim decisions are very 
technical, require complex calculations that may be difficult 
to understand.
    However, there are also a number of administrative issues, 
I think, that greatly contribute to the claimants 
dissatisfaction with the program. First of all, and I think 
most importantly, claimants do not believe that their input to 
the program really is taken into account, that it matters.
    And the nature of the interview process with NIOSH, in 
particular, with the Subtitle B part of the program, the cancer 
claims, it is the same interview for everybody, no matter where 
you worked. If you worked at Amchitka, if you worked at Los 
Alamos, you get the same questions.
    So even though those two facilities are extremely very 
different in terms of activities and the kind of work that's 
done there. And in my testimony, I've laid out some of the 
other problems with that.
    But it's important that the lack of taking into account the 
claimants' experiences and their input into the claim 
decisions--it's not just a matter of how clean and friendly 
does the program appear. I think it's also a serious technical 
    As Senator Reid has spoken today, and we hear this 
repeatedly from people from many different sites, there are a 
great number of situations where people have problems with 
high, very high exposures, incidents which are not recorded, 
and often there isn't any record kept of that particular 
incident and that exposure. And therefore, if it's not picked 
up in an interview, they don't have a chance to provide that. 
It ends up with an inaccurate claim, dose reconstruction.
    There are some other issues that I've laid out with the 
program. And then, I also believe that, I made three areas of 
recommendations, which I think would greatly improve the 
program without necessarily requiring that there be a change in 
the law.
    The first recommendation would be to improve the interview 
process. I think that needs to be tailored to the particular 
site and I think it needs to be set forth in a way that the 
claimants can feel that their input is appropriately followed 
up on.
    Recently we had a report, a graph report from the Board's 
contractor reviewing part of what's called the close-out 
interview. And that report found some pretty serious incidents 
where information put forth by the claimants was not being 
followed up on. And the claimants weren't aware of that, they 
    I also believe that the process for reviewing SEC petitions 
needs to be improved. And we need to make sure that people, the 
worker representatives and the petitioners, have an adequate 
time to participate in that process and can be fully made aware 
of what's going on. I think NIOSH has taken some steps recently 
to improve that, but I think more needs to be done.
    And finally, we need to improve the timeliness of the 
program. Now that is, I think, a difficult ``to do'' within the 
constraints of the law and the way the program is set up. But, 
I think it's critical. We shouldn't have 64 claims, whatever's 
left over from 5 years ago, that have not been processed. 
That's not fair to anybody involved. And, now they're taking 
steps, I think that's--glad to hear that, but at the same time, 
we need to take other steps, particularly, I think, a much more 
active program to look at where those reconstructions are not 
going to be feasible to do.
    Under the current program, the way the law's written and 
the regulations, has the determination that those 
reconstructions can not be done with sufficient accuracy. And, 
that process ends up with this very long, drawn-out evaluation 
that Dr. Howard has described, the Board reviewing it, and so 
forth. And it just doesn't work.
    I think it ends up taking 2 or 3 years to go through that 
process for the petitioners. This is the process that should 
allow you to speed up the program and take into account that 
records are missing, that we can't do it, can't do the dose 
reconstructions in a scientifically sound way. And we need to 
make that process work better. And I think there's some changes 
in the regulations and some changes in the administration of 
the program that could be done in a way that would greatly 
speed up that process. And I think also, lower the burden on 
NIOSH for the many thousands of those reconstructions that they 
would have to do if they do not take adequate advantage of that 
Special Exposure Cohort process.
    So, let me end there. I'd be glad to answer questions at 
the appropriate time.
    [The prepared statement of Dr. Melius follows:]
             Prepared Statement of James Melius, M.D., DrPH
    Honorable Chairman Kennedy, Ranking Member Enzi, and other members 
of the Health, Education, Labor, and Pensions Committee, thank you for 
the opportunity to testify here today regarding the Energy Employees 
Occupational Illness Compensation Program Act (EEOICPA).
    I am an occupational health physician and epidemiologist currently 
working for a labor-management health and safety organization 
affiliated with the Laborers' International Union of North America and 
its contractors in New York State. Over my past 25 years of work in 
occupational and environmental health, I have considerable experience 
evaluating occupational illness issues at Department of Energy nuclear 
weapons facilities while working for the National Institute for 
Occupational Safety and Health and later as a member of various review 
and advisory committees including the Advisory Board on Radiation and 
Worker Health established under EEOICPA. As a member of that Board, I 
have attended over 50 meetings to discuss various aspects of that 
program and have had the opportunity to hear from hundreds of claimants 
and their families about their experiences with the program. I should 
note that I do not testify here today on behalf of the Advisory Board 
on Radiation and Worker Health.
     energy employees occupational illness compensation program act
    EEOICPA was established to address the work-related cancers and 
other illnesses suffered by the thousands of men and women who helped 
build and maintain our Nation's nuclear weapons starting during World 
War II and continuing into the present time. Especially during the 
early years of the program, these people worked under very difficult 
conditions. They worked under tight deadlines using new manufacturing 
processes that involved handling very dangerous materials, often with 
minimal protection from exposure to dangerous radioactive elements. 
They also worked under great secrecy, facing severe criminal penalties 
for any breach of secrecy. Often they were given very minimal 
information about the materials that they worked with and the potential 
health consequences of their exposures.
    I want to emphasize that these people worked under these conditions 
willingly, knowing the critical importance of their work to our 
Nation's security. However, many of these people and their families are 
now angry that this past secrecy and those difficult working conditions 
have not been acknowledged and have been used to deny their past claims 
for work-related illnesses. The credibility of the EEOICPA program to 
these people is very dependent on the fairness, timeliness, and 
transparency of the program's procedures.
    As a consequence of this work, these workers are at increased risk 
of developing cancer and other occupational illnesses. Because 
information on the exposures and the consequent health risks were 
hidden from these workers for so many years, Congress established the 
Energy Employees Occupational Illness Compensation Program in 2000 to 
provide some compensation to these workers and their survivors for 
their work-related health problems. In doing so, Congress recognized 
that attempting to provide fair and equitable compensation for people 
working at these facilities for the past 50 years or more was difficult 
and, in many cases, would not fully compensate these people or their 
families for their suffering and sacrifice for our country.
                   is the program claimant friendly?
    You have already heard today from the Department of Labor and from 
NIOSH about their efforts to make the program more claimant friendly. I 
believe that both agencies have made considerable efforts to do so. 
However, it is quite evident when hearing from the claimants or their 
representatives at the public meetings of the Advisory Board or in 
other settings that there is widespread dissatisfaction with the 
program. Most of my experience with the program has been regarding the 
Subtitle B Claims (i.e., dose reconstructions and special exposure 
cohort petitions) rather than the Subtitle E program that is 
administered solely by the Department of Labor. Therefore, most of my 
remarks will be about the Subtitle B program. However, I believe that 
many of the same issues are also relevant to the Subtitle E program.
    Before discussing the reasons for this dissatisfaction, I would 
like to discuss how I evaluate the degree to which this program is 
claimant favorable. I believe that it is more than just performing dose 
calculations in a manner that provides an appropriate adjustment for 
the level of uncertainty in the available monitoring records, 
monitoring methods, etc. A claimant favorable program should provide 
timely, fair, and accurate compensation decisions and provide such 
decisions in a consistent and transparent manner. While the claimants 
may not always be satisfied with the decision in their case, they 
should believe that they were treated in a fair manner, that their 
claims were thoroughly and adequately researched, that they had the 
opportunity to submit information that they believe is relevant to 
their claim, and that this information is reviewed and, where 
appropriate, used in their dose calculation. I believe that these 
criteria also apply to other parts of the EEOICP including the Special 
Exposure Cohort petition process. A transparent, credible process is 
especially important in the EEOCIP because the compensation process is 
so complex, and the ability of the claimants to appeal these decisions 
is limited by this complexity and their limited resources.
    Why are so many claimants dissatisfied with the EEOICPA program? I 
would like to briefly discuss several reasons.
    First, the dose reconstruction and SEC evaluation processes are 
very complex and difficult for a person not trained in health physics 
or dose reconstruction to understand. When individual exposure records 
are available, the calculations of dose are often technically 
complicated and may require multiple calculations of many different 
types of exposure over the person's career at the facility. In many 
cases the exposure records need to be adjusted to take into account 
deficiencies in the monitoring program at that facility. In other 
instances, individual exposure records are not available, and 
complicated methods are used to estimate exposures based on data from 
co-workers, information about the radioactive materials and processes 
at that facility, or utilizing data from other facilities. Many of 
these procedures are complicated and difficult for someone not trained 
to do these procedures to understand. Many of these procedures require 
considerable judgment on the part of the person doing the dose 
reconstruction about how to apply these procedures to an individual 
case. Many claimants question the fairness of these methods and 
extrapolations and whether the methods and assumptions are appropriate 
for their individual case.
    Second, many of these claims relate to exposures during the early 
days of nuclear weapons development. Exposure monitoring methods were 
not available or under development. In some cases, little or no 
monitoring was done. Some of the information needed to evaluate these 
early monitoring data is not available, and many of the people involved 
with the early monitoring programs have died. Many of the claimants 
from these early years are dead, and their survivors often know very 
little about their work or work exposures (due to the secrecy of the 
program). The methods used for these older cases often involve more 
assumptions about exposure conditions, and more use of data from other 
sites. These factors make it very difficult for the claimants or their 
survivors to understand and trust the dose reconstruction process that 
is being used to process these claims from the early years of the 
nuclear weapons program.
    There are also a number of administrative issues that contribute to 
the claimants' concerns about the program.
    First, the dose reconstruction process was designed to be largely 
based on the exposure records and related site documents. In the vast 
majority of cases, information from the claimant plays little or no 
role in the dose reconstruction process. Each claimant or their 
survivor is interviewed. However, the initial interview is the same for 
all claimants and follows a script approved by OMB before the dose 
reconstruction process was fully developed. Many of the interview 
questions are confusing, involve technical terminology that the 
claimant or their survivor may not understand, and ask about 
information or exposures that is not relevant to the site where the 
claimant worked. This is very confusing to the claimant or their 
survivor. Often they believe that their answers to these irrelevant 
questions may be important to processing their claim when they are not. 
Conversely, those being interviewed may be led to believe that 
important information about their exposures is actually not important 
because they were not asked about it in the interview.
    Although claimants or their survivors have the opportunity to 
provide additional information at the end of the interview and during 
the dose reconstruction close out process, it appears that information 
provided by the claimants is often ignored or not fully utilized. A 
recent draft report from the audit contractor working for the Advisory 
Board on Radiation and Worker Health documented this lack of follow 
through on information provided by the claimants. Many people speaking 
at the public comment sessions at the Board meetings have reported 
similar complaints. As the interviews are the main opportunity for the 
claimants to interact with people who are handling their claim and one 
of the few opportunities that they have to provide such information, it 
is important that their input be appropriately ascertained and 
    In addition to being a source of dissatisfaction with the program, 
this lack of adequate consideration of information from the interviews 
with the claimants is also a serious technical shortcoming in the dose 
reconstruction process. The people doing the work at the specific 
facilities are often best able to report on actual working conditions 
and circumstances that may have impacted their exposures (e.g., high 
exposure incidents, times when they were not monitored, etc.) Often 
these individual situations were not fully documented (or the records 
are lost), and often they may account for a very high exposure for the 
claimants. We have repeatedly obtained credible information from 
claimants and worker representatives that often contradicts the 
information available from the official exposure records. We have 
repeatedly been told about credible instances where workers have been 
told to not utilize their monitoring badges for a particular operation 
because the exposures would be too high. The lack of adequate methods 
for obtaining and utilizing such information from the claimants is a 
serious flaw in the program and also a major source of frustration to 
the claimants. This problem also extends to the handling of the SEC 
petitions and the development and review of the site profiles and other 
technical documents.
    Another problematic aspect of the program is that the dose 
reconstruction methods are continually changing. In order to address 
the large number of claims when the program first started, NIOSH and 
their contractors rapidly developed so-called Site Profiles and related 
technical documents to provide a summary of the technical information 
about a particular site that was judged to be important for dose 
reconstruction for people who worked at that site. NIOSH recognized 
that these profiles were not complete and would need modification once 
NIOSH had more time to do so. NIOSH has worked to continually update 
and modify these documents and to add new technical procedures to 
assist in dose reconstruction.
    NIOSH and DOL have also established a policy that when these 
documents are modified, any dose reconstruction that could be changed 
by the modified information would be reviewed. Those claims that would 
become compensable because of the change (i.e., their probability of 
causation increases) would then be compensated. Although this is 
helpful to many claimants, it is confusing for those whose claims are 
being reexamined through this process but whose modified dose 
reconstruction does not reach a level where it is compensated. All 
claimants whose dose reconstructions are being reevaluated are notified 
of the process, although many will become more frustrated and 
dissatisfied when their claims are again denied. However, this 
continual updating and changes in technical documents means (in effect) 
that a given claim is never closed and that claims may be reopened and 
found to be compensable many years after first being turned down. It 
also raises the issue why adequate dose reconstruction documents were 
not developed in the first place.
    A related issue concerns the timeliness of the SEC petition 
evaluation process. Once NIOSH approves an SEC petition, NIOSH staff 
usually complete their evaluation of the SEC petition within the 
required 180 days. However, the evaluation of these petitions often 
takes a much longer time period. For example, a petition regarding the 
Rocky Flats plant qualified in June 2005; NIOSH's evaluation report was 
received in April 2006; and the Board's final recommendation was made 
in July 2007. A petition for the Fernald facility in Ohio qualified in 
April 2006; an evaluation report was published in October 2006; and 
that evaluation report is still being reviewed by the Board. Similarly, 
a petition for the Blockson facility in Illinois qualified in March 
2006; a second NIOSH evaluation report was produced in July 2007; and 
that evaluation report is still being reviewed by the Advisory Board. 
There are many reasons for the delays including the complexity of these 
sites and the long time periods involved in these petitions. However, 
often the review of NIOSH's technical reports by the Advisory Board or 
its contractor finds significant deficiencies that need to be 
addressed. These lead NIOSH to revise the technical documents used for 
that site which can involve considerable time to search for additional 
documentation and to make such revisions. This is frustrating for the 
petitioners and very confusing as the methods being used for dose 
reconstruction at that site are continually changing. Individual dose 
reconstructions are being delayed while this review is under way. The 
long review benefits the claimants by helping to improve the dose 
reconstruction process, but the long time period and the technical 
complexity of the review and deliberations are quite frustrating for 
the petitioners and claimants.
    Recently, the SEC evaluation process has also been delayed by 
questions about which parts of the facility and/or what time periods 
are covered by the program. This problem has involved at least three 
sites (Blockson Chemical, Dow Madison, and Chapman Valve). The 
determination of what facilities (or parts of a facility) are covered 
and about the time period of coverage involves evaluations and 
determinations by the Department of Labor and Department of Energy. The 
process for coordinating between the three agencies involved in this 
process has not been well worked out and is also frustrating for those 
involved in those facilities.
    I have tried to enumerate some of the problems with the current 
EEOICPA program. I also would like to make some recommendations to 
address these problems and improve the program. I believe that all of 
these recommendations can be accomplished within the current framework 
of the program and without legislative changes:

    1. Improve the Interview Process. The current interview should be 
revised to be easier for the claimants or their survivors to understand 
and should incorporate questions directed at specific facilities (or 
types of facilities), types of work, and exposures. This would be 
helpful to the claimants and could greatly improve the dose 
reconstruction process. There should be a better procedure for 
documenting how information provided by the claimants has been utilized 
in the dose reconstruction process, and if it has not been utilized, 
the claimant should be informed. NIOSH with input from the Advisory 
Board should also institute a vigorous quality assurance program to 
make sure that information provided by the claimants is being 
appropriately recorded and utilized.
    2. Improve the Process for Review and Participation by Petitioners 
and Worker Representatives. Although NIOSH has taken some steps to 
provide better input by SEC petitioners and worker representatives in 
the review of their technical documents, better efforts are needed. The 
current technical documents are largely based on input from people who 
managed the radiation monitoring programs at these facilities. In 
addition to a transparent and stringent conflict of interest program, 
NIOSH needs to ensure that SEC petitioners and worker representatives 
have adequate opportunity to review and provide input on the documents 
that are used in evaluating SEC decisions and conducting dose 
reconstructions. NIOSH's past practice has often been to meet with 
those representatives after the documents were completed. In fact, the 
Board has often been presented with SEC evaluation reports for sites 
where NIOSH has never held a public meeting to get input on their 
recommendations. NIOSH needs to continue to address this problem. In 
particular, NIOSH should assure that SEC petitioners and others 
involved in that process have full and timely access to all of the 
information that is being used for making decisions about a petition.
    3. Improve the Timeliness of the Program. This is the most 
difficult problem to address. Due to the complex technical nature of 
the program and the time and effort required to find and process past 
monitoring records, it is difficult to speed up the program and, at the 
same time, maintain a sound technical basis for the dose 
reconstructions and SEC petition reviews. One recommendation is to make 
sure that there are adequate resources to conduct the program for NIOSH 
and for the review of the technical documents by the Board and its 
contractors. This summer NIOSH was forced to stop much of its contract 
activities due to a funding shortfall, and this stoppage has 
significantly delayed many SEC petition reviews, technical document 
updates, etc. More importantly, NIOSH needs to reevaluate its approach 
of attempting to first conduct individual dose reconstructions and only 
after that fails to consider placing groups of workers in the SEC. 
There is no reason that over 5 years after the start of the program, 
that some of the initial few thousand claims should not have been 
completed. NIOSH often recommends that a group be added to the SEC in 
response to a petition in situations where NIOSH has already completed 
many dose reconstructions for that group. In other words, there never 
was an adequate basis for those dose reconstructions and the inadequacy 
of the data should have been recognized in the site profile and dose 
reconstruction development. NIOSH has a small program to self identify 
additions to the SEC cohort (so-called 83.14 petitions). This program 
should be expanded, and NIOSH should review their dose reconstruction 
and SEC regulations to better delineate situations where dose 
reconstructions are not feasible including situations where even 
determining feasibility may require several years of effort. Former DOE 
workers deserve a timely resolution of their claims and petitions.
    I appreciate the opportunity to appear before you today and would 
be glad to answer any questions.

    Senator Bingaman. Thank you very much.
    Dr. Silver, go right ahead.


