[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE
FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE
CREATED THIS PROGRAM? (PART II)
=====================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MAY 4, 2006
__________
Serial No. 109-151
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
_____
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27-335 PDF WASHINGTON : 2006
_________________________________________________________________
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
STEVE KING, Iowa SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas HOWARD L. BERMAN, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia MAXINE WATERS, California
DANIEL E. LUNGREN, California MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California
George Fishman, Chief Counsel
Art Arthur, Counsel
Allison Beach, Counsel
Cindy Blackston, Professional Staff
Nolan Rappaport, Minority Counsel
C O N T E N T S
----------
MAY 4, 2006
OPENING STATEMENT
Page
The Honorable John N. Hostettler, a Representative in Congress
from the State of Indiana, and Chairman, Subcommittee on
Immigration, Border Security, and Claims....................... 1
The Honorable Sheila Jackson Lee, a Representative in Congress
from the State of Texas, and Ranking Member, Subcommittee on
Immigration, Border Security, and Claims....................... 2
WITNESSES
The Honorable Zach Wamp, a Representative in Congress from the
State of Tennessee
Oral Testimony................................................. 5
Prepared Statement............................................. 7
The Honorable Tom Udall, a Representative in Congress from the
State of New Mexico
Oral Testimony................................................. 7
Prepared Statement............................................. 9
The Honorable Doc Hastings, a Representative in Congress from the
State of Washington
Oral Testimony................................................. 11
Prepared Statement............................................. 14
The Honorable Mark Udall, a Representative in Congress from the
State of Colorado
Oral Testimony................................................. 17
Prepared Statement............................................. 19
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Maxine Waters, a
Representative in Congress from the State of California........ 36
Sample report sent to claimants regarding their dose
reconstruction, submitted by the Honorable Tom Udall, a
Representative in Congress from the State of New Mexico........ 37
``Web Site Disclosure Statement (Biosketch)'' of Roger B. Falk,
employee of Oak Ridge Associated Universities, submitted by the
Honorable Mark Udall, a Representative in Congress from the
State of Colorado.............................................. 47
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE
FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE
CREATED THIS PROGRAM? (PART II)
----------
THURSDAY, MAY 4, 2006
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:35 a.m., in
Room 2141, Rayburn House Office Building, the Honorable John N.
Hostettler (Chairman of the Subcommittee) presiding.
Mr. Hostettler. The Subcommittee will come to order.
Today's hearing is the second in a series of oversight
hearings the Subcommittee will be holding on the Energy
Employees Occupational Illness Compensation Program Act, or
EEOICPA.
When we announced the Subcommittee was holding the first
EEOICPA hearing, several Members of Congress who have
facilities covered under that act, contacted the Subcommittee
to inquire whether there would be an opportunity for Member
testimony about the program.
There are facilities covered under this nuclear worker
compensation program in 37 States and U.S. territories.
This hearing was scheduled to give those Members that
contacted the Subcommittee that opportunity to testify on
behalf of their constituents who are subject to the processes
of the program.
The Members of Congress appearing today represent
facilities across the country: Tennessee, New Mexico, Colorado
and Washington State. All four represent facilities where a
petition has been filed for workers to become members of the
Special Exposure Cohort, SEC. If designated a SEC member,
individuals do not have to go through dose reconstruction and
will receive a $150,000 lump sum payment plus medical benefits
if diagnosed with 1 of 22 radiosensitive cancers.
At our last oversight hearing on this matter, an OMB
``passback'' document was discussed that laid out five options
for consideration with regard to the SEC petition process and
review mechanisms. The purpose of those five options was to
contain costs associated with the granting of new SEC
petitions.
It is anticipated that the Members of Congress testifying
today may weigh in on the impact they believe implementation of
those options would have on the claimant community in their
districts, as well as across the country. As I indicated at our
last hearing, hopefully, we will all be better educated about
this program by the end of the hearing, as well as more clearly
see the priority issues that need to be addressed in subsequent
hearings.
I am sure we will hear today about the problems
consistently faced by claimants when filing a claim or petition
under this program and assist the Congress in targeting the
issues with the highest priority for reform.
At this time, the Chair recognizes the Ranking Member from
Texas, Ms. Jackson Lee, for 5 minutes for purposes of an
opening statement.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I am
very delighted that we were able to work together on what I
think is a very important hearing.
It is important because Members are here because potential
changes are directly impacting constituents that they
represent. That is the basis of this process, to have the
opportunity to listen to legislators in order to make the
correct and appropriate decisions. This Committee has a
responsibility, as the Subcommittee on Immigration and Claims.
Let me thank Mr. Wamp of Tennessee, Mr. Udall of New
Mexico, Mr. Hastings of Washington, and Mr. Udall of Colorado,
for your interest, and of course, your insight on effectively
helping to secure safety and responsible response by this
Government to those who have been injured by this particular
occupational illness.
From the World War II Manhattan Project to the present,
thousands of nuclear weapons workers have been employed to
develop, build and test nuclear weapons. Many of them exposed
to radiation day after day for years, and the vast majority of
these workers were employed at facilities that were owned and
operated under the direct regulatory control of the United
States Government. The Energy Employees Occupational Illness
Compensation Act of 2000 established a Federal remedy for these
workers. If they have contracted radiation-related cancers,
beryllium disease, or silicosis, they may be eligible for a
lump sum payment of 150,000 in addition to prospective medical
benefits.
For radiation-related cancer claims the Department of
Health and Human Services, through the National Institute of
Occupational Safety and Health, is required to estimate a
worker's radiation dose. It is not always possible, however, to
estimate a worker's radiation dose. And during the earlier
years of the nuclear weapons programs, especially between the
1940's and 1970's, some workers were not monitored, and the
monitoring that was done sometimes was inadequate. Also, some
records have been lost or destroyed.
So this act is an act that provides wholeness. It provides,
if you will, a safety net, provides a remedy for cases where it
is not feasible to estimate radiation doses, and it is clear
from job types that the worker's health may have been in danger
by radiation exposure.
Workers may petition to be administratively designated as a
Special Exposures Cohort, which establishes an unrebuttable
presumption that certain cancers are work related. Many of the
Special Exposure Cohort are eligible for benefits if they have
one of 22 specified radiosensitive cancers, and in general if
they have worked at a covered facility for at least 1 year in a
job that exposed them to radiation. Special Exposure Cohort
petition goes through an initial evaluation, and its
recommendation is then reviewed by the Advisory Board before it
goes to HHS Secretary for a decision. I think it is important
to note, Mr. Chairman, that there are overlapping checks and
balances. The Secretary makes a Special Exposure Cohort
designation.
The Administration recently declared its intention to
reduce the number of Special Exposure Cohorts in a memorandum
referred to as an ``Office of Management and Budget passback.''
The passback recommends establishing a White House-led
interagency work group to develop options for administrative
procedures that will contain the growth in the cost and
benefits provided by the program.
At a previous hearing before this Subcommittee on March
1st, 2006, Shelby Hallmark, the Director of Department Labor's
compensation program, stated that cost containment is not a
factor in deciding which claims to pay. But OMB has recommended
the development of cost containment procedures.
Mr. Chairman, I think when you do have this difference of
opinion between executive representatives, it's important for
the Congress to intercede and make a balanced judgment on what
is best for the American people.
I would point out also that specific options are mentioned
in the passback, and these options reflect concern that the
present system is biased in favor of granting Special Exposure
Cohort Status. OMB recommends requiring Administration
clearance of Special Exposure Cohort determination; addressing
any imbalance in membership of President's Advisory Board on
Radiation and Worker Health; requiring an expedited review by
outside experts of SEC recommendations, requiring the agency to
apply conflict of interest rules and constraints to the
Advisory Board's contractor, and requiring that the agency
demonstrate that its site profiles and other dose
reconstruction guidance are balanced.
If these problems are existing within the system for
granting Special Exposure Cohort status, the problems should be
identified and corrected under the present umbrella, under the
present structure. The objective of the passback
recommendations, however, is to implement cost containment
methods, not to identify and correct problems. The Department
of Labor has said there are no cost containment problems.
I will close by pointing out that bias in favor of
compensation is not a flaw in the system for granting benefits.
The act intends for the workers to have the benefit of the
doubt when their claims are being adjudicated because of the
difficult process of ascertaining their present situation.
I will just simply say to you, Mr. Chairman, that there are
family members who also would like to testify. We hope to
submit their testimony into the record, but I can say to you
that there are devastating cases that we need to respond to.
And I yield back.
Mr. Hostettler. I thank the gentlelady, and without
objection, the comments from family members, as well as others,
can be entered into the record, and the record should also
reflect that in the future hearings we will have claimants as
well as family members testify before the Subcommittee.
[The information referred to was not available at the time
this hearing was printed.]