    Mr. Silver. Thank you very much, Senator Bingaman, Senator 
Alexander, and other members of the committee.
    Senator Bingaman. You might push the button there on your 
speaker. There.
    Mr. Silver. Most of my education in environmental health 
sciences was supported by Federal training programs, but some 
of the Government's own facilities were at the bottom of the 
class when it comes to protecting workers' health. Contributing 
to a remedy for this situation, for the benefit of cold war 
workers, has educated my heart.
    I want to acknowledge the presence today of Terry and 
George Barry of the Alliance of Nuclear Worker Advocacy Groups 
and others. I hope you and your staff will take time to hear 
their ideas.
    The phrase ``cold war heroes'' is beginning to lose its 
shine of sincerity outside the beltway, as the promises made in 
enacting this law have turned to dross for many families. They 
deserve better than the delays and dubious excuse-making that 
are occurring and recurring systemically at each of the major 
steps in the claims process, involving each of the agencies 
with duties under the act. I'll be citing cases from Los 
Alamos, but you'll find many similar stories from claimants at 
Oak Ridge, in my written statement.
    Claimants are still experiencing major obstacles to getting 
medical and exposure records out of DOE sites. Alex Smith of 
Albuquerque, diagnosed with mercury poisoning in 1948, battled 
neuro-psychiatric problems, which forced him to retire in 1982, 
shy of his Social Security retirement age.
    After a field hearing in March 2000, I helped him find 
smoking gun evidence, the original memos and industrial hygiene 
reports. What's interesting, is that when Mr. Smith filed his 
claim in 2002, DOE turned over his supposedly complete medical 
file, but it contained almost no evidence of the mercury 
episode. Only when Congressman Tom Udall made another request 
on his behalf, were the handwritten notes of the diagnosing 
physician released.
    What has become of the hundreds of other claimants who 
couldn't access smoking gun documentation, or whose first 
language isn't English, or who didn't receive excellent 
constituents services, or were not among the most visible 
public citizens, like Mr. Smith was, in campaigning for the 
law. Many of the intended beneficiaries of this program are 
simply giving up.
    DOL has lost records submitted by claimants trying to meet 
the criteria of Part E. A few years ago, I helped Ben Ortiz of 
Nambe, NM compile a loose leaf binder of documentation for his 
wage loss claim. Each item was cross-referenced to specific 
clauses in DOL's regulations. It was submitted by the 
Congressman to DOL's Denver office in September 2005. In 
conference calls over the next few months, Mr. Ortiz and his 
daughters, who's his authorized representative, were unable to 
locate the contents of the notebook in the DOL bureaucracy. His 
tax returns for the last 3 years on the job were also submitted 
via the Congressman's office, but recently, a claims examiner 
told his daughter his wage loss claim was stalled because they 
supposedly don't have his tax returns.
    In early 2007, the local DOL resource center offered a 
startling explanation for the delays in this case. Each time 
congressional staff got involved, the explanation went, the 
paper file is sent from the District Office to DOL 
headquarters, where specialists in responding to congressional 
inquiries take over. Without the paper file in hand, claims 
examiners stop working on the case.
    Now, if there is truth to this explanation, it's kind of an 
embarrassing admission of DOL's inability to walk and chew gum 
at the same time, on some of these cases.
    Many NIOSH dose reconstructions have become a matter of 
what we call in science modeling, garbage in, garbage out. The 
agency relies on dosimetry data, which the site contractor, at 
the DOE facility, has typically had a chance to rework and 
edit. An insider told me that data NIOSH is using at Los Alamos 
had been ``massaged'' and ``taken care of '' before this 
program passed, to the point that, ``Lionel can feel very 
comfortable saying these are the official records of Los 
    Historical occurrence reports have been underutilized. So, 
I'm pleased to announce the public distribution of a CD-ROM 
containing more than 350 Los Alamos occurrence reports made 
public by CDC. Copies of the disc will be mailed to 20 key 
stakeholders in New Mexico, and this could get interesting.
    The claimant community may be getting on in years, with 
little time or energy to fight an increasingly Kafka-esque 
system, but they know what's going on here. And we need your 
good offices to fix it.
    So, No. 1, amend the statute to create an independent 
advisory board for external review and oversight of Part E. 
Under the radiation part of this law, we've learned that 
without outside checks and balances, Federal agencies will go 
badly astray.
    No. 2, remove the perverse incentive--real or perceived--
that DOL may currently have to stall in order to save on 
benefit costs, under Part E. Amend the statute so that Part E 
benefits can be paid to the estate of a claimant who dies 
before a pending claim is resolved. Physically locate a 
representative of the Ombudsman Office in each of the DOL 
resource centers, and give this Office expanded powers to work 
on Part B claims, and advocate, and when necessary, litigate 
for claimants. We also need technical assistance and advocacy 
grants for nonprofits doing this work, and we need to look at 
ways to create incentives for graduates of occupational 
medicine residency programs to go into practice in rural and 
community clinics near DOE facilities.
    There are nine other recommendations for reform in my 
written statement which will help make this law fulfill its 
promise as being claimant friendly.
    Thank you for your attention.
    [The prepared statement of Dr. Silver follows:]
                    Prepared Statement of Ken Silver
    My name is Ken Silver. I am an Assistant Professor of Environmental 
Health at East Tennessee State University. From 1997 to 2003 I lived in 
New Mexico. In 1999, as a consultant to an environmental health project 
at the University of New Mexico, I sat down with Mr. Ben Ortiz, a 
former Los Alamos worker made ill by toxic chemical exposures, to 
review his medical and exposure records. On seeing the names and 
affiliations of prestigious doctors and scientists who had examined him 
10 years earlier, and attributed his respiratory and neurological 
illnesses to job exposures, I thought ``Why wasn't he compensated a 
long time ago?'' We built a mailing list of people in New Mexico with 
similar concerns. Through action alert postcards, phone banking, op-
eds, a private meeting of families with Dr. David Michaels, and two 
large public meetings, we generated grassroots support for the 
legislative efforts of New Mexico political leaders in passing EEOICPA, 
the compensation law that is the subject of today's hearing.
    In my testimony today I call for increased congressional oversight 
of the activities of both DOL and NIOSH in administering this program. 
Administrative costs are exorbitant in comparison to the outcomes 
achieved. If the claimant community were getting what was expected, no 
one would begrudge the agencies a few extra dollars for administration. 
But worker knowledge is not being incorporated into radiation dose 
reconstructions. Close-out interviews are perfunctory. Site profiles do 
not reflect workers' concerns. Conflicts of interest are ignored. Quite 
incomprehensibly, historical occurrence reports, which represent a 
highly valuable source of information on workers' past exposures to 
radiation have been underutilized. The 2006 report of the DOL Office of 
the Ombudsman listed the top three concerns of claimants to be: (1) 
Difficulties in Proving Causation Issues; (2) Difficulties in 
Retrieving Employment, Exposure and Medical Records; and (3) Concerns 
About Claimant Interactions with DEEOIC Personnel. These problems are 
illustrated through three cases at Los Alamos, two of them Part E 
claims. Greater public oversight and involvement are recommended by 
means of: a Part E Advisory Board to DOL; initiatives to expand 
independent occupational medicine services at DOE sites; and funding 
for public interest participation.
                   congressional oversight is needed
    109th Congress. This committee and this Congress have a duty to 
pick up where the 109th Congress left off in conducting oversight of 
the EEOICPA program. The House Subcommittee on Immigration, Border 
Security and Claims held four oversight hearings between March and 
December 2006. Chairman John Hostettler summarized the oversight 
committee's findings: ``Backroom manipulation'' had occurred in a 
program which was ``supposed to assure workers the deceit was over and 
their government was finally going to do right by them.'' He said 
``those tasked with implementing the program'' ``need to be exposed for 
what they've done.'' And he encouraged continued congressional 
oversight: ``The babysitting of these individuals must continue.''
    Those of you in Washington who work on these issues are already 
familiar with the Office of Management and Budget's notorious pass-back 
memo which laid out five policy options for ratcheting down on the 
Advisory Board on Radiation and Worker Health (ABRWH) and its 
independent contractor, as well as the public petition process for 
membership in the Special Exposure Cohort (SEC).
    Outside of Washington, we had an ``Ah-ha'' moment upon learning of 
the pass-back memo. Until then we couldn't comprehend why a rising New 
Mexico labor leader and an outstanding public health physician were 
about to be removed from the Board. And it seemed Orwellian that anyone 
would raise conflict-of-interest issues about the only group of outside 
analysts hired to work on this issue in the public interest, SC&A, the 
audit contractor to the Advisory Board on Radiation Worker Health 
(ABRWH). Meanwhile, conflict of interest statements for the site 
profile team members at Los Alamos were not posted on the Web, as 
required by the official conflict of interest policy. Further, we were 
puzzled by a turnabout in Resource Center personnel from barnstorming 
tours of signing up claimants to publicly rationalizing the denial of 
claims in terms of ``saving tax dollars.'' And we saw few claims being 
paid at sites like Los Alamos.
    In skimming the document trove in Part V of the House Subcommittee 
hearings I noticed that chapters of the Los Alamos site profile (the 
Technical Basis Document or ``TBD'' were provided to DOL months before 
they were made available to the public. In fact, we had to wait until 
just 2 weeks before a meeting in June 2005, where Los Alamos workers 
and advocates were to discuss the site profile with NIOSH and ORAU, for 
the chapter on external dosimetry to be made available to us. But DOL 
had its copy a year earlier (e-mail from J. Kotsch to P Turcic, 
February 10, 2004). The reason for the delay is now obvious. DOL was 
concerned about passages in a draft version which described DOE 
dosimetry techniques as ``inadequate'' and old monitoring methods at 
Los Alamos as ``primitive'' and working conditions as ``deplorable by 
present-day standards.''
    DOL got its way: none of this language is in the final public 
version. Because DOL's role in the program is supposed to be that of a 
neutral adjudicator of claims, I must ask: When did DOL become known 
for its specialized expertise in health physics or the histories of DOE 
facilities. In one fell swoop, DOL program managers undermined the 
transparent process Congress intended and put at risk the reputation of 
NIOSH for scientific independence and responsiveness to labor concerns, 
which the agency rightly earned prior to EEOICPA.
    This calls for a response from Congress that is much sterner than 
    110th Congress. I require my students who are researching any 
environmental or occupational health policy issue to read and cite 
congressional committee hearings. They are the holy writ of the 
people's business. One Congress may talk about an issue, but they 
always leave a record in case the next one is ready to take action. The 
five volumes compiled by the House Subcommittee in the last Congress 
tell an important story about this part of the people's business.
    So, as this committee establishes its agenda for oversight of the 
EEOICPA program, I hope you'll begin where the House Subcommittee 
hearings left off. Your first order of business should be to secure all 
of the loose-leaf binders of internal documents which DOL assembled 
under threat of subpoena, but which House Subcommittee staff were only 
allowed to take notes on.
    Failure to continue the aggressive oversight activities begun in 
the last Congress will permit trends unfriendly to claimants to 
continue. SEC petitions that have been ostensibly approved could be 
subjected to upwardly creeping criteria for proving membership in the 
cohort. How will families of deceased Los Alamos construction workers 
employed prior to 1976 obtain documentation that places their loved one 
at one of the technical areas that is included in the SEC, when we know 
that most construction workers typically worked ``everywhere?'' Widows 
of construction trade workers, many of them now elderly, were among the 
main intended beneficiaries of former State Representative Harriet 
Ruiz's successful SEC petition. Will the Los Alamos SEC become a redux 
of Y-12, where claimants now have to furnish evidence of the specific 
buildings their loved ones worked in more than 60 years ago?
    Will competent attorneys avoid a program that provides insurance-
like benefits--but only if a claim meets increasingly tort-like 
standards of proof?
    In my testimony I make several suggestions for reforms. These are:

    (p. 6) Copies of the documentation specific to the claim used by 
the dose reconstructor should be routinely provided to Part B cancer 
    (p. 6) Claimants should also have a right to seek repeated 
extensions to 60-day requirement of signing the OCAS-1 form.
    (p. 10) Occurrence reports collections at DOE facilities hold the 
potential for a portion of dose reconstructions to be based on primary 
    (p. 10) DOL regulations could be revised to allow claimants who 
receive a probability of causation of 40 to 49 percent to submit expert 
medical opinion on the causation issue.
    (p. 12) DOL's adoption of an electronic records management system 
is an important area for congressional oversight.
    (p. 15) Allow coverage of non-cancerous diseases known to be caused 
by levels of ionizing radiation encountered in occupational settings, 
such as benign brain tumors and polycythemia vera.
    (p. 16) Ensure that the Part E Advisory Board (see below) has 
purview under the statute to independently audit all aspects of claims 
management by DOL, including (but not limited to) the training and 
performance standards of claims examiners.
    (p. 17) Revise DOL regulations so Part E benefits can be paid to 
the estate of a claimant who dies before a pending claim is resolved 
(through the appeals level).
    (p. 17) An independent Subtitle E board should be created by 
amending the statute.
    (p. 18) Adopt authorizing legislation for technical assistance and 
advocacy grants for EEOICPA activities.
    (p. 19) The purview of the DOL Office of the Ombudsman should be 
expanded to include Part B claims. Explicitly authorize the Ombudsman 
to ``advocate'' for claimants.
    (p. 19) Physically locate a representative of the Ombudsman's 
office in each of the DOL Resource Centers.
    (p. 19) Intra- and extramural funding mechanisms should be created 
for CDC to provide technical assistance to claimants' physicians and 
claimants' organizations involved in the development of causation 
evidence for Part E and Part B.
    (p. 19) Incentives should be created for graduates of occupational 
medicine residency programs to practice in rural and community clinics 
near DOE facilities.
  Administrative Costs Are Exorbitant in Relation to Outcomes Achieved
    Program statistics in a recent presentation by OCAS (the Office of 
Compensation, Analysis and Support) point to a program that is 
fundamentally broken. From 2001 to 2007 NIOSH has received $280 million 
to perform dose reconstructions. NIOSH work has resulted in total 
payments to claimants of $869,000,000. Administrative costs are 
therefore equal to 32.2 percent of payments (about one-third). Members 
of this committee are more familiar with the comparable administrative 
expense rate for other entitlement programs. For SSDI it's 2.5 percent. 
The average cost per case was $14,534 per dose reconstruction.
    DOL has rejected 4,726 cases, or about one-quarter (24.5 percent), 
and sent them back to NIOSH to be reworked, mainly because NIOSH 
updated its methods without redoing the earlier cases.
    GAO will have more to say about these numbers. But clearly, despite 
an unlimited budget, the two agencies responsible for the program don't 
agree on what is valid in one-quarter of the cases. Little surprise 
then that many claimants have lost faith in how the program is being 
       Worker Knowledge is Not Being Incorporated Into Radiation 
                          Dose Reconstructions
     close-out interviews are perfunctory and lack quality controls
    A key step in the processing of an EEOICPA claim is the close-out 
interview when the claimant must sign the OCAS-1 form. This completes 
the gathering of facts from the claimant for dose reconstruction. The 
next step is administrative review by the DOL, where the probability of 
causation is determined. Decisions to award or deny compensation can 
hinge on the close-out interview.
    Survivor Claimants. At cold war era nuclear facilities, spouses and 
children of employees have little knowledge of the work that was done. 
Spouses with claims are often elderly, with nowhere to turn for 
documentation of exposure-related issues. An illustrative case is 
Gertrude Finley's claim, one of the first filed in New Mexico in 2001, 
for her husband's death due to non-Hodgkin's lymphoma (see below). From 
Knoxville, TN Kathy Bates told her family's Kafka-esque story to the 
House Subcommittee. It begins with her mother receiving a preliminary 
dose reconstruction for the wrong person, not her deceased husband. She 
followed a NIOSH case worker's instructions to discard the report, only 
to receive a call a short time later from another case worker who was 
bent on conducting the close-out interview, before the report on the 
correct person was even in-hand. After several years of continued back-
and-forth, they are now in the midst of their third dose reconstruction 
with NIOSH.
    SC&A Study. But survivor issues are not the only concern. The 
ABRWH's auditor, Sanford Cohen and Associates, recently issued a report 
based on auditors listening in on three close-out interviews. In two 
cases specific information provided by the claimants was ignored. No 
attempt was made to obtain reports or review data. In essence, the 
claim's fate was already sealed, but the claimant didn't know it.
    The auditors found ``potential for inconsistency and arbitrariness 
in how concerns are researched, communicated and resolved.'' Most 
shocking is that key decisions are made by personnel called ``HP 
Reviewers'' who, in fact, lack health physics qualifications or 
experience in dose reconstruction The auditors recommend that HP 
Reviewers at least make detailed notes about what was done to address 
claimants' concerns that are raised in close-out interviews.
    Los Alamos Ironworker. Ron Chavez, a member of Ironworkers' Local 
495, has been treated for non-Hodgkin's lymphoma. He worked at Los 
Alamos from 1994 to 2000. With his claim pending, in September 2007 he 
requested from NIOSH copies of his dosimetry data as well as the 
educational background of the dose reconstructor assigned to his case. 
He alleges that a manager surprised him by threatening to turn that 
very phone call into the close-out interview. Mr. Chavez felt this was 
an arbitrary attempt to close-out his claim prematurely.\1\
    \1\ Mr. Chavez did receive his dosimetry data. He notes that it 
shows a zero for the first quarter of 2002. That strikes him as 
implausible: he still has his badge from that quarter. His last day of 
work was February 4, 2002. He never turned in his dosimetry badge. To 
his way of thinking, this casts doubt on the rest of his dosimetry 
data, which is entirely comprised of zeros. ``My buddies have the same 
thing,'' he told me. ``Zeros all the way through.''
    Administrative Reform. Copies of the documentation specific to the 
claim used by the dose reconstructor should be routinely provided to 
Part B cancer claimants. This would provide a simple check on sloppy 
close-out interviews harming claimants' interests. This documentation 
should be provided long before the close-out interview takes place. 
Claimants would then have an opportunity to generate and pursue leads 
to additional information, or seek independent technical assistance in 
critically analyzing the data.
    Regulatory Reform. Claimants should also have a right to seek 
repeated extensions to 60-day requirement of signing the OCAS-1 form.
       technical basis documents do not reflect workers' concerns
    The problem of assessing the probability that a given cancer was 
caused by or contributed to by radiation exposure can be approached 
using at least four types of knowledge:

    1. radiation dosimetry data,
    2. models,
    3. historical knowledge of processes, operations and occurrences, 
    4. expert opinion.

    The current system used by NIOSH is heavily weighted toward 
radiation dosimetry data and models (#1 and #2), despite serious 
misgivings in the wider scientific community. While the Technical Basis 
Documents (site profiles) compile some historical knowledge of 
processes and operations, they are deficient in the use of occurrence 
reports. As described below, this deficiency serves to exclude the 
first-hand knowledge of workers. In the end, the reliance on dosimetry 
data and models tilts the site profile away from a workers' 
perspective. Site managers are considered ``experts.'' As a result, 
site profile documents rely heavily on written Standard Operating 
Procedures (SOPs) which delineate how radiation ``ought'' to have been 
measured. Workers' expertise is seldom represented on ORAU site profile 
teams; their insights into what actually occurred is given short 
    Worker Submissions Ignored. In December 2003, worker Glenn Bell 
provided NIOSH and ORAU with two documents (accompanied by release 
forms) pertaining to historical operations and processes in the Y-12 
complex at Oak Ridge. Mr. Bell believed they contained facts which 
could introduce a few more claimant-friendly assumptions into dose 
reconstructions for Y-12 claimants. He reiterated his concerns at the 
January 2006 meeting of the ABRWH in Oak Ridge. Yet the documents 
remain ``under review'' by ORAU. The facts they contain have not yet 
been incorporated into the site profile for dose reconstructions at Y-
12. Mr. Bell wonders how many other key documents have been ignored.
    Conflicts of Interest Ignored. The Los Alamos site profile was 
developed by a 19-member team, a majority of whom are current or former 
Los Alamos employees with responsibility for radiation safety. In 
testimony before the House Subcommittee on Immigration, Border Security 
and Claims on May 4, 2006 Congressman Tom Udall expressed concern over 
the fact that conflict of interest disclosure statements had not been 
posted on the ORAU Web site for 8 of these 10 team members. More than a 
year later, the situation has changed--for the worse. None of the 10 
current or former Los Alamos employees have disclosure statements 
posted at the current time.
    Occurrence Reports Not Fully Utilized. Site profiles are based 
mainly on the written SOPs for radiation monitoring which were prepared 
by management at each DOE site. ``SOPs'' are written expressions of how 
radiation doses ``ought'' to have been measured. They do not document 
how it actually was measured under upset or accidental conditions in 
the field. Many workers recall incidents in which SOPs were ignored due 
to expediency, time pressures, or inadequate staffing.
    In contrast to SOPs, occurrence reports document what actually 
happened under abnormal conditions, when workers are most likely to 
have been overexposed. These reports could provide an important 
antidote to NIOSH's over-reliance on idealized SOPs and the perspective 
of facility managers in the site profiles.
    At the June 2005 meeting between ORAU and former Los Alamos 
employees in Espanola, it was noted that the site profile contained no 
information from the LANL historical occurrence reports collection. 
This is a collection of paper reports, memoranda and monitoring data 
which documents hundreds of radiation spills, leaks, environmental 
releases and worker contamination episodes from 1946 to 1990. Part of 
my doctoral dissertation research was based on reports of off-site 
environmental release contained in this collection. For each occurrence 
in which radioactive contaminants escaped off-site, I found roughly 
five times as many reports which involved worker-only contamination. 
Elsewhere I have estimated that there are likely to be hundreds of 
``worker only'' occurrence reports from the era of the Manhattan 
Project through the 1980's.
               Potential Usefulness of Occurrence Reports
    Numerous workers and survivors have voiced frustration upon 
reviewing their supposedly ``complete'' medical and exposure records 
from DOE facilities, only to find key pieces of documentation missing--
occurrence reports, finger ring dosimetry data, internal bioassay 
results, etc. This problem could be addressed by a more aggressive 
approach by NIOSH in utilizing historical occurrence reports 
collections at DOE facilities. Occurrence reports contain individual 
identifiers such as names, employee identification numbers and group 
affiliation. These reports could be used to improve the quality of dose 
reconstructions in several ways.
    First--and most obviously--the listing of an individual's employee 
identification number in an occurrence report is conclusive evidence of 
the worker's presence at an incident where a dose was likely incurred, 
a dose which may not be documented elsewhere. This applies particularly 
to internal radiation doses received in contamination incidents which 
took place before internal bioassay programs were fully implemented.
    Second, in cases where the claimant (or interviewee) describes an 
incident but is unable to provide precise dates, occurrence reports 
should be mined in pursuit of contemporaneous documentation. For 
example, an individualized docket notebook was compiled by an advocacy 
group for an EEOICPA leukemia claimant at Los Alamos using a 
``Surrogate Incident Report'' form. Its purpose was to alert dose 
reconstructors to the possible availability of documentation for 
incidents which the worker recalled from memory. The claim was 
ultimately awarded under Parts B and E.
    Third, exposures resulting from incidents which were never 
documented, but are described in sufficient detail by interviewees, 
could be quantitatively modeled using similar incidents that are 
documented in an occurrence reports collection.
    Fourth, radiation dosimetry records do not capture information on 
dermal contact with radioactive materials. However, many occurrence 
reports do provide detailed information about levels of contamination 
on workers' clothing, shoes and skin.
    Example: Clean-up Crews at Los Alamos. Phillip Schofield, a former 
plutonium glove box worker and facility inspector at LANL, provided a 
compelling rationale for relying more on occurrence reports than on 
individuals' badge data in some cases. When a spill occurred, many 
employees would be summoned to clean it up. On several occasions Mr. 
Schofield was one of those employees. Stationed at the entrance to the 
room was a radiation control technician (RCT) who would collect the 
radiation badge of each entering clean-up worker. That's right: each 
worker removed his badge and handed it to the RCT. The rationale was 
that if the badge became contaminated with bulk quantities of 
radioactive dust or liquid, then it would give an inaccurate 
measurement of the dose to the individual.
    The standard procedure for estimating each clean-up worker's dose 
was to use the RCT as a proxy for everyone on the job. A problem arises 
when the RCT remained stationed at the door for most of the clean-up: 
the RCT had less potential for exposure than the actual clean-up crew. 
Thus, individuals' official dosimetry records will represent an 
underestimate of the true dose received. This bias may be partially 
remedied by incorporating environmental measurements and other facts 
from occurrence reports into individual dose reconstructions in the 
four ways described above.
    Example: Clean-up Workers at Oak Ridge Y-12. Large spills of 
radioactive liquids at the Y-12 plant during World War II triggered a 
standard procedure in which clean-up crews first built retaining 
structures and then recovered the spilled materials. Survivors of two 
of the men doing this work believed that their claims, both for colon 
cancer, would be covered by the Special Exposure Cohort for Y-12. 
However, under recent interpretations of this SEC, the families have 
been presented with an additional burden. They are now required to 
provide direct evidence of the handling of radioactive materials or 
employment in a specific building--60 years ago. Attorney Bob Warren of 
Black Mountain, North Carolina obtained an affidavit from a priest to 
one of the workers who remembers his parishioner's clothing have been 
burned due to contamination incurred on one clean-up operation. 
However, DOL has indicated to Attorney Warren that the affidavit is 
insufficient evidence of contact with radioactive materials.
    This is precisely the kind of situation in which access to 
historical occurrence reports collections at the covered facilities 
would give families a reasonable opportunity to meet EEOICPA's often 
murky standards of evidence.
                cd-rom of los alamos occurrence reports
    I am pleased to announce public distribution of a CD-ROM containing 
more than 350 Los Alamos occurrence reports. For many years these were 
for ``official use only.'' The Centers for Disease Control's Los Alamos 
Historical Documents Retrieval and Assessment Project (LAHDRA) has made 
these documents available to the public for the first time. Individual 
identifiers have been removed. If a claimant recalls an incident but 
lacks documentation, then there is a possibility that it is contained 
on this disk. The disk has been indexed and formatted for quick 
    Twenty copies of the disk were placed in the mail yesterday to key 
stakeholders in New Mexico: cancer claimants, workers, widows and 
advocates on EEOICPA issues, along with a few journalists who cover the 
issue. Copies will also be provided to the five congressional offices 
representing New Mexicans.
    This collection is incomplete, however. The LAHDRA project is 
concerned with off-site releases of radioactive materials. The 
occurrence reports on this disk were selected on that basis, but many 
of them happen to have entailed worker exposure as well. The ``Total 
List'' file includes dates and a few details on numerous worker-only 
incidents for which the actual occurrence reports are not yet 
    Importantly, each site in the DOE complex is likely to have a 
similar collection of historical occurrence reports which could be 
helpful to EEOICPA claimants. Only in later years were these kinds of 
reports digitized. At Los Alamos occurrences after 1990 are in an 
online system.
           primary documentation to verify workers' knowledge
    A key area of ongoing oversight on the EEOICPA issue is the extent 
to which NIOSH dose reconstructions have taken account of information 
other than individuals' official radiation dosimetry records. Are NIOSH 
and ORAU really tapping into workers' knowledge? Is this knowledge 
being incorporated into site profiles (TBDs) and individuals' dose 
reconstructions' SC&A's audit of close-out telephone interviews 
suggests otherwise. Rather than dismissing workers' recollections as 
``anecdotal'' information, are NIOSH and ORAU aggressively searching 
for confirmatory evidence in historical occurrence reports collections? 
A truly ``claimant friendly'' dose reconstruction process would leave 
no stone unturned in locating documentation to verify workers' 
    Administrative Reform. Occurrence reports collections at DOE 
facilities hold the potential for a portion of dose reconstructions to 
be based on primary documentation. Use of primary documentation could 
serve as a quality check on dose reconstructions performed with 
internal dosimetry data which some DOE sites have provided only after 
long delays and re-formatting.
                       medical opinion in part b
    Another source of expert opinion which is not yet accommodated in 
assessing the probability of causation under Part B is that of 
physicians who have diagnosed and treated the individual claimant. It 
is not unprecedented for a cancer specialist to submit a written 
opinion asserting the work-relatedness of a claimant's cancer, but the 
claim to be denied because dosimetry data and models produced a 
probability of causation of less than 50 percent.
    Administrative/Legislative Reform. DOL regulations could be revised 
to allow claimants who receive a probability of causation of 40 to 49 
percent to submit expert medical opinion on the causation issue. This 
claimant-friendly reform would represent a candid admission of the 
imprecision of Probability of Causation determinations made from 
dosimetry data and models. In these borderline cases, medical opinions 
of sufficient probative value could tip the balance in the claimant's 
               DOL Resource Centers and Regional Offices
    The offices of the EEOICP most frequently encountered by claimants 
are Resource Centers and DOL's district offices. Claims examiners are 
located in the district offices. Abundant evidence indicates that 
neither of these points of contact is living up to a standard of 
    In the 2006 ``. . . Report to Congress'' by the Office of the 
Ombudsman, the top three categories of claimants' concerns were:

    1. Difficulties in Proving Causation Issues;
    2. Difficulties in Retrieving Employment, Exposure and Medical 
Records; and
    3. Concerns About Claimant Interactions with DEEOIC Personnel.

    These issues are illustrated in detail by the experiences of:

    1. Ben Ortiz, a former Los Alamos electromechanical technician, 
whose on-the-job exposure to chemicals led to his ``medical 
termination'' from Los Alamos in 1989 with reactive airways dysfunction 
syndrome (RADS) and chronic solvent encepha-
    2. Alex Smith, a former Los Alamos chemical technician and 
machinist who was diagnosed with mercury poisoning in 1948 and suffered 
neuropsychiatric conditions in the ensuring years; and
    3. Gertude Finley, the 86-year-old widow of Jack Finely who died 
from non-Hodgkin's lymphoma after working for Los Alamos in the 
transport of shipments of nuclear weapons and radioactive materials.
                              1. ben ortiz
    Espanola Office to Claimant: Congressional Constituent Services 
Will Delay Your Claim. Ben Ortiz was among the first former Los Alamos 
workers to file a claim under EEOICPA, having been the principal 
grassroots organizer in the New Mexico campaign for the law's passage 
in 1999. (See ``Background'' above). He received a favorable 
determination for his respiratory ailments from a DOE Physician's Panel 
under Subtitle D. Except for limited medical coverage, by the end of 
2006 he had not yet received benefits under Part E. Mr. Ortiz should be 
eligible for wage loss and impairment benefits.
    In early 2007 the Espanola Resource Center proffered a startling 
explanation for the delays in DOL's processing of Mr. Ortiz's claim. 
Repeated involvement by constituent services staff from congressional 
offices had delayed the claim. Each time congressional staff got 
involved, the explanation went, Mr. Ortiz's paper file was sent from 
the regional office to DOL headquarters in Washington, DC. where 
specialists in responding to congressional inquiries would take charge. 
Without the paper file in hand, claims personnel in the regional office 
would stop working on the case.
    If there is truth to this explanation, it is an embarrassing 
admission of DOL's limited infrastructure for smoothly administering 
claims under a program with a high degree of congressional interest. 
The old saw about a dolt who ``Can't walk and chew gum at the same 
time'' comes to mind.
    Oversight. DOL's adoption of an electronic records management 
system, however belated, is an important area for congressional 
    Regional Offices and Claims Examiners. In 2005 I assisted Mr. Ortiz 
and Marla Gabaldon (his daughter and authorized representative), in 
compiling a three-ring loose-leaf binder of medical and exposure 
documentation. Each item was cross-referenced to specific paragraphs 
and clauses in DOL's regulations for Subtitle E causation and wage loss 
determinations. Included in the notebook was a medical report from a 
nationally recognized occupational medicine specialist who evaluated 
Mr. Ortiz in 1990 at the University of California San Francisco. Also 
included were neurocognitive tests performed by a specialist, who 
trained at the Environmental Sciences Laboratory of Mt. Sinai Hospital 
in New York. Excerpts from Mr. Ortiz's symptom diary in the months 
leading up to his medical termination were also included.
    The 3-ring binder was submitted by Congressman Tom Udall's staff to 
the DOL's Denver office in September 2005. In periodic conference calls 
held during the next several months, Mr. Ortiz and his daughter were 
unable to ascertain where in the DOL bureaucracy the notebook wound up.
    A changing cast of claims examiners has not helped. Mr. Ortiz 
estimates he has had at least six different claims examiners since DOL 
took over administration of the program. On a recent conference call he 
was told that DOL had not received his documentation of wage loss. In 
fact, Mr. Ortiz's IRS tax returns for the years in question (1986-1989) 
had been submitted by Congressman Udall's office to DOL months earlier. 
``And,'' his daughter writes in an e-mail,

        ``as if that wasn't bad enough, during the phone conference 
        they are flipping through the file to find the stuff they've 
        asked us for. The claims examiners are not examining the 

    She continues:

          ``Information he has gotten from the Resource Center is 
        incorrect. Most recently he was misinformed about the 
        impairment rating. He'd been told that if he signed a waiver, 
        then a DOL medical consultant would use the information already 
        in his file to develop the impairment rating. We later learn 
        that my dad would need to send in documentation for the 
        impairment rating.''

    When I last saw Ben Ortiz in August he mentioned that the Resource 
Center was asking him to submit the standard form affirming that he is 
not receiving SSDI. He clearly remembers already having submitted this 
form to the Resource Center months ago.
                             2. alex smith
    1948 Mercury Poisoning. Senator Bingaman and staff are familiar 
with the case of Mr. Alex Smith of Albuquerque, (thanks to excellent 
constituent services provided by the Senator's office and by 
Congressman Tom Udall). When Mr. Smith testified at the March 18, 2000 
field hearing in Espanola, convened by then Assistant Secretary of 
Energy Dr. David Michaels, he recounted how he and several co-workers 
were diagnosed with mercury poisoning in 1948 by Dr. Harriet L. Hardy. 
She ordered the crude mercury still they were operating in K-Stockroom 
to be shut down. Then she took the men to medical grand rounds in Los 
Alamos to teach local doctors about the signs and symptoms of mercury 
poisoning. Among these signs was the classic blue line in the workers' 
    Early Retirement. Mr. Smith told the March 2000 hearing about how 
he suffered neuropsychiatric problems in the ensuing years, leading to 
his early retirement from LANL in early 1982. Although he repeatedly 
cited the earlier mercury poisoning episode in discussions with Lab 
doctors, and requested documentation of the incident, none was provided 
by the Lab medical department. Maybe the Lab doctors didn't know where 
to look for the documentation. Or, more likely, the institution's 
restrictive practices governing access to documentation of the health 
impacts of Lab operations barred the doctors from furnishing this 
important personal health data to Mr. Smith. Plain and simple, in Mr. 
Smith's words, a ``cover-up'' took place. At the time of his early 
retirement, he recalls feeling like the Lab doctors were intimating he 
might be a little crazy, as if he'd made up the whole incident.
    ``Smoking Gun'' Evidence. At the May 2002 field hearing at the 
Convento in Espanola, where DOE Assistant Secretary Beverly Cook was 
called to account for Subtitle D's dismal performance, Mr. Smith held 
up the 1948 memos for all to see that he wasn't crazy. (Shortly after 
his March 2000 testimony I found Dr. Hardy's memoranda about the 1948 
mercury poisoning episode in an online DOE data base. The episode is 
also described in her autobiography and older editions of her 
textbook). Congressman Udall's staff assisted him in filing a Privacy 
Act request with DOE to obtain one of the memos with his name 
unredacted. Despite this ``smoking gun'' evidence, Subtitle D produced 
nothing of benefit to Mr. Smith.
    Medical Records. Congressional intervention again led in 2006 to 
LANL releasing Mr. Smith's supposedly ``complete'' medical record. An 
item-by-item comparison of this file the one initially released to the 
Espanola Resource Center upon Mr. Smith filing his claim in 2002 
reveals a striking difference. Only with the congressional intervention 
did Mr. Smith receive Dr. Hardy's original hand-written clinical notes 
dated February 19, 1948 in which she first suspected mercury poisoning. 
However, Mr. Smith has not yet obtained a report cited elsewhere in his 
record which is likely to contain the results of the urinalyses he 
remembers Dr. Hardy ordering. Her textbook account of the episode 
refers to the urinalyses. But her autobiography recounts battles with 
classification officers over disclosing uses of mercury at the Lab.
    Soon upon leaving Los Alamos, Dr. Hardy published an article in 
Physics Today to alert the nascent atomic energy industry to the 
hazards of mercury. It does not mention the episode in K-Stockroom.
    Wage Loss Claim. Mr. Smith's Subtitle E claim was initially 
rejected by DOL. But with the help of Albuquerque attorneys Robert 
Maguire and Matt Hoyt, on appeal in March 2007 Mr. Smith won a 
Recommended Decision for payment of wage loss. Key pieces of evidence 
were reports from occupational medicine and neuro-
toxicology specialists at a Boston area institution. Mr. Smith traveled 
there at his own expense.
                           3. gertrude finley
    The case of Gertrude Finley of Albuquerque, now 86-years-old, is 
illustrative of the problems faced by survivors with cancer claims 
under Part B. Her husband Jack Finley worked from 1961 to 1977 as a 
Security Shipment Specialist responsible for escorting shipments of 
nuclear weapons and radioactive materials. Mr. Finely was diagnosed 
with non-Hodgkin's lymphoma in 1990. The Finley's were among the first 
families in New Mexico to file a claim on July 8, 2001.
    Ms. Finley is represented by Attorney Margret Carde of New Mexico 
Legal Aid (which is an indication of the widow's financial situation). 
Attorney Carde has prepared a 6-page, 50-item chronology of letters, 
form-filings, phone calls and reports.\2\ It is punctuated by 
involvement by Senator Bingaman's staff. On one level, Ms. Finley is 
one of the lucky ones: only once did she receive correspondence 
addressed to the wrong person (a ``Mr. Spencer'').
    \2\ The 50-item chronology of a widow's interactions with the 
EEOICPA program over 7 years brings to mind the words of Labor 
Secretary Willard Wertz. Testifying before a hearing of the Joint 
Committee on Atomic Energy in 1967 about the failure of all levels of 
government to address job hazards to uranium miners, he said: ``It is a 
record, nevertheless, of literally hundreds of efforts, studies, 
meetings, conferences and telephone calls--each of them leading only to 
another--most of them containing a sufficient reason for not doing 
anything then--but adding up over a period of years to totally 
unjustifiable ``lack of needed consummative action.''
    In October 2003, a computer-assisted telephone interview was 
conducted with Mrs. Finley who, according to Attorney Carde, had ``no 
idea of what Jack did because he worked in a classified area.'' The 
dose-reconstruction proceeded, with Mr. Finley's multiple skin cancers 
also included.
    On August 1, 2005 she received a Recommended Decision. In the 
``Finding of Fact'' section, point #7 states:

          ``It was shown that Jack Finley's nonhodgkins lymphoma, basal 
        carcinoma of the left ear and right hand, and multiple squamous 
        cell carcinomas were 50 percent or greater probability (more 
        likely than not) caused by his occupational radiation exposure 
        during his employment with DOE.''

    But then point #8 states:

          ``The probability of causation for the nonhodgkins lymphoma, 
        basal carcinoma of the left ear and right hand, and multiple 
        squamous cell carcinomas diagnosed on various dated [sic] from 
        1990 through 2001 was determined to be 42.69 percent.''

    Fortunately, Mrs. Finley has an attorney to try to figure out what 
exactly this means, and to address other inconsistencies and omissions. 
The Recommended Decision was remanded by the Final Adjudication Branch. 
A revised dose reconstruction led to the conclusion that ``further 
research and analysis would not produce a level of radiation dose 
resulting in a probability of causation of 50 percent or greater.'' Ms. 
Carde had two conference calls with a NIOSH representative to question 
why the second dose reconstruction resulted in a lower probability of 
causation than the first dose reconstruction, despite the evidence of 
two additional new cancers.
    Other Illustrative Cases. Consistent with the Finley family's 
confusing ``Recommended Decision,'' in which points #7 and #8 were 
frankly contradictory, a worker advocate at Oak Ridge says: ``I've yet 
to see a Recommended Decision without mistakes in it.''
    A compelling example of mismanagement of a claim is that of 
pancreatic cancer in an Oak Ridge construction worker on whose dose 
reconstruction report employment at K-25 for most of the 1970's is 
listed. Clearly, this employee was eligible for inclusion in the SEC 
for K-25. A dose reconstruction wasn't even necessary. This is further 
evidence of the ``gross ineptitude'' cited at the November 15, 2006 
House Subcommittee hearing which resulted in members of the SEC at the 
Nevada Test Site having their claims needlessly delayed by dose 
    The Eichler Family of Knoxville, TN won a remand from a DOL 
administrative law judge of a recommended decision to deny compensation 
for Dr. Eugene Eichler's testicular cancer and for a fatal brain tumor. 
DOL rejected the brain tumor because of a medical report which 
identified the brain tumor as a ``meningioma.'' In DOL's view that 
meant it was ``histologically benign.'' Pointing to another medical 
report which described it as ``malignant'' the judge remanded, 
explicitly citing the claimant-friendly intent of the law. The judge 
also ordered a closer look at Dr. Eichler's employment history which is 
especially well-documented. Yet in April 2006 the brain tumor was again 
rejected for coverage. There is no record of colleagues and co-workers 
whose names were provided to the dose reconstructors ever having been 
contacted. And the family feels the employment history has been 
disregarded. As for the testicular cancer, a second dose reconstruction 
was of no avail, because it used almost the exact same information as 
the first one.
    Reform. Amend Part E to allow coverage of non-cancerous diseases 
plausibly caused by levels of ionizing radiation encountered in 
occupational settings, such as benign brain tumors and polycythemia 
    The chair of the Beryllium Support Group at Y-12 (Oak Ridge) 
reports some of his members have complained of rudeness on the part of 
claims examiners. Equally distressing are cases in which claims 
examiners are ignorant of basic facts about common occupational 
diseases. In an Oak Ridge case of CBD which was ultimately fatal due to 
cor pulmonale, the worker advocate representing the claimant was 
dismayed to find that the claims examiner was unaware of the cardiac 
complications of CBD. ``It's not the claims examiner's fault,'' the 
advocate says. ``He just didn't know. He wasn't trained.''
    In a case of asbestosis in a construction worker who had never 
worked anywhere but Hanford, another worker advocate voiced frustration 
over having been told by a claims examiner she would ``have to prove'' 
that asbestos exposure occurred at Hanford. Asbestos was ubiquitous in 
large nuclear and industrial facilities during the era in question--a 
fact which is obvious to students of occupational health.
    An occupational health professional at a DOE facility describes the 
DOL program as a ``nightmare'' for employees of the site who have 
beryllium sensitivity or CBD. ``Lost files'' and ``long delays'' are 
even affecting claims which are fully supported by the DOE site 
contractor. Claimants ``overwhelmingly can't get through'' or ``get a 
response'' from the district DOL office. This perspective was shared 
with me on the condition that I not name the facility. (Occupational 
health professionals are not immune to job retaliation). Suffice it to 
say that this institution and its staff are not accustomed to being 
ignored. What happens to claimants who have less formal education when 
they submit documentation about their claims to DOL?
    Legislative Reform. Ensure that the Part E Advisory Board (see 
below) has purview under the statute to independently audit all aspects 
of claims management by DOL, including (but not limited to) training 
and performance standards for claims examiners.
                    implications for other claimants
    ``Concerns about Claimant Interactions with DEEOIC Personnel'' was 
the third-ranked issue identified by the 2006 report of the Office of 
Ombudsman. Frequent changes in claims examiners and changes in the 
district office to which a claim is assigned were cited in the report. 
Loss of documents and duplicative requests to submit paper work were 
also cited. This is especially cruel in view of the causation standard 
for Part E:

        ``by a preponderance of evidence the type of toxic substance(s) 
        they were exposed to, when and where this exposure(s) took 
        place, and the extent and time period that the exposure(s) took 

    Even claimants who meet this standard cannot be assured that their 
records won't go missing.
    The experiences of Ben Ortiz and Alex Smith are not isolated 
incidents. That these difficulties affected claimants who were so 
visible in the campaign for passage of EEOICPA, and have worked closely 
with congressional constituent services, makes one shudder to think how 
claimants with lower public profiles are being treated. Their best hope 
may be to find legal counsel when their claim is denied, and try to 
prevail on appeal.
    What has become of the hundreds of other claimants who could not 
gain access to ``smoking gun'' or contemporaneous documentation of 
their exposures and illnesses? What about those who did not have 
written, occupational diagnoses from internationally recognized 
physician-scientists, backed up by evaluations performed by specialists 
using the latest methods of clinical and neurobehavioral testing? What 
about claimants who can't pay out-of-pocket for specialized medical 
evaluations? Or those whose first language isn't English? Or those who 
didn't receive effective constituent services from their congressional 
    What happens in those households at the end of a long, drawn out 
process of retrieving records from a DOE contractor, submitting 
documentation to DOL, and the system responds with ``What medical and 
exposure records?''
    It is not surprising to hear from claimants' advocates that many of 
the intended beneficiaries of the program are simply giving up. The 
hurdles have simply become too difficult for an increasingly elderly 
claimant population.
    Regulatory/Legislative Reform. Revise DOL regulations so Part E 
benefits can be paid to the estate of a claimant who dies before a 
pending claim is resolved (through the appeals level). Under current 
law, nothing is paid when an elderly claimant passes on. This will 
remove the perverse incentive, real or perceived, that DOL has to stall 
in order to contain program benefit costs.
                      Part E Advisory Board to DOL
    A key lesson from the first 6 years of EEOICPA implementation is 
that an independent oversight board can keep government agencies that 
have been charged with carrying out a ``claimant-friendly'' program 
from going astray. Through its external review and oversight functions, 
the ABRWH has provided essential checks and balances on the activities 
of NIOSH staff. The Board's meetings have also brought needed 
transparency to the dose reconstruction process. Especially 
illuminating have been the special projects conducted by the Board's 
auditor, Sanford Cohen and Associates.
    Meanwhile, DOL's implementation of Subtitle E has occurred with no 
independent oversight. Determinations of occupational disease causation 
are being made routinely by claims examiners and district medical 
consultants. Few of the guideposts used to make these determinations 
are publicly available. Nor have the qualifications of the district 
medical examiners been subjected to outside evaluation.
    Legislative Reform. An independent Subtitle E board should be 
created by amending the statute. Its role will be to provide external 
review and oversight of the DOL's occupational disease determinations, 
coverage of consequential conditions, and overall implementation of 
Part E. Like the ABRWH, members would be selected from relevant 
disciplines (i.e., epidemiology, toxicology, occupational medicine) and 
sectors (claimants, workers, health professions, government agencies).
                     Public Interest Participation
    Claimants face many high hurdles in accessing and interpreting 
records, seeking diagnoses, and advocating for themselves. The nature 
of the preparation work is similar to a tort case, while the benefits 
are comparable to an insurance program. The statute contains caps on 
legal fees. These factors may discourage competent attorneys from 
getting involved. Further, many DOE sites are located in remote rural 
regions of the country where occupational medicine practitioners with a 
worker orientation are hard to find. After several years of being out 
of work due to chronic illnesses, few claimants can afford to travel to 
see big city ``occ docs.'' Union locals at DOE sites that have closed 
down are no longer able to assist claimants due to obvious resource 
limitations. Technical assistance on responding to the intricacies of 
dose reconstruction and Part E causation standards is generally 
unavailable through the DOL Resource Centers.
    The Ombudsman's office at DOL is the subject of many favorable 
comments from the community of claimants' advocates. At a minimum, 
Congress should expand the Ombudsman's purview to Part B claims. 
Administratively, DOL should physically locate a representative of the 
Ombudsman's office in each of the DOL Resource Centers so they are 
available to trouble-shoot and advocate for claimants at any step of 
the process. Another simple enhancement would be to routinely inform 
and assist claimants with Privacy Act requests for DOE records.
    However, as part of the very institution they are expected to keep 
watch over, the Office of the Ombudsman can only go so far in 
advocating for change. Broader problems can be addressed by a technical 
assistance grants program for claimant advocacy organizations and 
incentives for graduates of occupational medicine residency programs to 
practice near DOE sites (see below).
    Technical Assistance Grants. Congress needs to remind the agencies 
responsible for administering this program that the public's interest 
on occupational health issues are often best articulated by advocacy 
organizations. Funding of these organizations for claimant education, 
commenting on agency regulations, petitioning for SEC status, and 
traveling to important meetings is essential. The disparity between the 
multi-million dollar contract for dose reconstruction services and many 
claimants' subsistence on fixed incomes is glaring. People who have 
``gone without'' often have ideas for reducing wasteful government 
spending. But to have a voice, they must be able to get to the meeting 
fully prepared, ideally as part of an organization of like-minded 
citizens who are willing to extend a helping hand.
    At the second House Subcommittee Oversight hearing on May 4, 2006, 
Congressman Tom Udall voiced support for a technical assistance 
    Legislative Reform. Congress should adopt authorizing legislation 
for technical assistance and advocacy grants for EEOICPA activities.
    Legislative Reform. The purview of the DOL Office of the Ombudsman 
should be expanded to include Part B claims. Explicitly authorize the 
Ombudsman to ``advocate'' for claimants.
    Administrative Reform. Physically locate a representative of the 
Ombudsman's office in each of the DOL Resource Centers so they are 
available to trouble-shoot and advocate for claimants at any step of 
the process.
                     Occupational Medicine Services
    In the 2006 Ombudsman's report the top-ranked concern under 
Subtitle E was ``Difficulties Proving Causation Issues.'' Several areas 
are ripe for reform to make Subtitle E more claimant-friendly on 
causation issues.
    The Ombudsman's report correctly notes that many claimants shy away 
from allowing DOL doctors to make causation determinations. However, 
when they go to their physician of choice, it quickly becomes apparent 
that the evidentiary requirements under Part E are beyond the expertise 
of many doctors. ``DOL wants verse and script in my doctor's opinion,'' 
says a former Los Alamos worker with radiation dermatitis and apparent 
multiple chemical sensitivity. ``It's beyond his expertise, and that of 
most doctors, to apply the AMA Guidelines to occupational illnesses,'' 
he said.
    Although considerable occupational health expertise resides in 
NIOSH, the agency currently does not have a program of technical 
assistance to physicians who are developing EEOICPA claims. Applicable 
resources may also reside in ATSDR and NCEH.
    Communities around DOE facilities are often described as ``company 
towns.'' Physicians in private practice have little to gain--and much 
to lose--by lending their credibility to EEOICPA claims.
    Legislative and Administrative Reform. Intra- and extramural 
funding mechanisms should be created for CDC to provide technical 
assistance to claimants' physicians and claimants' organizations 
involved in the development of causation evidence for Part E and Part 
    Legislative Reform. Incentives should be created for graduates of 
occupational medicine residency programs to practice in rural and 
community clinics near DOE facilities. These incentives should be 
tenable only at clinics that are independent of the DOE site. One such 
incentive might be more flexible visas for foreign nationals who have 
completed OEM residencies in the United States.
                              Medical Care
    Because I am not trained in the clinical sciences, I do not try to 
assist claimants who are experiencing problems with the medical 
coverage provided by EEOICPA. However, I would be remiss if I did not 
draw the committee's attention to two cases of beneficiaries whose 
requests for home health care were grievously delayed by DOL. Requests 
from the family of George Hackworth (84-years-old) of Tennessee fell on 
deaf ears as he deteriorated with terminal colon cancer. DOL verbally 
denied the request for care and called the family on the day Mr. 
Hackworth died to inform them that the doctor's order for skilled 
nursing services was ``unnecessary.''
    Submitted for the record is a letter from Greg Austin of 
Professional Care Management. His company responded to the Hackworths' 
desperate pleas and did provide several days of care, while waiting for 
the authorization which never came from DOL. Mr. Austin's letter 
describes another cancer case in which the ``request for home health 
care lay pending authorization for 197 days with the DOL despite having 
all the required documentation to make a decision.''
    I want to publicly express the deep respect and gratitude many 
people concerned with nuclear worker issues feel for the tireless and 
often miraculous work of Richard Miller, previously of the Government 
Accountability Project. If every occupational health issue had a 
Richard Miller, ``That'd be alright.'' (As in the song by Alan 
Jackson). Those who work on Capitol Hill are fortunate to have him as a 
colleague now.

    Senator Bingaman. Thank you both for your excellent 
    Let me ask first, Dr. Melius, your suggestion here to speed 
things up--I need to understand better how this dose 
reconstruction issue is being dealt with. In situations where 
dose reconstruction is determined not to be feasible, in that 
circumstance NIOSH has decided to go ahead and lump these all 
together, is that the testimony we just heard?
    Dr. Melius. Yes, what you just heard was they are doing 
that, I believe, as I understood it----
    Senator Bingaman. You might push that button again.
    Dr. Melius. As I understand it, they are planning to do 
that with the first, I think, 70 cases that were left over from 
the first 5,000 claims. There's a number of them involving 
small facilities and other circumstances like that.
    They have a program where they can, on their own, initiate 
their own, essentially, start the process for adding people to 
the Special Exposure Cohort. That is, follows the same steps as 
the ones for the petition process, which is the more common one 
that usually involves the larger facilities, and so forth. But, 
for the smaller facilities and for smaller groups of workers 
within facilities, they have in the past--and apparently are 
going to try to continue to expand that program where they 
would initiate the SEC process, Special Exposure Cohort 
    Senator Bingaman. Is there any reason why they just can't, 
on their own, do that? I guess they've concluded that the law 
permits them to do it--is there something we need to be doing 
to urge them to do it?
    Dr. Melius. Definitely. I think that's the single-best way 
of speeding up this program. Which would be for NIOSH to take a 
much stronger stance and much stronger program to identify 
situations where they are unable to do the dose 
reconstructions--not to go through a very lengthy process in 
trying to, repeatedly trying to do dose reconstructions.
    One of the very frustrating things about the program is, 
people will submit a Special Exposure Cohort petition, an 
outside, a group from a facility. And that, NIOSH--in the 
process of doing your evaluation of that, will discover that 
there's serious shortcomings in their dose reconstruction 
process, the way they've been doing those reconstructions and 
basically, have to start all over again with the background 
technical work to develop a dose reconstruction program, 
process. Either the Advisory Board has to accept that on faith, 
they can do it, or you have to wait a process of a year or two 
while that's underway, having time for the Board and its 
contractor to evaluate that, and it just delays the whole 
process. If they would have a much more vigorous process to 
basically being willing to admit that it's just not going to be 
possible to do the dose reconstructions, that it isn't 
feasible, and it can't be done in a timely way.
    And, I think what Dr. Howard said--that if there were some 
real deadlines in the program, if you cannot complete a dose 
reconstruction within a set time period, or you cannot go 
through the process for the SEC petition evaluation in a set 
time period, then those people should automatically be added to 
the Special Exposure Cohort. If not, it's justice delayed a 
long time.
    With the Rocky Flats situation, it was a very long, lengthy 
process and one that was not set to my----
    Senator Bingaman. But you're saying they have that 
authority now, under the law, and it does not violate either 
the statute or their own regulations for them to do exactly 
    Dr. Melius. Correct.
    Senator Bingaman. OK.
    Dr. Melius. They need the incentive.
    Senator Bingaman. Dr. Silver, let me just ask you one 
question--could you give a little more expansive description of 
that CD that you held up there, as to what that contains and 
what the significance of it is, as you understand it?
    Mr. Silver. Yes. Dr. Melius referred to claimants who 
remember episodes that they were involved in during their 
working careers--spills, accidents, contamination. When they 
receive their dosimetry records, there were zeroes. So there's 
a discrepancy between the worker's very clear recollections and 
the data that's being used by NIOSH for the dose 
    At every Department of Energy and for that AEC facility, 
when spills, accidents, contamination episodes occurred, 
reports were often written. These are historical occurrence 
reports. Frequently nothing was recorded. In Los Alamos there's 
a vault of ``Official Use Only'' documents, we call it the 
historical occurrence reports collection, going back to 1945, 
and I did part of my dissertation on those reports, during the 
era of openness in the DOE complex.
    To my great dismay, there has not been a systematic effort 
to link those episodes to the job histories of people who are 
undergoing dose reconstructions. The Centers for Disease 
Control has an environmental dose reconstruction project going 
on at Los Alamos, they are looking at off-site doses. So, 
they've been through that open vault, and they've compiled a 
public database of reports that resulted in off-site releases, 
and they have made lists available of worker-only occurrences, 
that did not have off-site releases.
    So, this disc has the reports of releases that went off-
site, many of them have worker contamination involved, and 
lists of worker-only occurrences.
    So, I'm going to put into the hands of claimants and 
claimant advocates in New Mexico, many of them have already 
been through the dose reconstruction process, they have their 
dosimetry data that shows goose eggs, as they say, and they'll 
do a little comparison. And I strongly suspect that we'll find 
people who finally have documentation of the episodes they 
remember, and they'll bring it back to NIOSH, and hopefully 
have their dose reconstructions redone.
    Senator Bingaman. All right, thank you.
    Senator Alexander.
    Senator Alexander. Dr. Melius, on your suggestion, just so 
I understand, you say that the Department of Labor and NIOSH 
could decide today that a dose reconstruction wouldn't be able 
to be done within a certain period of time, we just 
automatically add that person to a cohort, is that correct?
    Dr. Melius. Correct. There's a process for doing that, it 
has to go up----
    Senator Alexander. It could do that.
    Dr. Melius. Yes.
    Senator Alexander. What would you suggest the timeframe 
should be? Six months? Four months? A year?
    Dr. Melius. I think there's no reason that the whole 
Special Exposure Cohort review process should last less than a 
year. That for the dose reconstruction, there's no reason dose 
reconstruction should take more than a year to complete.
    Senator Alexander. So, if they were to say, if dose 
reconstruction on this individual claim can't be done within a 
year, it moves over to this other category, that would be a 
suggestion you made.
    Dr. Melius. Correct.
    Senator Alexander. Do either of you know--businesses do 
customer satisfaction surveys, I believe the testimony was that 
the taxpayers have paid $3.2 billion to 35,000 people--those 
would be the successful claims. If those figures are correct, 
do you know whether there's ever been a survey done of those 
35,000 people to see whether they're happy with that? Or 
whether they're, as the ombudsman indicated, they may have been 
so frustrated in the process, and by the time they got the 
money, they weren't happy with it?
    Dr. Melius. As far as I know, there's been no survey and 
the NIOSH has been--I believe the Department of Labor has also 
been reluctant to do a survey because of concerns about claim 
adjudication and what might be found in a review of claims and 
so forth. But I think that kind of process could be done in a 
way that would be very helpful to the program, as well as 
would--I don't think they need to disturb the claims 
adjudication process.
    Senator Alexander. Typically those kinds of surveys are 
done, not necessarily to embarrass people, but to just simply 
to improve service and to learn things that one would want to 
    Dr. Silver, you made the suggestion that I wondered about, 
too, which is that a claim doesn't expire when a person dies, 
and the money could be paid to the estate. I can understand how 
that anxiety might contribute a great deal to the claimant and 
the family.
    And we heard the example of Herculean efforts to make sure 
that the money arrived just a few hours or a day before someone 
died. Have you done any research to know what effect that might 
have on claimants, if they knew that, even if they died, their 
claim might still be processed and money available to the 
estate, and what it might cost the taxpayer if that were done?
    Mr. Silver. I haven't approached it from a research 
standpoint. I view the work I do with claimant families as part 
of my public service, as a university-affiliated person. I 
think it's really a matter of trust. When there are so many 
delays and so many incidents where documents have been 
misplaced in the claimants file, there's a growing perception 
of the part of claimants and their families that--as a man in 
New Mexico told me, ``They're just waiting for us to die,'' 
under Part E, which does not allow the claim to pass to 
    Senator Alexander. But how many instances are there like 
that and do you know or have you made any estimate of how much 
it would cost the taxpayer if that recommendation were adopted?
    Mr. Silver. I don't have quantitative information, but I 
think we could probably find you a couple of cases to submit to 
the record of this hearing where that, in fact, occurred. But I 
think the larger issue is trust. People----
    Senator Alexander. Oh, I understand that. But, does this 
involve 10 people or 10,000 people? And is it a matter of 
billions of dollars or a few dollars? Or maybe you could tell 
me who could help me answer that question, if you can't?
    Mr. Silver. I think the advocacy groups for claimants will 
have a litany of cases where people are near-terminal death, or 
a handful of cases where it has actually occurred.
    Senator Alexander. Thank you.
    Dr. Melius, do you have anything to add to that?
    Dr. Melius. Yes, I would add to that, that I think there 
are a significant number. I'm not sure 10,000, but certainly 
because of the number of people with cancer that are processed 
through the program, both through Subtitle B and E. And, I 
think it's also important to remember that people's medical 
bills are not paid, only from the time that they file the 
claims. So, going back in time, we all know problems that 
people have with health insurance and the high cost of medical 
care. So it's been a significant financial burdens on many of 
these families, because of having to take care of the medical 
care, let alone, loss of income and so forth. So, I think it's 
very worthwhile to look into that recommendation.
    Senator Alexander. Thank you.
    Senator Bingaman. Senator Murray.
    Senator Murray. Yes.
    Dr. Melius, I would assume that even though each SEC 
petition is unique, that the Board's review process is very 
similar. Can you, based on your experience as an Advisory Board 
member, explain that process to us?
    Dr. Melius. Yes. The process starts when the Board receives 
the evaluation from NIOSH.
    The first process, the petition is reviewed by NIOSH. If 
it's accepted, they then do their evaluation, normally within 
180 days of receiving it. That evaluation then goes to the 
Board. The Board, through our contractor, outside contractor, 
then has that contractor review NIOSH's evaluation, identify 
issues, technical issues that need further review and follow 
up. And then we'll make recommendations to the Board, 
technically, should this be accepted or not, or whatever.
    Particularly in some of the larger sites, such as Hanford 
and Rocky Flats and so forth that are so complex, that process 
will identify a number of different technical issues and that 
process can go back and forth for quite a while, because if the 
Board's contractor finds a problem, a technical problem, NIOSH 
then responds. And that may be by starting all over again or 
developing a new method for doing those dose reconstructions.
    That's currently what's underway with the Hanford site.
    Senator Murray. Right. Can you tell me why the Board chose 
to investigate further before making a decision on the SEC 
petition for Hanford?
    Dr. Melius. Yes. I believe, the reasons for that were, one, 
the Board had received that report, the most recent one, just 
shortly before our last meeting. So there had not been adequate 
    Second, to review it, based on some of the work that we had 
already done at the Board--and I should add that I'm the chair 
of the work group of the Board that's reviewing that.
    Senator Murray. Right.
    Dr. Melius. We also thought that we needed to, we would not 
be accepting of that recommendation from NIOSH on its face 
value, particularly that their recommendation, even though it 
recommended parts, some groups be added to the Special Exposure 
Cohort, a large part of that, the rest of the petition would 
not be by NIOSH's recommendation. And we thought that that part 
of it needed much further scrutiny, based on what we already 
knew about problems with some of the methods that NIOSH was 
proposing that they use.
    What we're in the process of now, is essentially trying to 
evaluate whether we can stage the process for reviewing the 
NIOSH's evaluation report, so that the parts where they have 
recommended that a group be added to the Special Exposure 
Cohort, can be dealt with first, and obviously in a more timely 
fashion. And then, the other parts where they have made the 
recommendation that the petition not be granted, we look at in 
more detail and that will inevitably take a longer period of 
    Senator Murray. Can you share with us your opinion about 
some of the unique conditions at Hanford that the Advisory 
Board ought to be considering as they move forward?
    Dr. Melius. Yes. I think there are several things. One is 
the complexity of the site and what we've heard from people 
that have worked out there about conditions, particularly 
conditions where people were exposed to very high amounts of 
radiation and were not being monitored at the time.
    We've heard people describe to us that they were given 30 
seconds to go in and do a job, and if they didn't have that job 
done in 30 seconds, they had to leave the area because the 
radiation was so great. And they were not monitored during that 
process. And so, getting that information is not possible.
    Second, the Board has, in our review of information from 
the Hanford site, serious questions about the adequacy of the 
records in the past, for the monitoring of neutron exposures, 
which is a significant part of the exposure for people at that 
facility. And frankly, NIOSH has questions about that also, 
because they're re-looking at their methods for doing dose 
reconstructions, based on the available records, particularly 
on neutron exposures.
    Senator Murray. And if you don't have the records, then?--
    Dr. Melius. Then we recommend that it be added to the 
Special Exposure Cohort, that NIOSH's evaluation would be 
    Senator Murray. OK. All right.
    Thank you very much, Mr. Chairman.
    Senator Bingaman. Senator Allard.
    Senator Allard. Mr. Chairman, thank you.
    In October--I want to direct this to Dr. Melius--the Rocky 
Mountain News, a newspaper in Denver, wrote an article where 
they talked about an internal audit by the White House Advisory 
Board on Radiation Workers' Health's auditor. This included 
listening to what they call a close-out session. Apparently 
this is part of the routine, part of the claims process.
    According to this article, two out of three claims that 
were audited, the information was not considered in the 
process. In fact, they pointed out to one case, where a 
decision was already made before that part of the interview was 
    I've always been one to advocate that we use science and 
that we follow the process routinely. And I'm concerned that it 
appears, that maybe in these cases, it may not have been 
followed. Do you view this as a problem that's pretty pervasive 
within the interview, and within the claims process, or is it 
    Dr. Melius. Senator, yes. I believe that that is a 
pervasive problem. It has to do with, one, the nature of the 
initial interview and the way that that's conducted. The lack 
of asking questions about specific facilities and processes at 
facilities. It also continues throughout the process, including 
the close-out interview process that you referred to. I think 
it's a serious shortcoming and I think it needs to be 
addressed. In my testimony, I've included some recommendations, 
both for improving the interview process, as well as setting up 
a quality control process to make sure that people are listened 
    And in the case of the close-out interview, part of the 
problem is determining whether or not the information was from 
the interviewer, and was then properly communicated to the 
person doing the dose reconstruction. Those are different 
people. And whether there's adequate follow up. And something 
happened in that process, and the Board is still--and our 
contractor is still in the process of reviewing what that is, 
trying to determine how pervasive that particular issue is.
    But I tend to think it's very serious. It's something we 
hear repeatedly, claimants complaining about their information, 
and all the problems in the DOE facilities with missing 
records, and lack of recording of exposures, and so forth. It's 
very, very important that claimants and their survivors have 
the opportunity to put this information forward and that it be 
evaluated and followed up on.
    Senator Allard. Thank you for your comments. We'll closely 
review your testimony and see in detail what you've 
recommended. We have a vote that's just up. I'd just like to 
make a closing comment that I understand the Advisory Board's 
set up to take up this issue in their December meeting. I 
encourage further discussion and review of this issue by the 
Presidential Advisory Board and other parties involved.
    Thank you.
    Senator Bingaman. Thank you both for your testimony. I 
think it's been useful. We got some good recommendations from 
you that we can try to follow up on.
    So, that will conclude our hearing today.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                   Prepared Statement of Senator Enzi

    Thank you for holding this important hearing, Mr. Chairman. 
I want to welcome all of the witnesses today, most especially 
Senator Reid. We very much appreciate everyone's time and 
willingness to participate in today's hearing.
    The Energy Employees Occupational Injury Compensation 
Program, known as EEOICPA, was created 7 years ago through a 
bipartisan effort here in the Senate. The program's mission is 
to provide compensation for certain nuclear workers who have 
become ill as a result of radiation and other toxic 
occupational exposures while working in federally funded 
nuclear programs. EEOICPA provides lump-sum compensation and 
health benefits to eligible employees as well as lump-sum 
compensation to certain survivors if the worker is deceased.
    It is entirely appropriate for this committee to conduct 
oversight of the EEOICPA program's administration from the 
perspective of the claimant. We need to know if the program is 
working as Congress intended. As most of us know, EEOICPA 
duties are distributed among three separate cabinet 
Departments--Energy, Labor, and Health and Human Services--and 
also involve an independent Board and an Ombudsman. This 
complex administration has required some readjustment over the 
years as it became apparent that claimants were not all as 
well-served as possible. Like the original legislation, the 
changes made in 2004 were again accomplished through bipartisan 
efforts. That approach served the beneficiaries of the 
legislation well, and will hopefully serve as a guide for any 
future actions.
    How well is EEOICPA working? Certainly, improvements have 
been made, and there is no question that many Americans have 
benefited. Thirty-four thousand four hundred and nine 
individuals have received over $3 billion in payments under 
EEOICPA to date. Of those, about 25,000 are actual employees, 
and the rest are survivors. In my home State of Wyoming, more 
than $6.5 million has been distributed to just over 100 
    Is the program sufficiently claimant friendly? There are 
obviously many ways to measure an answer. The scientists who do 
the very technical work of determining what each employee may 
have been exposed to have recommended compensation for a far 
greater percentage of applicants than was initially projected. 
Over the program's short existence there has been a great deal 
of valid concern about the backlog of claims bottle-necked at a 
number of different administrative junctions and agencies. As 
I'm sure our first panel of witnesses will attest, that backlog 
has been greatly reduced and I hope we will congratulate them 
for that.
    Additionally, the Department of Labor has established 11 
Resource Centers to assist workers and their families apply for 
benefits under the Program. The Department has strategically 
located those Resource centers in areas likely to have a large 
number of potential claimants. The centers also assist 
potential claimants over the phone so geography is not an 
impediment. Four EEOCIPA claim processing district offices are 
also geographically distributed across the country to provide 
claimants direct access to their claim processors. The 
Department of Labor has also taken its show on the road. The 
Division of Energy Employee Occupational Illness Compensation 
[``DEEOIC''] has held over 150 Town Hall Meetings, and 
sponsored some 27 Traveling Resource Centers to explain the 
program and provide filing information and assistance. DEEOIC 
has also hosted over 80 site exposure matrix roundtables 
designed as a resource for claimants to connect any 
occupational exposures to disease experience.
    Finally, the EEOICPA program has an independent Ombudsman 
who provides assistance to claimants under the program's Part 
E, which targets contractor employees. The EEOICPA Ombudsman 
has also reached out to provide assistance to claimants by 
holding a half dozen special Town Hall Meetings to assist 
filers. Earlier this month, the Senate passed legislation 
extending the EEOICPA Ombudsman authorization another 5 years 
to 2012.
    Today we will be able to look beyond the numbers such as 
the number of claimants served, the percentages compensated, 
and the amount of assistance and resources available. I look 
forward to hearing more from today's witnesses about the 
program's ``claimant friendliness.'' If there are problems, 
let's get them out in the open and start discussing solutions.

                  Prepard Statement of Senator Harkin

    Mr. Chairman, I thank Senator Bingaman for chairing this 
critical hearing, and salute him for his long steadfast 
dedication to this issue. This has been a long hard road for 
all of us involved, but a longer and harder road for these 
workers, who by definition are very sick and have to fight not 
just the illnesses they contracted in service to our country 
but a complex and sometimes very confusing program.
    My involvement with compensating sick workers began with a 
letter I received from a sick worker, Bob Anderson, back in 
1997. As a part of a community college course, he was supposed 
to write a letter to a Member of Congress. He decided to write 
about something very close to his heart--I am sick, and I think 
it is because I used to work for a contractor here in Iowa that 
manufactured nuclear weapons. At that time, very few people 
knew the Iowa Army Ammunition Plant was ever even involved in 
such manufacturing.
    Over the years, we worked to get the veil of secrecy 
lifted. We worked to find lost records and create a program to 
compensate these sick workers. Two years ago, NIOSH approved 
the designation of a Special Exposure Cohort for many of these 
sick workers. It is hard to describe the feeling of winning 
such a long, hard-fought victory.
    To date, over $2 billion in claims and medical expenses 
have been paid under part B, and thanks in large part to the 
program amendments in 2004, almost $850 million has been paid 
under Part E. But far more claims have been denied or are still 
waiting for approval due to lack of information.
    We have a long way to go. This is an incredibly complicated 
issue, involving difficult scientific analysis of dose 
reconstruction, patterns of illness, even material questions of 
employment histories. There is no question in my mind that the 
Special Exposure Cohort designation process takes too long or 
that it is too difficult. Claimants have to deal with a very 
difficult process, marked by complicated paperwork, burdensome 
burden of proof requirements, and problems contacting the right 
agency and getting answers that are understandable. There is a 
lack of uniformity in the application of the law with regard to 
proof of employment and proof of disease.
    At the outset of this hearing, I would say to the involved 
agencies that in helping us to compensate these sick workers 
that we remain focused on the best available science and 
exposure information. The cost of doing what we need to do to 
be fair to these folks is going to be significant. But, you 
cannot and should never put a price on justice. We, as a 
society, owe these workers for giving up their health and 
sometimes their lives to do what was asked of them by their 
    I think there are a number of things that Congress can do 
to improve communication between agencies, make the process 
more transparent, improve the SEC process, and make it easier 
for claimants to navigate the process. I hope to work together 
with my colleagues to do so in the 110th Congress, and look 
forward to the information and cooperation that this panel has 
to offer to us in that process.

                 Prepared Statement of Senator Clinton

    Mr. Chairman, thank you for allowing me to submit testimony 
on this important matter.
    When Congress passed EEOICPA in 2000 and then amended the 
statute in 2004, the law promised timely compensation to former 
workers in the Nation's nuclear weapons complex. Unfortunately, 
the program has been implemented in a way that falls far short 
of this goal. One of the major failings of the program has been 
the dose reconstruction process, which has been too reliant on 
inadequate information. I have seen this in detail at the 
Bethlehem Steel site in Lackawanna, NY.
    Like workers at many other sites around New York and our 
country, Bethlehem Steel employees were essential to our cold 
war effort. These people literally built our nuclear arsenal in 
the decades after World War II and helped us eventually to win 
the cold war. In the late 1940s and early 1950s, the government 
contracted with Bethlehem Steel, which is in Buffalo, to roll 
uranium at their plant. But the workers weren't told what they 
were working with. They weren't provided with safety equipment 
to shield them from radiation. They weren't monitored to 
determine how much radiation they were being exposed to. But if 
you talk to the workers who I've spent time talking to, or to 
their spouses, or their children of workers who have passed on, 
you know that this was hot, dirty work. Uranium dust was thick 
in the air. They breathed it. They coated their hands with it. 
They would sit on areas in the plant to eat lunch and put their 
lunch down and the uranium dust would be on their sandwiches. 
They ingested it. It covered their work clothes.
    So it's not surprising that many of them got cancer. And 
for decades they petitioned their government for help and have 
been denied. Congress finally did the right thing in 2000 with 
the act that you are examining in this hearing today. This was 
a landmark law and it was such in the tradition of our country 
to acknowledge the wrong that the government had done, and 
promise timely compensation to workers and their survivors.
    As workers and their survivors brought forward information, 
it became clear that there were great disparities between the 
site profile that NIOSH had developed and actual conditions at 
the plant. As a result, I became convinced that reconstructing 
doses for Bethlehem Steel workers is an impossible task. It 
shouldn't be surprising. After all, we're talking about work 
that occurred in secret 50 years ago and before modern 
radiation monitoring and safety practices had been developed.
    When Congress passed the law in 2000, it recognized that 
reconstructing doses would be impossible in many cases, and 
that's why the special cohort process was included in the law. 
The statute to my reading is pretty clear. It says that if the 
government doesn't have the information to reconstruct doses 
then workers should be given the benefit of the doubt and their 
claims should be paid. More precisely it provides for classes 
of workers to be added to a special exposure cohort if it's not 
feasible to estimate the radiation doses with sufficient 
accuracy, and there is reasonable likelihood that the radiation 
dose may have endangered their health. I don't think we could 
have a clearer case than Bethlehem Steel, where not a single 
worker wore a radiation badge; where the only radiation 
measurements we have are a handful of air samples; where the 
workers rolled uranium and where many of them contracted 
radiation-related cancers.
    Unfortunately, this Administration has implemented EEOICPA 
in a way that refuses to give workers the benefit of the doubt 
in cases where the available data makes dose reconstruction 
impossible or highly unreliable. The Bethlehem Steel workers 
have a petition pending with the Advisory Board, and I have 
urged them to approve it. But I believe Congress needs to amend 
the Special Exposure Cohort process in light of the way the law 
is being implemented. To that end, I have introduced 
legislation with Senator Schumer, and I urge the committee to 
consider this legislation as you move forward after this 

                  Prepared Statement of Senator Obama

    Senators Kennedy and Enzi, let me thank and commend you for 
holding this very important hearing to assess whether the men 
and women who developed our Nation's nuclear weapons program 
are being treated fairly by the Federal Government as they 
apply for benefits under the Energy Employees Occupational 
Illness Compensation Program Act (EEOICPA).
    As you are well aware, there remain many questions as to 
whether those Americans who qualify for benefits under EEOICPA 
are having their claims processed fairly and in a timely 
    I first began hearing about the plight of Illinois' former 
nuclear weapons workers shortly after taking office in 2005. I 
have since met with many workers and their families, and my 
office has written dozens of letters to, and held numerous 
meetings with, the agencies responsible for implementation of 
this program. We have sought to clarify agency processes and 
decisions, encourage program changes to benefit claimants, and 
secure thousands of pages of classified and previously 
unreleased documents in an effort to bring greater 
understanding to the often secret and undocumented work these 
claimants performed.
    To date, hundreds of Illinois' former nuclear weapons 
workers have received compensation under EEOICPA, although my 
advocacy has been for the most part limited to helping workers 
of the Dow Chemical Corporation (Madison), General Steel 
Industries (Granite City), Blockson Chemical (Joliet) and 
Allied Chemical (Metropolis, IL) plants, which have the 
majority of claims among Illinois' 29 EEOICPA-covered sites.
    My advocacy for these nuclear weapons workers has at times 
required me to give voice to the frustrations claimants have 
had with the agencies who administer EEOICPA, including Health 
and Human Services (HHS), the National Institute for 
Occupational Safety and Health (NIOSH), Department of Labor 
(DOL), and the Department of Energy (DOE). Although I recognize 
the very difficult and complex task these agencies have, 
improvements are necessary to EEOICPA because legitimate 
questions have been raised about the program's fairness and 
    For the most part, the frustrations expressed to me by 
claimants and their families are related to the timeliness with 
which claims are processed and the fact that many do not have 
confidence in the scientific decisions on which their claims 
are based.
    With regard to timeliness, dozens, if not hundreds, of 
workers at the former Dow Chemical Plant in Madison, IL still 
have not received a final decision on their claim. Most of the 
claimants began filing their claims in 2001, nearly 7 years 
ago. Currently, most of these claims are still undergoing the 
process of dose reconstruction, as performed by NIOSH.
    Six years is far too long to wait for a claim to be decided 
in any compensation program. In this case, when we are dealing 
with the men and women who performed the dangerous work 
required to develop our Nation's nuclear weapons program and 
who now are elderly and sick, getting decisions made in a 
reasonable timeframe is critical to this compensation program's 
    I encourage the committee to explore legislation which 
would impose a statutory deadline for when a final decision 
must be rendered on each claim. For example, the committee 
should explore the feasibility of imposing a 12-month time 
limit on the dose reconstruction process. Under this time 
limit, the Department of Labor would have 90 days to forward a 
claim to NIOSH, which would then have 365 days to complete a 
dose reconstruction and return the claim to the DOL, which 
would then have 90 days to review NIOSH's recommendation and 
provide a final decision to the claimant.
    Under such a time constraint, the entire EEOICPA claims 
process would be completed within 18 months. If the Department 
of Labor and NIOSH could not process a claim within this time 
period, the claim should be paid immediately. In those cases 
where a delay is caused by the claimant, usually because they 
are trying to obtain medical records or verification of their 
employment at an EEOICPA-covered facility, the claim should be 
re-opened and the time limit extended as needed.
    With respect to concerns that final claims decisions have 
not been made through a process in which claimants can have 
confidence, I offer the following recommendations:

    1. The committee should investigate a legislative remedy 
which will provide compensation to claimants on either a 
sliding scale based on Probability of Causation (POC) scores or 
based on years of employment.
    As of September 27, 2007, 11,911 claims had a completed 
dose reconstruction (DR) with a POC less than 50 percent, with 
4,427 claims having a POC between 30 percent and 49 percent. 
Given the numerous questions that exist about how the dose 
reconstruction process is conducted--including questions about 
the weight DOL and NIOSH give to worker testimony and the 
recent finding that DOL claims examiners often ignore worker 
testimony provided in DOL worker interviews--the POC scores 
assigned to claims should be viewed with a healthy amount of 
    Congress could act to compensate claims as a percentage of 
the POC score. For example, claimants with a score of 42 
percent would receive 42 percent of $150,000. As of September 
27, 2007, 1,875 cases had a POC score between 40 and 49 
percent. It is difficult to understand from a scientific basis 
how one claimant with a POC score of 50.1 percent deserves 
$150,000 but a claimant with a score of 49 percent deserves no 
compensation at all. As Advisory Board on Radiation and Worker 
Health member and occupational pulmonary physician Dr. James 
Lockey noted in a June 4, 2007 letter to me:

          ``This all or nothing dividing line will continue to 
        be a source of contention and should be revisited. The 
        process should not put workers in conflict with each 
        other or with the various Federal agencies and Congress 
        who are trying to be responsive.''

    Congress could also examine whether compensating workers 
based on years of employment would be a more credible 
compensation method. As Dr. Lockey explains:

          ``It is my suggestion that a simpler and less 
        contentious award compensation process for nuclear 
        production workers be based on the years employed in 
        the nuclear production industry within potential 
        radiation exposure job tasks. The monetary award should 
        be based on cumulative years worked and executed in a 
        linear fashion.''

    2. The Congress should act to address the lack of 
transparency with which claimant decisions are made. For 
example, any information used to deny a claim or an SEC 
petition should be made automatically available to the claimant 
and or petitioner. Additionally, if the final decision about 
whether a claim should be approved or denied rests on 
classified information that cannot be made available to the 
claimant, there should be a presumption in favor of approving 
the claim.
    After recently listening in on the ``close-out'' interviews 
of claimants as conducted by Department of Labor personnel, the 
Advisory Board auditor, Sanford, Cohen and Associates (SC&A), 
issued a report which says in part that auditors found 
``potential for inconsistency and arbitrariness in how concerns 
are researched, communicated and resolved.'' This finding 
supports concerns I have had for some time that testimony given 
by workers as to the conditions they worked under, the 
chemicals, metals or other substances they worked with, 
processes used, or safety measures implemented, is not factored 
into decisions by Labor or NIOSH staff in a systematic and 
transparent way.
    3. Numerous concerns still exist about the Advisory Board 
on Radiation and Worker Health, including the balance of member 
perspectives on the Board. The legislation establishing EEOICPA 
addresses this issue:

          ``The President shall make appointments to the Board 
        in consultation with organizations with expertise on 
        worker issues in order to ensure that the membership of 
        the Board reflects a balance of scientific, medical and 
        worker perspectives.''

    Unfortunately, the President has ignored congressional 
intent on this subject, and questions remain as to whether or 
not the board is stacked against claimants. Currently, there 
are 12 members of the Advisory Board; six members have a 
science perspective, four maintain a worker perspective and 
only two represent a medical perspective.
    An October 2007 GAO report entitled ``Energy Employees 
Compensation--Actions to Promote Contract Oversight, 
Transparency of Labor's Involvement, and Independence of 
Advisory Board Could Strengthen Program,'' notes in part:

          The process by which board members are appointed is 
        also not clearly established or uniform, presenting a 
        challenge to the advisory board's independence . . . 
        neither the act nor the executive order implementing 
        the act specifies criteria for nominating and selecting 
        board members . . . members of Congress and the 
        claimant community have raised concerns about potential 
        influence by Labor and NIOSH to reduce the number of 
        worker representatives in order to shape the outcome of 
        the board's decisions on SEC petitions. These concerns 
        were precipitated by internal Labor correspondence in 
        2005 that characterized the advisory board as being 
        essentially a worker advocacy organization and noted 
        that a change in membership would be critical to 
        counteracting the pressure to add more classes to the 
    I urge the committee to consider potential legislative 
remedies to correct the imbalance on the Advisory Board and the 
resulting perception that this imbalance affects the fairness 
of the Board's decisions.
    In summary, I applaud the committee for holding a hearing 
on this important issue and believe that additional hearings 
would be useful to determine what steps we can take in the 
Congress to improve the efficiency, transparency, and 
credibility of EEOICPA. Thank you.

                 Prepared Statement of Senator Schumer

    Thank you for the opportunity to address this issue. I 
appreciate the opportunity to share my views on the 
administration of EEOICPA. This is an incredibly important 
program, and I am disappointed that for many claimants it has 
not lived up to the mandate which Congress gave the 
Administration: that all claims must be decided in a claimant-
friendly manner. I am hopeful there will be changes that will 
make the administration of this program more efficient, timely, 
and just.
    The Energy Employees Occupational Illness Compensation 
Program Act (EEOICPA) was created by Congress to compensate 
cold war-era laborers who became sick as a result of their work 
at nuclear production facilities directly managed or financed 
by the Federal Government. This law was designed to bring 
justice to these unsung heroes and find the swiftest, fairest 
way to speed compensation to victims of radiation exposure.
    The administration of this program has a clear record--it 
is not being administered in a claimant-friendly manner. It's 
time that this administration step up to the plate and bring 
these cold war heroes the compensation they deserve.
    I have spoken with and received correspondence from many 
former workers and the spouses and children of former workers 
who were employed at such facilities all across New York State. 
They have told me heartbreaking stories of debilitating 
cancers, and have expressed frustration over the program's 
seemingly endless bureaucracy, and delays. In many cases, the 
application process has lasted 5, 6, even 7 years--often beyond 
the litespans of the claimants and their spouses. This 
excessive review period and bureaucratic process confound the 
law's purpose and its spirit.
    The administration spends unwarranted amounts of time 
reviewing applications and arriving at decisions on site 
profiles. Dose reconstructions are frequently based on faulty 
or insufficient data and special exposure cohort status claims 
are locked in seemingly endless review. Sick and dying workers 
are denied their due compensation because of these problems in 
calculation and administration.
    This program is delaying justice for an increasingly aging 
population of cold war heroes. It mires decent people in a 
bureaucracy that is insensitive to the pain and hardship these 
claimants have already suffered for their country.
    I have several kind suggestions for putting the program 
back on track.
    First, expedite dose reconstructions and bring answers to 
the families of cold war heroes. so compensation can be 
delivered with all due speed. The lengthy waits for 
compensation are unacceptable, particularly as aging claimants 
and their spouses are, sadly, already beginning to pass away. 
In these cases, and particularly under Part E of the EEOICPA, 
justice deferred is justice never conferred. Delay and 
bureaucracy are enemies of a claimant-friendly process, and 
more efforts must be made to streamline the review process and 
speed compensation.
    Second, promptly expand the number of classes to the 
Special Exposure Cohort (SEC). This designation was created by 
Congress because of deficiencies in data for sites where 
records are insufficient to document the full breadth of 
radiation exposure workers have experienced. Ill workers and 
their hopeful families are being denied compensation for their 
sacrifices not because they aren't deserving of justice, but 
because the administration of the program is inaccurately 
assessing the probability of the government's responsibility 
for their diseases. Since there is no way to verify whether 
comparisons between similar plant sites are accurate, there is 
no way to determine whether proxy data is claimant-friendly or 
not, and therefore cannot meet the legal requirement under 
EEOICPA that the dose reconstructions are also claimant-
friendly. It is the clear intent of the EEOICPA to permit 
Special Exposure Cohort (SEC) status in these situations, and 
all evidence points to administration practices that deny and 
delay the determination of this status at sites where the lack 
of evidence should give every benefit of the doubt to claimants 
who worked at these sites. That tendency should be reversed 
immediately so justice can be assured.
    Every effort must be made by the administration to pare 
down bureaucratic delays and missteps that are denying 
compensation to our cold war heroes. These men and women need 
their government's assistance, and their families need to be 
assured that their country acknowledges their sacrifices and is 
deeply grateful to them. Thank you for your consideration.

                 Prepared Statement of Senator Salazar

    Thank you, Chairman Kennedy and Ranking Member Enzi, for 
holding this hearing today. The issue of whether the Energy 
Employee Occupational Injury Compensation Program (EEOICP) is 
claimant friendly is critically important and timely. Reports 
from the Office of the Ombudsman for the EEOICP Part E, and 
past congressional hearings have revealed considerable claimant 
dissatisfaction with the Program and a concerted effort to deny 
compensation to many workers. I hope that the evidence 
collected through this hearing will inspire swift congressional 
action to grant compensation to our cold war heroes and enact 
necessary Program reforms. Although I am not a member of this 
committee, I look forward to working with you to ensure that 
these goals are met.
    The Energy Employee Occupational Injury Compensation 
Program Act (EEIOCPA) was enacted to compensate American 
workers (and certain survivors) who put their health and life 
on the line to serve our Nation during the cold war. These 
brave men and women worked in laboratories and factories in the 
United States building nuclear weapons that led to the fall of 
the former Soviet Union. Sadly, many of these cold war Veterans 
were exposed to toxic and carcinogenic properties that made 
them very sick.
    But while thousands of workers are successfully applying 
and receiving benefits, too many face incredible obstacles as 
they try to demonstrate that they qualify for benefits. Some 
workers may not be able to prove that their cancers were caused 
by their work in nuclear weapons facilities, whether due to the 
lack of records or other problems that make it difficult or 
impossible to determine the dose of radiation they received. To 
protect these workers, Congress designated a Special Exposure 
Cohort (SEC), a provision in the EEOICPA to enable workers to 
receive benefits if they suffered from one of the specified 
cancers known to be linked to radiation exposure.
    From 1951 to 1988, approximately 23,000 individuals worked 
at the Rocky Flats plant located 16 miles Northwest of Denver, 
Colorado. Throughout the years, many Rocky Flats workers 
processed plutonium, one of the most dangerous substances that 
exists, and crafted it into triggers for atomic weapons. 
Through five decades, Rocky Flats workers were exposed to toxic 
and carcinogenic properties, including beryllium, radiation and 
other hazards.
    On February 15, 2005, Rocky Flats workers filed a SEC 
petition to receive compensation. After 3 years of patiently 
and diligently making their case to the Federal Government, the 
Advisory Board on Radiation and Worker Health made its 
recommendation on June 12, 2007. The Board recommended SEC 
inclusion for only those plutonium workers employed at Rocky 
Flats from January 1, 1959 to December 31, 1966. In other 
words, the Board voted (6 to 4) to exclude from the SEC all 
pre-1966 workers other than plutonium workers and all post-1966 
Rocky Flats workers. This should limit the number of Rocky 
Flats workers who receive benefits to approximately 2,000 to 
3,000 workers. Secretary Leavitt recently approved the Board's 
    The men and women who worked at Rocky Flats served a 
critical role in a program deemed essential to our national 
security by a succession of Presidents and Congresses. Several 
of these workers have died without receiving the healthcare or 
compensation they deserve. In fact, a combination of missing 
records and bureaucratic red tape has prevented many Rocky 
Flats workers from accessing benefits. Our government failed 
these workers when they maintained shoddy, inaccurate, and 
incomplete records.
    Furthermore, after years of research and review, many 
questions remain about the reliability of data and the ability 
of National Institute of Occupational Safety and Health to 
accurately measure exposure to toxic materials. On March 1, 
2007, I introduced S. 729, The Rocky Flats Special Exposure 
Cohort Act. S. 729 would extend SEC status to workers employed 
by the Department of Energy or its contractors at Rocky Flats 
according to the stringent requirements of the act.
    With the SEC designation, a Rocky Flats worker suffering 
from 1 of the 22 listed cancers can receive benefits despite 
the inadequate records maintained by the Department of Energy 
and its contractors. I urge this Congress to act now to stop 
impeding Rocky Flats workers' ability to receive the 
compensation they deserve. The cold war veterans of Rocky Flats 
have waited long enough.
    In conclusion, I am eager to work with members of this 
committee to develop and implement much needed reforms to the 
EEOICP. I also urge the Senate to swiftly take up and pass S. 
729 to grant compensation to Rocky Flats who put their health 
and life on the line for the Nation.

            Prepared Statement of Representative Mark Udall

    Chairman Kennedy and members of the committee, thank you 
for allowing me to submit this statement for the record of this 
important oversight hearing.
    The Energy Employees Occupational Injury Compensation 
Program Act (EEOICPA) is very important for Colorado because 
thousands of Coloradans worked at Rocky Flats--a nuclear-
weapons site near Denver that has now been cleaned up and 
closed--as well as some other sites covered by the law. Many of 
them developed beryllium disease, cancer, or other ailments 
from being exposed to beryllium, radiation, or other hazards.
    Since coming to Congress in 1999, I have worked with our 
colleagues on both sides of the aisle and both ends of the 
Capitol to enact a compensation program for them and others 
with similar problems from their work at other sites in the 
nuclear-weapons complex.
    After the Clinton administration, led by Secretary of 
Energy Bill Richardson, reversed the position of previous 
Administrations--that claims for compensation were to be 
resisted--and asked Congress to establish a compensation 
program, a number of us introduced legislation to accomplish 
that objective, and was among those who strongly supported the 
EEOICPA provisions that were finally enacted into law.
    However, shortly thereafter a new Administration--that of 
our current President--came into office. And, regrettably, it 
has not been as strong an advocate of the program as its 
    To put it bluntly, the Bush administration inherited this 
program, and since then they have both mismanaged it and tried 
to undermine it.
    The part run by the Department of Energy (DOE) was so 
mismanaged that a Republican-controlled Congress took it away 
from DOE and assigned it to the Labor Department (which already 
ran the rest of the program) in 2004. Before that transfer, DOE 
had spent over $90 million for administrative costs in 4 years, 
but only about 5 percent of the over 25,000 claims filed had 
been completely processed.
    In connection with that transfer, to make the program more 
claimant-friendly, the Defense Authorization Act of 2005 
created the Office of the Ombudsman for a 3-year period to 
provide information to claimants and potential claimants on the 
benefits available under the new Part E of the Act.
    Under that legislation, the independent Ombudsman was 
assigned four primary responsibilities:

     to provide information to claimants, potential 
claimants, and other interested parties on the benefits 
available under the new Part E and the requirements and 
procedures applicable to the provision of those benefits;
     to make recommendations to the Secretary of Labor 
regarding the location of resource centers across the country, 
which claimants can contact for assistance in the acceptance 
and development of Part E claims;
     to issue an Annual Report to Congress detailing 
the number and type of complaints, grievances and requests for 
assistance received by the Office of the Ombudsman that year, 
and an assessment of the most common difficulties encountered 
by claimants and potential claimants during that year; and
     to make recommendations for improving the 
administration of Part E of EEOICPA.

    The authorization for the Ombudsman's office expired on 
October 1, the start of the current fiscal year. During the 
markup of the Defense Authorization bill for fiscal year 2009 
in the House's Armed Services Committee, I won adoption of an 
amendment to extend the office and expand its authority so it 
can more fully serve claimants. And during its floor debate, 
the Senate adopted an amendment by Senator Levin, on behalf of 
Senator Kennedy, to extend the Ombudsman's authority.
    Along with other members of the Armed Services Committee, I 
expect to be a conferee on the authorization bill, and will 
work to have the conference report provide for keeping the 
Ombudsman in business.
    And, with Representative Tom Udall of New Mexico and 
several others--including Representatives Slaughter of New 
York, Wamp of Tennessee, Whitfield of Kentucky, and Hastings of 
Washington--I am sponsoring legislation (H.R. 2255) to make the 
office permanent and to expand its duties.
    Under our bill, the Ombudsman would be directed:

    1. To assist individuals in making claims;
    2. To provide information on the benefits available and on 
the requirements and procedures applicable to the provision of 
such benefits;
    3. To act as an advocate in appropriate instances, as 
determined by the Ombudsman;
    4. To make recommendations to the Secretary of Labor 
regarding the location of resource centers for the acceptance 
and development of claims for benefits; and
    5. To carry out such other duties as the Secretary of Labor 
shall specify.

    The bill would also authorize the Ombudsman to inform 
Congress regarding changes in administrative practices mitigate 
difficulties encountered by claimants and potential legislative 
changes which may be appropriate to mitigate such difficulties. 
And it would authorize the Ombudsman to hire or contract for 
supplies or services, including the services of experts in 
relevant disciplines, including health physics, medicine, 
industrial hygiene, and toxicology, as the Ombudsman may 
consider appropriate.
    However, as I mentioned, right now the Ombudsman's office 
is somewhat in legal limbo because its formal authorization has 
    I understand the Labor Department is prepared to make 
arrangements to enable it to continue its work, at least for a 
while, while Congress considers the question of its future 
status. I hope that happens, and I hope that the Labor 
Department and the rest of the Administration will work with us 
to assure its continuation with additional authority. But I am 
somewhat wary, because of past experiences.
    I say that because there is strong evidence to suggest that 
not very long ago the Labor Department led an effort to distort 
an important part of the overall EEOICPA program--the provision 
for adding additional workers to the Special Exposure Cohort 
through an unbiased, science-based review of petitions.
    Fortunately, that behind-the-scenes effort was exposed when 
the press, and then the House's Judiciary Committee, came into 
possession of an OMB ``passback'' document that revealed what 
was afoot.
    As I read it, the document showed that the Administration 
seemed ready to put concern about dollars above concern for 
sick cold war veterans.
    And that was not just my interpretation. Representative 
Hostettler, the Republican from Indiana who chaired the 
Judiciary Committee's subcommittee that looked into the matter, 
said that the OMB document ``sets out a plan to . . . base SEC 
status approvals on budget concerns rather than the scientific 
basis mandated by law.'' In my opinion, he hit the nail right 
on the head.
    Since that public rebuke, the Administration has repeatedly 
stated that it has abandoned the idea of cost-containment as an 
approach to implementing the law.
    I hope that is true, but I have to say that I remain 
concerned that the Administration is prepared to treat the 
nuclear-weapons workers like the wounded veterans at Walter 
Reed. Nobody in the Defense Department planned to inflict harm 
on wounded soldiers--the problem was negligence and 
indifference--and, at its best, the OMB document suggested the 
same with regard to at least part, and perhaps all, of the 
EEOICPA program. But while Secretary Gates insisted on 
accountability for the Army's failures at Walter Reed, I am not 
convinced that the Administration will insist on the same 
degree of accountability when it comes to EEOICPA. So, Mr. 
Chairman, I think that the attitude of Congress--including this 
committee--should be the same as President Reagan's attitude 
toward agreements with the Soviets--trust, maybe, but verify 
for sure.
    Accordingly, I applaud you for holding this hearing. I will 
carefully review the testimony that will be presented and look 
forward to working with you and our colleagues in the Congress, 
to take whatever steps are needed--including further 
legislation to the extent that is necessary or desirable--to 
improve this very important compensation program.
    In that connection, I want to call your attention to 
legislation pending in this body that specifically deals with 
the case of the people who worked at Rocky Flats.
    It is S. 729, the Rocky Flats Special Exposure Cohort Act. 
Introduced by Senator Salazar, it is the Senate companion to 
H.R. 904, my bill of the same name. Both bills would amend the 
compensation act so as to include as members of the Special 
Exposure Cohort all those who were employed at Rocky Flats by 
DOE or a DOE contractor or subcontractor for an aggregate of at 
least 250 work days before January 1, 2006.
    The result would be to help provide the act's benefits to 
any of those workers who contracted a radiation-linked cancer 
specified in the act after beginning employment at Rocky Flats.
    As you know, before a worker who is suffering from a 
covered cancer but not included in the special exposure cohort 
can receive benefits, it must be established that the cancer is 
as likely as not to have resulted from on-the-job exposure to 
radiation. That sounds like a reasonable requirement--and it 
would be appropriate for Rocky Flats if we had adequate 
documentation of radiation exposures for the years when it was 
producing nuclear-weapons components as well as for the more 
recent time when DOE and its contractors have been working to 
clean it up and prepare it for closure. However, in fact there 
were serious shortcomings in the monitoring of Rocky Flats 
workers' radiation exposures and in the necessary 
recordkeeping--to say nothing of the slowness of the current 
administrative process for making the required determinations 
concerning links between exposure and employment.
    So there is a risk that a significant number of Rocky Flats 
workers who should be able to benefit from the act will not 
obtain its benefits in a timely manner or will be denied them 
entirely. Our legislation would prevent this miscarriage of 
justice, by recognizing that Rocky Flats workers have been 
plagued by the same kinds of administrative problems that 
entangled workers at some other locations--problems that were 
addressed through inclusion in the act of the provisions 
related to the ``Special Exposure Cohort.''
    The Rocky Flats workers have sought to be added to the 
cohort through the petition process provided for in the act--
the same process that would have been the target of the cost-
containment program the Administration clearly contemplated but 
now says it has renounced. Their petition was strongly 
supported by the entire Colorado delegation, in both the Senate 
and the House of Representatives, as well as by Governor 
Ritter. Regrettably, however, it was approved only in small 
part, leaving most of the afflicted former Rocky Flats workers 
still confronting the daunting challenge of trying to obtain 
compensation through the labyrinthine process that you will be 
exploring at today's hearing.
    Secretary Leavitt's decision on the Rocky Flats petition is 
under administrative appeal, but regardless of the outcome of 
that appeal there remains the question that is the subject of 
the hearing--Is the Program Claimant Friendly for Our Cold War 
    My answer is that it is not--or at least not sufficiently. 
I look forward to learning what your witnesses will have to say 
and what this committee will conclude after hearing their 
    In conclusion, I would just reiterate what you already 
know, Mr. Chairman and members of the committee--this 
compensation program is not just about money. It is about the 
government's honor and the honor of our country. The nuclear-
weapons workers served America well, and honor demands that 
they be well served in return.
    Thank you for the opportunity to submit this statement.
     Prepared Statement of Mark Ayers, President, The Building and 
        Construction Trades Department, AFL-CIO, Washington, DC.
    Mr. Chairman and members of the committee, on behalf of the 
Building and Construction Trades Department, AFL-CIO, its affiliated 
unions and their members, we are seeking your assistance in redressing 
a wrong that continues to plague current and former construction 
workers employed at Department of Energy (DOE) nuclear facilities.
    Many of these workers have, through no fault of their own, been 
denied benefits under the Energy Employees Occupational Illness 
Compensation Program Act.
    A central issue for these workers is the lack or inadequacy of 
radiological exposure records for their period of employment at the 
facilities. It was the responsibility of DOE and its contractors to 
require and maintain such records. Now many workers with radiological 
cancers find themselves in the untenable position of trying to prove 
radiation exposure when the necessary records either do not exist or 
are inadequate.
    Although the law provides for a system to address this issue, the 
administrative process is slow, complicated, cumbersome and often 
subject to an insensitive bureaucracy at the Departments of Labor (DOL) 
and Health and Human Services (DHHS). Both the DOL Ombudsman as well as 
an independent study commissioned by NIOSH documents many of these 
    The numbers speak for themselves. Out of a total of 85,676 claims 
filed for radiological cancer compensation under ``Part B'' of the 
program, only 20,362 have been paid. The Department of Labor has 
rejected nearly 70 percent of the claims.
    While there is no question that the system and the bureaucracy can 
be improved, the fundamental problem is the law itself.
    Subpart B of EEOICPA provides Federal compensation of $150,000 
(plus future medical benefits) for radiological cancers, beryllium 
disease, and silicosis. Subpart B is administered by DOL but requires 
the DHHS/NIOSH to:

    (1) Conduct individual dose reconstructions for every claim to 
determine if radiation could be the cause of the illness claimed by the 
worker; or
    (2) Absent a dose reconstruction, determine whether the claimant 
should be included in a Special Exposure Cohort (SEC) which presumes 
that radiation caused 1 or more of 22 different cancers, and pays 
claimants if they have one of these cancers.
    Dose reconstructions are very difficult, if not impossible, where 
exposure records are either missing or inadequate. Under current law 
and regulations, the burden of proof lies with the claimant, rather 
than the government, even though the government was responsible in the 
first place for producing and maintaining the records.
    Special Exposure Cohort: Congress recognized that many workers 
employed in nuclear weapons facilities were either unmonitored or 
inadequately monitored for occupational exposure to ionizing radiation 
and therefore faced an insurmountable hurdle of establishing their 
radiation dose to prove their claim for cancer. Moreover, there was 
ample evidence that radiation exposure records were missing, 
incomplete, unreliable or altered. This is particularly true for 
construction workers.
    The act therefore created ``Special Exposure Cohorts (SEC)'' by 
which, claimants from SEC sites are not subject to dose reconstruction 
requirements and are presumed to have had the radiation dosage that 
caused their compensable cancer.
    By legislative mandate, the original act designated four sites as 
SEC: three Gaseous Diffusion Plants (Portsmouth, Paducah, Oak Ridge) 
and the Amchitka Island Test Site. All the workers at these sites had 
to prove was (1) they worked at the sites for a specified period of 
time and (2) they had one of the compensable Part B diseases.
    In addition, the act included provisions that allowed claimants to 
petition to become members of an SEC. Unfortunately, the petition 
process is slow, cumbersome and hamstrung by bureaucratic inertia. 
Moreover, there is evidence of political tampering in an effort to 
retard the petition process.\1\
    \1\ See House Committee on Judiciary, Subcommittee on Immigration, 
Border Security & Claims, United States House of Representatives, 109th 
Congress, ``The Energy Employee Occupational Illness Compensation 
Program Act: Are We Fulfilling the Promise We Made to These Veterans of 
the Cold War when We Created the Program.''
    Thus far only 22 such petitions have been approved covering a 
limited number of workers, and many of these were the result of 
specific legislative initiatives and congressional pressure.
    We believe that the time has come for the Congress to remedy this 
unfair situation by amending the act to fix the problems inherent in 
the SEC process. The same presumptions that underlie the original SECs, 
should apply to all otherwise qualified workers.
    Specifically, we recommend that Subpart B be amended to streamline 
and simplify the SEC process by providing:

    (a) Workers who meet the following criteria would be automatically 
included in an SEC if they were (1) engaged in covered employment in a 
covered facility; (2) had a covered illness; (3) worked more than 250 
days in a covered facility; and (4) their radiation monitoring records 
cover less than 75 percent of the employment period.
    (b) For workers not covered under the above, the process of 
petitioning for inclusion in the SEC should be simplified by: (1) 
setting a deadline of 90 days for DHHS/NIOSH to review petitions; (2) 
simplifying and reducing the need for review of DHHS/NIOSH decisions by 
the DHHS/NIOSH Advisory Committee; (3) establishing that NIOSH may 
incorporate groups of workers into the SEC so that this does not have 
to be done on a worker-by-worker basis; (4) applying the same 
decisionmaking used for the Gaseous Diffusion Plants that currently are 
included in the SEC.

    The effect of section (a) will be to include within the statutory 
SEC determination workers from major nuclear weapons facilities such as 
Savannah River, Hanford, Los Alamos, Oak Ridge (in addition to the 
already included Gaseous Diffusion Plant Workers) and the Nevada Test 
    In addition, we believe that there should be five technical 
amendments designed to: (1) cover certain illnesses linked to hazardous 
exposures that are peculiar to DOE but that were not covered in the 
act; (2) pay for diagnostic evaluation by experts in occupational 
medicine where a health problem appears to be linked to DOE work; (3) 
provide additional independent assistance to claimants so that the 
process becomes less burdensome; and (4) cover certain subcontractor 
employees that were inexplicably excluded from the original legislation 
and (5) change the date of eligibility for benefits from the current 
requirement, which is the date when the application for compensation is 
filed to the date when the covered illness was diagnosed.
    The EEOICPA was enacted with the best of intentions. For those 
workers and their families fortunate enough to qualify for benefits, it 
has been a godsend. However, far too many who are no less deserving 
have been left out and denied. The amendments we have suggested would 
go far in redressing this egregious situation for those who, in many 
cases, gave their lives to protect this country during, the darkest 
days of the cold war.
    Towards that end we urge this committee to consider our request for 
this proposed legislation.
           Prepared Statement of Sylvia Dodson, Knoxville, TN
    I would like to submit a statement for the hearing. I would like to 
request that when there is no living spouse that the surviving children 
be compensated under Part E. Our father died of lung cancer and bone 
cancer and cancer in every organ of his body. He worked 41 years at Oak 
Ridge K-25. His many years of exposures to toxins and chemicals and 
uranium took his life at the age of 63. Compensating his surviving 
children is the least our government should do. No one can put a price 
on a person's life. We know these years of exposure are what shortened 
his life and caused his death. Compensating the surviving children 
would help give us some sort of closure of the horrible memories of 
pain and suffering he went through.
    Thank you, surviving daughter's of J.O. Dodson--Sylvia Dodson and 
Bettye Kaye Richeson.
        Prepared Statement of Deb Jerrison, Yellow Springs, OH*
    In 2005 my mother asked me to help her with her EEOICPA claim as 
the process had become too complicated for her. Over the last 2\1/2\ 
years, I have helped other claimants as a volunteer. During this time I 
have noticed many problems and feel that EEOICPA has moved very far 
from the original intent of Congress. Here are some of my observations.
    * Submitted on Behalf of: Deb Jerison; Janet B. Goode; Carolyn 
Jones; David Goode; Jim Goode; Bob Neff; Virginia Hudgens; Jeff 
Hudgens; Melissa Webb; Fred Radwanski, PE., Boulder City, Nevada; Eric 
Parker, Former USW Union President and Local Coordinator for Mound/
WHPP; and Paige Gibson, Former Health and Safety Officer for USW, Nurse 
and Local Coordinator for Mound/WHPP.

    1. The OCAS-1 form, which all claimants must sign to have their 
dose reconstruction progress from NIOSH to DOL, is missing statutory 
language. When a claimant requested a time extension to look for 
further information she was told this was not possible and that if she 
did not sign the OCAS-1 within the time limit her claim would be 
administratively closed. DOL told her that the only option was to close 
her claim and reopen it if she found more information. This was 
inappropriate and inaccurate. The statute clearly states the steps to 
be followed for claimants to be allowed a time extension. This language 
needs to be on the OCAS-1 form so claimants know of this option.
    2. Notice given by NIOSH for signing the OCAS-1 may not be long 
enough. One claimant received a letter dated Oct. 3 from NIOSH which 
stated that they needed a signed copy of the OCAS-1 in their office by 
Oct. 17 or the claim would be administratively closed. This claim had 
been put on hold while the claimant waited on Freedom of Information 
Act (FOIA) requests and she is still waiting for the information. 
Previously her claim had been erroneously administratively closed. This 
is very distressing to claimants.
    3. The program is cumbersome, complicated, and difficult for 
claimants to navigate, particularly in the case of the elderly, ill, or 
disabled. Claimants give up on the program because they can not 
understand it or do not have the energy or special knowledge needed to 
pursue their claims. The Resource Centers are a great idea, but are 
very limited in what help they can offer claimants. Congress set a 2 
percent fee cap on the initial claim to protect claimants from 
unethical attorneys, but instead this has severely limited the number 
of attorneys or advocates available to help claimants. The Part E 
ombudsman's office is helpful. Part B now has an ombudsman, Denise 
Brock, who can help claimants but she is overwhelmed. The need for 
claimant assistance is great. Even a simple claim takes many hours of 
work and special knowledge to bring to fruition. More help for 
claimants is needed and the process needs to be simplified.
    4. Although delays in processing claims can be a problem, a more 
insidious problem is that NIOSH and DOL are not investigating the 
claims thoroughly enough. Claims are often rushed through, relying on 
incomplete monitoring records and mathematical calculations. NIOSH does 
not talk to co-workers, investigate the papers from a site, or look for 
additional information on an individual worker. NIOSH prefers 
mathematical calculations to hard evidence on an individual worker. If 
a worker was a production worker doing the same thing with the same 
materials as other production workers this may work. But it does not 
work at all for research personnel, material control workers or others 
who worked in small groups or alone.
    One claimant worked with every chemical that came into Mound 
Laboratory. She opened all containers and measured all chemicals out 
into packaging. She had been given no mask or protective clothing to 
wear. She contracted two cancers, one of which was a rare soft tissue 
cancer. DOL was provided with an extensive list of materials she 
handled, the buildings and dates she handled them and documentation 
linking the chemicals to her cancer from reliable chemical databases 
including Haz-Map and still turned down the claim. She died in April 
2007, minus one breast, one lung and one leg. Because her claim was not 
approved and her medical insurance was exhausted, her family is left 
with huge medical bills.
    One claimant provided NIOSH with documentation from personal 
records, written in the 1950s, showing he had analyzed all radioactive 
and non-radioactive materials that came into Mound. NIOSH would not 
give this evidence credence and told the claimant they would only use 
official monitoring records.
    It is difficult, if not impossible, to get NIOSH to give someone 
dose for radionuclides that are not listed as being 1 of the 12 
radionuclides NIOSH lists as being at Mound, even with proof from 
Mound's own documents. When questioned about this, NIOSH told the 
claimant that the worker's dosimetry badge would have picked up all 
radiation and he was covered this way. This would only be true if the 
radionuclide gave off the same types of radiation that the worker was 
being monitored for.
    5. Burden of Proof is a problem for many people. Many workers died 
long ago. Hospitals and doctor's offices have closed. It is very hard 
to locate old medical records. Older records were written to a 
different standard than current records. As Chronic Beryllium disease 
(CBD) was not widely known for years, it may not be recognizable in 
older records, even with the pre-1993 criteria. A DOL claims examiner 
told one claimant that since the claimant's specific medical finding 
could be interpreted either for his cancer or CBD, DOL would interpret 
it as the cancer instead of CBD, although the finding was ``consistent 
with CBD.'' The worker had died in 1960.
    Another issue is the records that DOE was supposed to maintain. One 
claimant had all 11 of her husband's chest X rays destroyed by DOE a 
year and a half after she opened her claim. These X rays would have 
provided invaluable information on whether or not the worker had CBD. 
We've all heard of the 435 boxes of Mound records that were buried in a 
radioactive waste dump. In these boxes were laboratory notebooks that 
one claimant needed to assist with her claim. As mentioned before, 
bioassay and dosimetry records are missing.
    Claimants who are looking for DOE documents to assist with their 
claims do not have access to these documents. Although NIOSH has 
access, they will not look for the documents, even when claimants 
request specific documents. Claimants can and do file Freedom of 
Information Act (FOIA) requests, but because the records are in such 
disarray, the cost to claimants is often prohibitive. One claimant just 
received a cost estimate of $45 an hour for Legacy Management to search 
for documents needed for a claim, with no assurance that the records 
were in the boxes to be searched. Another claimant was given an 
estimate of over $30,000 for a list of chemicals she handled while 
doing her job. There is no archive of documents that claimants have 
access to. Records at the NARA Federal Records Center in Dayton Ohio 
are not available to claimants, although records at other NARA centers 
are. So if claimants cannot afford the exorbitant search fees charged 
for FOIA requests they cannot get the information they need.
    6. The playing field is unlevel. DOL/NIOSH has access to all the 
records and claimants have very limited access as described above.
    Part E claimants do not have access to the Site Exposure Matrix 
(SEM) that DOL uses to determine whether or not to pay a claim. 
Although there is a public version of the SEM online, it is merely a 
list of chemicals used somewhere at the site at some time since the 
site opened. This means claimants must remember the exact name of the 
chemicals they used, what building or location they were in at the time 
and what the date was. (Try remembering the name or chemical 
composition of the dish detergent you used 20 years ago!) When a 
claimant advocate complained about this to a DOL employee recently she 
was told that if claimants had access to the same information DOL did 
they could ``tailor'' their claims to the information. The converse is 
true; because claimants do not have access to the Part E matrices, 
there is no way to monitor to make sure DOL is using the material 
    There also needs to be a clear statement from DOL on what proof, 
studies, etc., are needed to create an acceptable link between an 
illness and a chemical exposure and the steps a claimant should use to 
make the link available to claimants. I have been told that DOL can 
only use NIH's Haz-Map data base. While this is a good starting point, 
it does not list all occupational illnesses. This can, and has, caused 
valid claims to go unpaid.
    7. NIOSH's method of overestimating probability of causation (POC) 
causes confusion and agony to claimants. I have been told that NIOSH 
overestimates probability of causation on claims that they feel will 
come in at under 45 percent. If they feel a claim will come in above 45 
percent or the claimant has two or more cancers they will do an actual 
estimate. This is a problem because it is very upsetting to claimants 
to have a POC of 44 percent for one cancer and then when the claimant 
gets an additional cancer the POC drops to 20 percent for both cancers. 
Claimants do not understand this and feel that NIOSH is playing with 
the numbers.
    It also makes it very hard for a person working the claim because 
it is impossible to know how many more rem you need to find or where 
the claim really stands. NIOSH is unable, or unwilling, to give 
claimants a firm, or ballpark, number of how many rem it would take to 
put the claim at the 50 percent or better mark.
    The draft dose reconstructions do not give the claimants the POC, 
although NIOSH must compute this to determine whether a claim hits the 
50 percent mark. If a claimant wants to know how close he is to the 
magic 50 percent he has to input numbers in tiny print at the end of 
the draft dose reconstruction into NIOSH's online IREP program. This is 
beyond many claimants.
    Also, the POC seems to jump all over the place from one dose 
reconstruction to the next. One claimant had a first dose 
reconstruction that came in with a POC around 18 percent with 44 rem. 
Several things changed and the second dose reconstruction came in at 
44.7 percent with 126 rem. The third dose reconstruction had a POC of 
38 percent with 159 rem. How could the POC drop as the rem increased? 
When questioned about this, NIOSH said the second dose reconstruction 
was in error. This does not generate trust in NIOSH's calculations and 
    8. Some of the decisions NIOSH makes are more arbitrary and 
capricious than scientifically based. NIOSH will not supply claimants 
with written documentation or bases for decisions. One claimant sent a 
report to NIOSH stating the worker had gotten a piece of hot stainless 
steel in his eye. NIOSH told the claimant that since the word ``hot'' 
was not in quotation marks this meant heat rather than radioactivity. 
When questioned, NIOSH referred the claimant to OTIB-0022 ``Guidance on 
Wound Modeling for Internal Dose Reconstruction,'' which did not 
address this issue. When the claimant directly asked for what this 
decision was based on NIOSH declined to answer. When the claimant 
supplied NIOSH with an official document, MLM-1996 (OP) ``Design 
Features of Mound Laboratory's Medical Decontamination Facility,'' 
which stated that Mound could not measure radioactivity in a wound at 
the time of the incident, NIOSH did not respond.
    NIOSH was, and still may be, converting reps to rems incorrectly. 
In the 1950s neutron dose was at times reported in reps. When a 
claimant asked about this, NIOSH stated there was a one to one 
conversion between reps and rems. The 1950 AEC publication, ``Control 
of Radiation Hazards in the Atomic Energy Program,'' states that for 
neutrons and protons one rep is the equivalent of 10 rem. The claimant 
supplied NIOSH with a copy of the document but NIOSH did not respond to 
questions on whether this has been changed. No changes were made to the 
dose reconstruction in question.
    NIOSH revises incident reports written years ago to say what they 
think they should have said rather than what was reported. A claimant 
sent NIOSH an incident report which stated, ``his next move was to 
replace the gauntlets, thereby preventing further contamination of the 
lab.'' NIOSH says the incident report is incorrect and should have 
said, ``to prevent further potential contamination.'' Because of this 
they gave the claimant no dose for the radionuclide in question.
    The computer program that NIOSH uses to determine tritium dose 
measurements at Mound gives tritium measurements prior to the date that 
tritium was monitored at the site. This mistake can actually help 
claimants, as it allows for missed dose.
    At Mound, Health Physics logbooks report many air reversals and 
ventilation problems in glove boxes and buildings which spread 
radiation through the building. When a claimant sent copies of these to 
NIOSH she was told that these would not have added any dose to the 
claim since the worker was not mentioned by name. When she asked that 
the logbooks be used for all applicable claimants who were referenced 
by name, NIOSH said that they could not do this because of a ``privacy 
    NIOSH denies that there are gaps in the dosimetry/bioassay record 
although claimants remember bioassay samples being taken whose results 
are not in the record. Since NIOSH does not have records, it does not 
assign dose. This results in inaccurate dose reconstructions. A 
claimant clearly remembered an incident in 1950 when her husband was 
sent home from work and remained off for several days. His dosimetry 
records indicate that he did not work in his lab for 11 days following 
the incident. While off work, the worker drove urine and feces samples 
to Mound each day and was sent home, presumably because the samples 
were too hot to allow his return. MLM-177 ``Monthly Health Information 
Report'' outlines Mound's policy on exposure for this time period. It 
states that a worker with a count higher than 
12c/min/50ml is removed from his job and put to work in an area where 
the possibility of exposure is more remote, or he is barred from the 
operating area altogether. It says nothing of what would cause a person 
to be removed from the site for several days. There is no surviving 
record of these samples.
    When there are gaps in the workers' monitoring records, not only do 
they not receive dose for the materials they were working with but they 
also do not receive ``missed dose.'' One worker was a research 
physicist at Mound in the early years. His monitoring records are 
missing at least 24 months of bioassay/dosimeter readings. The papers 
he wrote during this time indicate he was working with radionuclides. 
NIOSH states that he was obviously working only with non-radioactive 
materials at this time and will not assign dose or missed dose for this 
time which results in an inaccurate dose reconstruction.
    9. Can GAO investigate how much money is being spent on salaries to 
administer this program as opposed to how much is being spent to 
compensate workers? The percentage of claimants who are being paid 
compared to the number of cases filed is abysmally low. DOL and NIOSH 
keep adding additional staff to administer the program. It seems like 
it would be a better idea to spend the money paying claimants, since 
this was the intent of the law, rather than paying staff.
Prepared Statement of Daniel Yaeger, Worker, U.S. Department of Energy 
                              Fernald Site
    I worked at the U.S. Department of Energy's Fernald site from 1987 
until 2005. In 2006, I was diagnosed with kidney cancer. Kidney cancer 
is a recognized radiation cancer. I am now struggling with the 
financial expense of this disease. I filed a claim with the U.S. 
Department of Labor (DOL) under the Energy Employee Occupational 
Illness Compensation Program Act (EEOICPA) in 2006. The claim was 
referred to the National Institute for Occupational Safety & Health 
(NIOSH) for a dose reconstruction. NIOSH issued a dose reconstruction 
report that concluded the radiation dose I received from working at 
Fernald was not sufficient to be ``at least as likely as not'' the 
cause of my kidney cancer. To be eligible for benefits, the dose 
reconstruction has to find that a worker received a radiation dose 
above the causation threshold of ``at least as likely as not'' (51 
    NIOSH does not have complete and accurate monitoring records for 
the Fernald site to reliably conduct a dose reconstruction. As a result 
NIOSH primarily based its dose reconstruction on models and what it 
represents are claimant favorable assumptions. NIOSH doesn't want to 
acknowledge its lack of monitoring records because it doesn't want 
Fernald workers to be classified as a Special Exposure Cohort (SEC). 
Workers in a SEC who incur a specified cancer, qualify for compensation 
without the completion of a radiation dose reconstruction or 
determination of the probability of causation. The act allows for the 
classification as an SEC if there is inadequate information to estimate 
a worker's radiation dose. A petition was filed with the DOL to 
designate certain Fernald workers as a SEC. NIOSH has reviewed the 
Fernald SEC petition and has recommended that it be denied. The matter 
is now pending before the Advisory Board on Radiation and Worker 
Health. If this petition were approved, I would be eligible for 
    Over 20 other sites already have classes of workers that are 
included in a SEC. Fernald does not have any more reliable monitoring 
data than these sites and its workers should not be treated 
differently. Many NIOSH officials who are responsible for the dose 
reconstruction program worked at Fernald and were responsible for 
radiological safety and monitoring. There is a real conflict of 
interest for those who were responsible for the Fernald monitoring 
program to be the same individuals who are responsible for reviewing a 
petition that cites deficiencies in the program. This conflict cannot 
be avoided by contracting the task to a third party. In its evaluation 
of the Fernald SEC petition, NIOSH concluded there is sufficient and 
accurate monitoring data to estimate doses for Fernald workers. As 
discussed below, this is simply not the case. I urge you to represent 
Fernald workers interest in the SEC petition process.
    The dose reconstruction process has become a job welfare program 
for bureaucrats. Taxpayers don't need to fund a large bureaucracy to 
engage in junk science to deny benefits to ill workers. The money 
funding this bureaucracy should be channeled to the workers. The dose 
reconstruction is fundamentally flawed and inefficient and should not 
be the basis for determining whether to help ill workers. This 
expensive dose reconstruction program should be eliminated and all 
workers should be treated as a cohort. Specifically, if a DOE worker 
develops a specified radiation illness, the worker should be eligible 
for benefits. Additionally, medical insurance should be part of the 
benefits provided to ill workers similar to what is provided to 
retirees. Ill workers face great difficulties in obtaining and 
affording medical coverage. I urge you to sponsor legislation that 
would make these changes. The savings from eliminating the expensive 
dose reconstruction program should make this legislation revenue 
    Thank you for your help and assistance.
  Response to Questions of Senators Kennedy, Murray, Brown, and Reid 
                          by Malcom D. Nelson
                            senator kennedy
    Question 1a. Many claimants mistrust the government's motives in 
administering EEOICPA. They fear that the government would rather deny, 
than grant, claims. The 2006 Annual Report by your office found that 
claimants have difficulty finding appropriate medical experts on their 
own, yet they are hesitant to use the Department of Labor Division of 
Energy Employees Occupational Illness Compensation Program medical 
staff because of concern that they will not review claimant's files 
objectively. How do you think the Department of Labor can increase 
claimants' trust in its medical staff?
    Answer 1a. To offset the mistrust (hesitation) that many claimants 
have with respect to utilizing medical experts provided by DEEOIC, 
claimants ought to be afforded more information concerning this 

    Question 1b. Do you think that providing contact information for 
qualified medical professionals who are not affiliated with the 
Department would help claimants find the medical resources they need?
    Answer 1b. Providing claimants with contact information for 
qualified medical professionals who have no affiliation with the 
Department would assist claimants in finding the medicare resources 
that they need.

    Question 2. Dr. Silver noted in his testimony that the Advisory 
Board on Radiation and Worker Health provides important independent 
oversight for Part B claimants and suggests a similar mechanism be 
created for Part E. Do you think this is a good idea? Why or why not? 
Dr. Silver's other suggestions include giving grants to claimant 
advocacy groups and qualified medical experts in order to assist 
claimants from rural areas who have great trouble getting skilled 
assistance. Is this a good idea? Why or why not?
    Answer 2. Because my responsibilities involve Part E, rather than 
Part B, I only have a cursory appreciation of the operations of the 
Advisory Board on Radiation and Worker Health. Thus, I do not have a 
sufficient basis with which to answer whether a similar mechanism 
should be created for Part E.
    As our annual report and my written testimony indicate, the Office 
of the Ombudsman receives requests for assistance from claimants who 
find the claims process challenging and burdensome. Some of these 
claimants would benefit from advocacy to assist them with developing 
their claims and providing medical and legal experts when necessary. 
Nevertheless, before responding to the specific question of whether it 
is a good idea to give grants to claimant advocacy groups and qualified 
medical experts I would prefer to have the opportunity to review the 
specifics of such a proposal.

    Question 3. By all accounts, the Part E Ombudsman program has been 
a success in providing help and guidance for Part E claimants. Is there 
any reason the ombudsman's authority should not be expanded to cover 
Part B?
    Answer 3. This decision clearly rests with Congress. Therefore, the 
Office of the Ombudsman will not take a position on this matter.

    Question 4a. Do you think the Ombudsman's office needs more power?
    Answer 4a. As the Office is currently structured, we have 
successfully performed our mission. However, access to claimant records 
which are in the possession of the Program Agency would enhance the 
efficiency of the Ombudsman's Office and would save claimants both time 
and money,

    Question 4b. In addition to giving basic advice, should you be 
entrusted with an advocacy role when you see a languishing need?
    Answer 4b. Based on my experience as Ombudsman for Part E of 
EEOICPA, it is clear that many of the claimants who contact this Office 
want an advocate who is on their side and one who will zealously 
represent their interests, as would a private attorney. Because many 
claimants face difficulty finding attorneys/representatives who are 
willing to represent them, some have indicated that they would like the 
Ombudsman to assume a more forceful role.
    In general, however, an Ombudsman's office has three essential 
characteristics: independence; impartiality; and confidentiality. See 
Coalition of Federal Ombudsmen and Federal Interagency ADR Working 
Group Steering Committee, A Guide for Federal Employee Ombuds, Section 
C (May 2006); American Bar Association, Standards for the Establishment 
and Operation of Ombuds Offices (February 2004). Consequently, if the 
office were entrusted with an advocacy role, I would envision that 
advocacy remaining consistent with the responsibility to remain 
independent, impartial and confidential.
                             senator murray

    Question 1. Does the office of the ombudsman have the resources it 
needs to assist in providing a timely ``claimant friendly'' process? If 
not, what is needed?
    Answer 1. With our existing resources, the Office of the Ombudsman 
has managed to carry out its mission. Nevertheless, the uncertainty 
that surrounded the status of the office, which had been scheduled by 
statute to sunset and was continued by the Secretary of Labor 
administratively in October 2007 pending congressional action to 
continue the Office legislatively, impacted the Office in a number of 
ways, including our ability to engage in long term planning. The 
extension of the Office should provide us with needed consistency, and 
will better enable us to maintain the level of staffing necessary to 
expeditiously serve claimants.
    However, as we currently operate, if a claimant wants us to review 
the documents associated with their claim, the claimant either has to 
provide us with the relevant documents or (in cases where the claimant 
does not have the relevant documents) contact their claims examiner to 
obtain copies, and then provide the copies to us. This is often time 
consuming and sometimes results in claimants incurring the costs for 
mailing, faxing, duplicating, etc. It would be faster and easier for 
claimants if the Office of the Ombudsman could obtain these documents 
directly from the Program Agency.

    Question 2. Should the Ombudsman's authority be expanded to include 
Part B claims? What resources would be needed to make this necessary?
    Answer 2. The Office of the Ombudsman is committed to serving 
claimants and potential claimants, and consequently, will carry out its 
mission consistent with the authority granted by Congress. Because the 
decision as to whether to expand the Ombudsman's authority to include 
Part B claims rests with Congress, the Office of the Ombudsman will not 
take a position on this matter.
    However, there are sonic issues, including some very technical 
medical and radiation issues that are unique to Part B. If the 
authority of this Office is expanded to include Part B claims, it will 
be necessary to ensure that the Office has the capabilities to address 
these unique Part B issues.

    Question 3. In your written testimony you state that some 
applicants are frustrated with differing eligibility requirements and 
constraints in Part ``B'' and ``E.'' In your opinion would it make the 
claims process more efficient for claimants and those reviewing claims 
to have these requirements standardized?
    Answer 3. Standardizing the eligibility requirements of Parts B and 
E will not necessarily make the process more efficient. Claimants 
frustrated by the different eligibility requirements and constraints 
under Part B and Part E generally see this as an issue of ``fairness,'' 
rather than an issue of efficiency.

    Question 4. Under Part ``E'' the burden to establish entitlement of 
benefits is on the claimant who, as you and others have testified, is 
often elderly or suffering from debilitating diseases. It is concerning 
that some of the most deserving are not receiving benefits due to their 
inability to navigate the claims process or afford a personal attorney 
to do so for them. What other options do these people have?
    Answer 4. For many claimants the only option is to navigate the 
system on their own. In fairness, the Department of Labor does offer 
assistance to claimants in proving their claims. However, many 
claimants believe that the offered assistance is not sufficient, or 
does not go far enough. Moreover, many claimants regard this as an 
adversarial process and thus do not trust the government (DOE/DOL) to 
aggressively pursue their claim for benefits.
    There are some lay representatives who have experience with this 
Program, and in some areas of the country there are groups, often 
former workers, who will assist claimants, however there are not very 
    The Office of the Ombudsman can offer advice and suggestions, but 
we do not have the personnel (or the authority) to engage in the 
``footwork,'' i.e., the research, the writing of letters, the 
contacting of the claims examiners, that is often necessary to support 
a favorable claim. Thus, in the end, the only option available for many 
claimants is to navigate the system on their own or with the assistance 
of family members.
                             senator brown
    Question 1. In terms of the program budget, what is the relative 
ratio of the cost of administering the program versus the amount of 
money paid out in compensation?
    Answer 1. The Office of the Ombudsman does not possess the 
information needed to answer this question. The Office of the Ombudsman 
is an independent office, originally created by Congress in 2004 and 
continued by the Secretary of Labor administratively in 2007, with a 
three-fold mission:

     to provide information to claimants and potential 
claimants on the benefits available under Part E and the requirements 
and procedures applicable to the provision of such benefits;
     to make recommendations to the Secretary of Labor 
regarding the location of resource centers; and
     to issue an Annual Report to Congress no later than 
February 15 of each year detailing the number and type of complaints, 
grievances and requests for assistance received by the Office and an 
assessment of the most common difficulties encountered by claimants and 
potential claimants.

    In light of our mission, we do not possess the information required 
to answer this question.

    Question 2. Can you speak to the OMB memorandum sent to the 
Department of Labor regarding the ``cost containment options?'' 
According to the GAO, one of the proposed cost containment options was 
to, ``require administration clearance of special exposure cohort 
determination.'' Can you speak to this memo and if any of its five 
recommendations have been implemented in any small way?
    Answer 2. No, I am not in a position to speak to this memo. The 
issues surrounding this memo arose prior to my appointment as 
Ombudsman. Although, as stated in the Office's Annual Report for 2006, 
this Office received inquiries from claimants regarding this memo, the 
Office's knowledge of this memo is limited to what we read in 
newspapers and other publicly available sources.

    Question 3. What is the current backlog of cases? At the current 
rate, and if no more cases are opened, how long would it take to offer 
a ruling on all the current cases?
    What is the backlog in Ohio? Is there a plan to address the 
    Is there an overabundance of backlog cases specific to any one Ohio 
site, in other words, is there any one site in Ohio that has much 
larger backlog than another?
    Answer 3. While the Program Office provides statistics addressing 
the claims filed at various sites, see http://www.dol.gov/esa/regs/
compliance/owcp/eeoip/Statistics/WebPages, I do not have sufficient 
information, such as how long these claims have been pending, with 
which to fully evaluate backlogs.

    Question 4. Can you outline the subcontracting process, including 
what criteria are used to determine whether to subcontract, when and 
how contractors are evaluated? Please also include as an attachment to 
your answers a Request for Proposal.
    Answer 4. The Office of the Ombudsman does not have any contracts 
or subcontracts. Moreover, to my knowledge, the Office of the Ombudsman 
has not utilized any contracts or subcontracts (other than purchase 
orders for furniture, equipment, etc., for the Office, which do not 
appear to be the concern of your question).

    Question 5. Currently, are there any NIOSH officials that 
previously worked for or did work related to the Fernald site in Ohio? 
Have any of those NIOSH officials who worked at Fernald been a part of 
any discussion concerning the Fernald SEC petition, the Fernald Site 
Profile, or a Fernald worker's dose reconstruction?
    Answer 5. The Office of the Ombudsman does not possess the 
information needed to address this question. (Part B-related 
                              senator reid
    Question 1a. In your testimony, you note that the Office of the 
Ombudsman does not have investigatory authority and it cannot advocate 
on an individual claimant's behalf. You also state that a lack of legal 
representation and expert assistance ``exacerbates'' the problems with 
establishing their entitlement to Part E compensation.
    If you, as the Claimant Ombudsman for the Department of Labor were 
given the authority to act as an advocate on behalf of these claimants 
individually, how would you exercise this authority? Specifically, 
please identify what you could do for them, how you would do it, and 
how claimants would benefit.
    If you were given investigatory authority and the power to act as a 
claimant's advocate, how would it change the speed of the process?
    Answer 1a. A full discussion on how the Office of the Ombudsman 
would exercise the authority to advocate on behalf of claimants 
requires additional research and thought, and would depend on the 
specifics of the ``authority'' given to the Office. Nevertheless, here 
are some general concepts:

     Traditionally, an ombudsman not only works for the 
resolution of particular issues, but also, where appropriate, makes 
recommendations for the improvement of the general administration of 
the entity they serve. Thus, overall the Ombudsman would advocate for 
fairness in the process.
     Consistent with the ``traditional'' role of an Ombudsman, 
the Office would not substitute as someone's lawyer, representative, or 
     The Office would provide information, advice and 
assistance to claimants.
     The Office would evaluate claims objectively and would 
advocate for change or relief when the facts support the claim.

    The question also asks how claimants would benefit from granting 
the Ombudsman the authority to act as an advocate. In my opinion, even 
though the Office would not act as a private attorney, claimants in 
general would benefit from the ``fruits'' of our advocacy.

    Question 1b. If you were given investigatory authority and the 
power to act as a claimant's advocate, how would it change the speed of 
the process?
    Answer 1b. Nevertheless, a mere grant of investigatory authority 
would not change the overall speed of the process. While probing from 
the Ombudsman may, in certain instances, prompt action on a case, I do 
not believe that merely having investigatory authority will change the 
speed of the process.

    Question 2a. Your testimony discusses complaints from claimants 
that they cannot fully establish their claims because the relevant 
records have been either lost or destroyed by the DOE contractor by 
whom they were employed. You also state that follow through on locating 
or finding replacements for missing evidence is beyond the capabilities 
of the claimant.
    What could the Ombudsman's office do about this were it to have 
additional powers to act as an advocate for individual claimants?
    Answer. 2a. Quite honestly, in situations where relevant records 
have been lost or destroyed there is very little that anyone can do. 
When confronted with such situations, the Ombudsman's office tries to 
offer suggestions on where to look for relevant evidence, and of 
course, we will continue to do that. However, where records do not 
exist, either because they are lost, were never kept, or destroyed, 
there really is not much that anyone can do to recreate or find these 

    Question 2b. What specifically in the law or DOL's rules make a 
claimant responsible for producing evidence, which is typically in the 
possession of the Department of Energy or a contractor, in order to 
establish the claimant's entitlement to compensation under Part E?
    Answer 2b. 42 U.S.C. Section 7384v. Assistance for claimants and 
potential claimants specifies the program's responsibility to assist 
claimants in securing evidence. The provisions provides:

    (a) ASSISTANCE FOR CLAIMANTS--The President shall, upon the receipt 
of a request for assistance from a claimant under the compensation 
program, provide assistance to the claimant in connection with the 
claim, including--

    (1) assistance in securing medical testing and diagnostic services 
necessary to establish the existence of a covered beryllium illness, 
chronic silicosis, or cancer; and
    (2) such other assistance as may be required to develop facts 
pertinent to the claim.

    (b) ASSISTANCE FOR POTENTIAL CLAIMANTS.--The President shall take 
appropriate actions to inform and assist covered employees who are 
potential claimants under the compensation program, and other potential 
claimants under the compensation program, of the availability of 
compensation under the compensation program, including actions to--

    (1) ensure the ready availability, in paper and electronic format, 
of forms necessary for making claims;
    (2) provide such covered employees and other potential claimants 
with information and other support necessary for making claims, 

          (A) medical protocols for medical testing and diagnosis to 
        establish the existence of a covered beryllium illness, chronic 
        silicosis, or cancer; and
          (B) lists of vendors approved for providing laboratory 
        services related to such medical testing and diagnosis; and

    (3) provide such additional assistance to such covered employees 
and other potential claimants as may be required for the development of 
facts pertinent to a claim.

    Claimant's burden to establish entitlement is outlined at 42 U.S.C. 
Section 7385s-4(c) (governing living worker claimants) which provides 
in pertinent part that:

    (c) OTHER CASES.--(1) In any other case, a Department of Energy 
contractor employee shall be determined for purposes of this part to 
have contracted a covered illness through exposure at a Department of 
Energy facility if--

          A.  it is at least as likely as not that exposure to a toxic 
        substance at a Department of Energy facility was a significant 
        factor in aggravating, contributing to, or causing the illness; 
          B.  it is at least as likely as not that the exposure to such 
        toxic substance was related to employment at a Department of 
        Energy facility.

    42 U.S.C. Section 7385s-2(a) (governing survivor claimants) which 
provides in pertinent part that:
    CATEGORIES OF COMPENSATION.--The amount of contractor employee 
compensation under this part for the survivor of a covered DOE 
contractor employee shall be determined as follows:

    (1) CATEGORY ONE.--The survivor shall receive the amount of 
$125,000, if the Secretary determines that--

          (A) the employee would have been entitled to compensation 
        under section 7385s-4 for a covered illness; and
          (B) it is at least as likely as not that exposure to a toxic 
        substance at a Department of Energy facility was a significant 
        factor in aggravating, contributing to, or causing the death of 
        such employee.

    (2) CATEGORY TWO.--The survivor shall receive the amount of 
$150,000, if paragraph (1) applies to the employee and the Secretary 
also determines that there was an aggregate period of not less than 10 
years, before the employee attained normal retirement age (for purposes 
of the Social Security Act), during which, as the result of any covered 
illness contracted by that employee through exposure to a toxic 
substance at a Department of Energy facility, the employee's annual 
wage did not exceed 50 percent of the average annual wage of that 
employee, as determined under section 7385s-2(a)(2)(A)(ii).
    (3) CATEGORY THREE.--The survivor shall receive the amount of 
$175,000, if paragraph (1) applies to the employee and the Secretary 
also determines that there was an aggregate period of not less than 20 
years, before the employee attained normal retirement age (for purposes 
of the Social Security Act), during which, as the result of any covered 
illness contracted by that employee through exposure to a toxic 
substance at a Department of Energy facility, the employee's annual 
wage did not exceed 50 percent of the average annual wage of that 
employee, as determined under section 7385s-2(a)(2)(A)(ii).

    In addition, the relevant provision of the implementing regulations 
    Section 30.111 (20 CFR Section 30.111) which provides that:

    a. Except where otherwise provided in the act and these 
regulations, the claimant bears the burden of proving by a 
preponderance of the evidence the existence of each and every criterion 
necessary to establish eligibility under any compensable claim category 
set forth in Sec. 30.110. Proof by a preponderance of the evidence 
means that it is more likely than not that the proposition to be proved 
is true. Subject to the exceptions expressly provided in the act and 
regulations in this part, the claimant also bears the burden of 
providing to OWCP all written medical documentation, contemporaneous 
records, or other records and documents necessary to establish any and 
all criteria for benefits set forth in these regulations.
    b. In the event that the claim lacks required information or 
supporting documentation, OWCP will notify the claimant of the 
deficiencies and provide him or her an opportunity for correction of 
the deficiencies.
    c. Written affidavits or declarations, subject to penalty for 
perjury, by the employee, survivor or any other person, will be 
accepted as evidence of employment history and survivor relationship 
for purposes of establishing and may be relied on in determining 
whether a claim meets the requirements of the act for benefits if, and 
only if, such person attests that due diligence was used to obtain 
records in support of the claim, but that no records exist.
    d. A claimant will not be entitled to any presumption otherwise 
provided for in these regulations if substantial evidence exists that 
rebuts the existence of the fact that is the subject of the 
presumption. Substantial evidence means such relevant evidence as a 
reasonable mind might accept as adequate to support a conclusion. When 
such evidence exists, the claimant shall be notified and afforded the 
opportunity to submit additional written medical documentation or 

    Subsections 30.112, 113, and 114 of the regulations further discuss 
the burden of proof and the kinds of evidence necessary to meet those 
burdens. Taken together, these regulations make it clear that the 
burden of proof ultimately has been placed on the claimant.
  Response to Questions of Senator Murray by James Melius, M.D., DrPH
    Question 1. In your testimony, you expressed concern about the 
timeliness of the SEC petition evaluation process. In your experience, 
what is the average time it takes to complete a petition review by the 
Advisory Board?
    Answer 1. The time taken by the Advisory Board to conduct a SEC 
petition review depends on the technical effort required to complete 
that review. For sites where NIOSH recommends that the petition be 
granted, the review time is usually short. Often, the petition review 
and recommendation can be completed at the meeting where the petition 
evaluation report is presented by NIOSH.
    If the situation is more complex and NIOSH is not recommending that 
the petition be granted (or large portions of the petition be granted), 
the Board's review can last much longer. In these cases, the Board 
requests that our contractor conduct a detailed technical review of 
issues relevant to the petition, and then the Board and its contractor 
work with NIOSH to resolve any disagreements between our evaluation of 
these technical issues and that of NIOSH (or its contractors). 
Resolution of these issues is time consuming and can often take several 
months, particularly for the large DOE facilities.

    Question 2. Do Advisory Board members get information from DOE 
sufficiently in advance of meetings so that they can review the 
information before having to make a decision? In your opinion, should 
all parties, including the petitioners (workers and survivors who filed 
the petition) get all reports prior to the Advisory Board meeting?
    Do petitioners regularly have the opportunity to address the Board 
and ask questions about the Board's decisionmaking process?
    Answer 2. In general, DOE and NIOSH have tried to get information 
to the Board before meetings in order for the Board to have sufficient 
time to review the information before taking action. In many instances, 
the Board has refused to take actions without adequate time to review 
documents and other necessary information. However, there have been 
significant difficulties for the petitioners in obtaining information 
prior to the Board taking action on an issue. Many of the documents 
generated by the Board's contractor or by NIOSH and utilized by the 
Board for decisionmaking are required to undergo Privacy Act review 
before they are released to the general public (some also require 
security review). This review can delay the availability of the 
documents for several weeks or longer. Recently, the Board has worked 
with NIOSH to establish a mechanism to better track documents needing 
review and to ensure that these documents are transmitted to the 
petitioners and other interested parties prior to any action by the 
    In general, the petitioners have the opportunity to address the 
Board and ask questions at any meeting where their petition is being 
considered. They are also invited to participate in most work group 
meetings where their petition is being discussed. However, many of 
these meetings take place at sites distant from the DOE facility in 
question, and the petitioners often have to participate by conference 
call. The complex technical nature of the discussions also makes 
participation in these meetings difficult. The petitioners often 
represent diverse work groups at a facility, and the petitioners are 
often not knowledgeable about other parts of the facility or processes 
being discussed at a particular meeting. The process would be greatly 
improved by more active outreach to the petitioners and other 
interested parties including efforts to obtain more input on the 
specific technical issues under consideration in the review of that 

    Question 3. In your written testimony you expressed concern about 
claimant input in the dose reconstruction process, noting that their 
comments often go ignored and are not fully utilized. In your opinion, 
how would the claims process be improved if their input was included 
and valued?
    What advice would you give NIOSH and DOL in seeking out and 
including worker knowledge in their evaluation process?
    Answer 3. The claims process for many claimants would be greatly 
improved by more consideration being given to input from the claimants. 
The current claims process is largely dependent on the use of exposure 
records and monitoring data. Often complete records for an individual's 
career are not available, and there are many other deficiencies in 
these records (inadequate monitoring methods and techniques, etc.) When 
individual records are not available, NIOSH relies on various methods 
to estimate exposures including the use of exposure records from other 
works and indirect exposure estimates. Such records can be useful, but 
they miss the great variability in individual work activity in the DOE 
complex. Individual workers have a much better understanding of their 
actual work environment and factors that could have impacted their 
exposures. The improved utilization of such information would greatly 
improve the dose reconstruction process by helping to evaluate their 
exposures during times when records are missing (or otherwise 
inadequate) and by pointing out additional sources of exposure (e.g., 
exposure incidents).
    In order to better ascertain information from the claimants, I 
would advise NIOSH to revamp their interview process. Rather than 
relying on a single interview to cover all sites, NISOH should develop 
site specific interviews that ask information relevant to that DOE site 
and give the claimant greater opportunity to provide information on 
their work exposures, particularly during times when records are not 
available. The current ``generic'' site questionnaire is very confusing 
to many of the claimants. The interviewers should be better trained and 
should focus on just a few specific sites rather than attempting to 
cover all sites. This interview process should be supplemented by 
better follow-back by the person doing the dose reconstruction to 
obtain additional clarification that will help them complete the dose 
    This process should be supplemented by a more active outreach 
program to obtain input from former workers and their representatives 
about working conditions at each site and other factors that could 
affect exposures throughout the site. Unfortunately, the credibility of 
the program has been damaged by NIOSH's reliance on former DOE site 
health physics staff as the major source of information about each site 
and the lack of opportunity for workers from each site to have 
meaningful input into the documents and procedures used for dose 
reconstruction at that site. This imbalance needs to be corrected.

    Question 4. In your experience as a member of the Advisory Board, 
how prevalent do you think the removal of dosimetry badges was for 
nuclear workers covered under this program?
    Should NIOSH, DOL, and the Advisory Board take the removal of 
badges into consideration when evaluating a petition? If so, how much 
weight should such information receive in the decisionmaking process?
    Given that many records are incomplete or inaccurate, how should 
agencies determine whether or not badges were removed? What role should 
the claimant play in the determination?
    Once confirmed, what role should this information play in the 
determination process for each agency?
    In your experience as the Chair of the Hanford Working Group, how 
prevalent was this practice at Hanford? How should this information 
influence the Board's consideration of SEC petitions for Hanford 
    Answer 4. Circumstances where workers were not properly monitored 
for radiation exposures (such as removal of badges) must be taken into 
account when evaluating a petition or performing an individual dose 
reconstruction. The weight given to such reports will depend on many 
factors including the extent of the possible exposure (how frequent, 
how high was the potential exposure, etc.), the ability to 
appropriately estimate that exposure based on other information, and 
other factors. If NIOSH is going to estimate the exposure based on 
other information, then NIOSH must be sure that their estimate 
adequately accounts for radiation dose that the claimants may have 
experienced. I have serious concerns about whether many of the methods 
utilized by NIOSH are appropriate for use in individual dose 
reconstruction. A claimant should never be penalized for the failure of 
DOE or its contractor to properly monitor their exposures.
    In some instances, the practice of removing badges may be recorded 
in the monitoring records or apparent from discrepancies in those 
records. However, in most instances, the initial report of such 
practices would be made by the claimants or petitioners. The reports by 
petitioners or claimants who experienced or witnessed these practices 
should be given considerable weight when considering such information. 
To the extent that other workers or supervisory personnel can 
corroborate this information is also helpful but should not be required 
(many of these situations occurred over 50 years ago). In follow up, 
NIOSH also must take steps to try to obtain further information about 
these practices from DOE and other workers. The petitioners or 
claimants should not be burdened with having to make the considerable 
effort that is required to access and review DOE records.
    If the reports of removing badges are credible, then this 
information must be taken into account when considering the petition. 
If the practice was not just isolated to a few instances, then NIOSH 
would not be able to adequately perform individual dose reconstruction 
for that group of workers or process and should grant the SEC petition 
unless NIOSH can demonstrate that individual dose reconstruction can be 
done with sufficient accuracy based on other monitoring or exposure 
    In our Advisory Board public meetings in Hanford, the Board heard 
many reports of instances where Hanford workers performed work 
involving very high radiation exposures and were not wearing their 
dosimetry badges. This was apparently a common practice for those 
situations, and supervisory personnel were aware or had approved the 
removal of the badges. These reports were confirmed by several people 
in attendance at the public meeting. In evaluating the SEC petition for 
Hanford, the Advisory Board work group will obtain further information 
about such practices at the Hanford site in order to determine the 
extent of badge removal and will need to take that practice into 
account when evaluating the petition. While it is too early to reach 
any firm conclusions about this practice, what I have learned to date 
at Hanford certainly raises serious doubts about the ability of NIOSH 
to conduct individual dose reconstructions for these groups of workers.

                 [Rocky Mountain News, October 4, 2007]

     Shortcomings Found in Review Process for Ill Nuclear Workers--
         Outside Study Says Federal Officials Ignored Evidence

                            (By Laura Frank)

    Some former Rocky Flats employees and others who have sought 
Federal compensation for ill nuclear weapons workers have long 
suspected that the government ignored information they provided to 
prove their cases.
    A draft of the first outside review of that process says their 
suspicions may be right.
    Investigators listened in as government officials conducted three 
final interviews with workers or their survivors.
    This ``close-out interview'' gives claimants their last chance to 
make sure the government has all the necessary information to determine 
their past exposures to toxic or radioactive substances. The interview 
is also the first time workers or their survivors see the information 
compiled by the government as it assesses whether a claimant's work 
caused the illness.
    In two of the three observed interviews, claimants provided 
significant information to government officials. The officials promised 
to consider it, but never did, the review found.
    The draft report, presented Tuesday to the White House Advisory 
Board on Radiation and Worker Health, says the process has ``serious 
gaps'' and ``does not ensure'' claimants concerns are fully addressed. 
It's up to the board now to decide how to proceed.
    ``It appears to the claimants that the government is ignoring the 
evidence they're submitting,'' said Terrie Barrie, of Craig, a national 
advocate for ill workers like her husband George, who helped build 
atomic bomb triggers at the former Rocky Flats plant northwest of 
    ``If they have to develop new procedures because of this, they're 
going to have to reopen cases all over again,'' she said.
    Wanda Munn, who heads the board subcommittee that received the 
report, said she could not predict what may happen next. No decision 
will be made before the group's next meeting on Dec. 6.
    Investigators observed the interviews with the permission of the 
claimants and the National Institute of Occupational Safety and Health.
    The report reads: ``The evidence is that the underlying data were 
not reviewed in one case, and no attempt was made to obtain the 
relevant reports in the other.''
    The report notes that in one case, the final decision letter 
actually predated the close-out interview, ``despite the fact that the 
employee provided detailed new information during the close-out 
    ``What are the chances we just happened to pick three cases at 
random and bam, bam, this happened? '' said John Mauro, project manager 
for SC&A, the contractor in charge of the investigation.
    He said the presidential advisory board will now have to determine 
whether the problems are pervasive.
    Tell us what you think of the most recent review of compensation 
for ill nuclear weapons workers. Are you a former nuke worker--or a 
survivor--who has applied for Federal compensation under the Energy 
Employees Occupational Illness Compensation Program Act, or EEOICPA? 
Tell us your experiences with the process here, including your name and 
the site where you worked.
    Tell us your story.

    [Whereupon, at 11:37 a.m., the hearing was adjourned.]