Mr. Hostettler. Let me now turn to introductions of our
panel of witnesses, a very distinguished panel of witnesses, I
will say at the outset. As I was looking at my notes for the
introduction, I did have to do some rearranging of my notes, in
that my notes had Congressman Tom Udall and Congressman Mark
Udall sitting next to each other, but I guess some action was
taken on the part of the Subcommittee staff to separate the
two. And I don't know what's behind that. [Laughter.]
But I guess Congressman Doc Hastings will know more about
that by the end of this hearing.
Ms. Jackson Lee. He's the referee.
Mr. Hostettler. That's right.
Congressman Zach Wamp is currently serving his sixth term
representing Tennessee's 3rd District. Before coming to
Congress, the Congressman spent 12 years as a small business
man and commercial real estate broker. He is a Chattanooga
native, and he and his family still make Chattanooga their
home.
Congressman Wamp has three facilities in his district, the
Y-12 National Security Complex, the Oak Ridge National Labs,
and the now closed Oak Ridge K-25 Gaseous Diffusion Plant.
An SEC petition and recommendation for a partial Special
Cohort for some Y-12 workers is being evaluated by the Advisory
Board on radiation and worker health, and several others are
being evaluated by NIOSH. K-25 facility workers were designated
SEC members when the law was enacted in 2000. Mr. Wamp was a
cosponsor of EEOICPA and testified before the Subcommittee on
the legislation in 2000. Congressman Wamp's district is also
home to Oak Ridge Associated Universities, the primary
contractor performing radiation dose reconstruction and
evaluating Special Cohort petitions.
Congressman Tom Udall is currently serving his fourth term
in Congress, representing the 3rd District of New Mexico. Mr.
Udall graduated from Prescott College, began his education in
law at Cambridge University in England, and ultimately
graduated with a juris doctor from the University of New Mexico
School of Law. He then was the law clerk of Chief Justice
Oliver Seth of the U.S. Tenth Circuit Court of Appeals, served
as Assistant Attorney General in the Criminal Division, and was
Chief Counsel to the Department of Health and Environment. Tom
Udall served as New Mexico's Attorney General. He comes from
the Udall family, who is famous for their public service. His
father, Stewart Udall, was elected four times to Congress, and
then was Secretary of the Interior for Presidents Kennedy and
Johnson.
Congressman Tom Udall represents Los Alamos National
Laboratory, one of the Nation's two nuclear weapons
laboratories. An SEC petition is pending at Los Alamos. Tom
Udall was a cosponsor--and my notes got separate here--and
testified before the Subcommittee in 2000.
Congressman Doc Hastings represents the 4th District of
Washington State. This is his sixth term in the U.S. House of
Representatives. Before coming to Washington, Congressman
Hastings, a native and current resident of Pasco, Washington,
spent 8 years in the Washington State Legislature.
Prior to his political career, he studies business
administration at Columbia Basin College and at Central
Washington University, and then ran his family's business,
Columbia Basin Paper and Supply in Pasco.
The Hanford facility is located in Congressman Hastings'
district. An SEC petition is pending before NIOSH for
individuals who worked at Hanford in the 1940's. The Hanford
Reservation is also home to Pacific Northwest Laboratories.
Congressman Mark Udall is serving his fourth representing
Colorado's 2nd Congressional District. A graduate of Williams
College, he began his professional career with the Colorado
Outward Bound School as a course director and educator, and
then as executive director.
Mark Udall entered politics in 1997 as a representative in
the Colorado State House. He then followed in his father's,
``Mo'' Udall's footsteps, a Member of Congress for 30 years, by
running for Congress.
Congressman Mark Udall represents the individuals who
worked at the Rocky Flats Plant facility. It was closed and
cleanup finished in 2005. An SEC petition and a NIOSH
recommendation on that petition are currently being evaluated
by the Advisory Board on Radiation and Worker Health. Mr. Udall
was a cosponsor of EEOICPA in 2000, and testified before the
Subcommittee in 2000.
Once again, gentlemen, thank you for your presence here. At
this time we will turn to your testimony. As you all are
painfully familiar with the 5-minute rule, if you can summarize
your remarks within that 5 minutes, and without objection, your
written testimony will be made a part of the record.
The Chair recognizes Congressman Wamp from Tennessee.
TESTIMONY OF ZACH WAMP, A REPRESENTATIVE IN CONGRESS FROM THE
STATE OF TENNESSEE
Mr. Wamp. Mr. Chairman, beyond the traditional gratitude to
the Subcommittee, the Chairman and Ranking Member and all the
Members, for the ability to appear here today, I just want to
say to you, Mr. Chairman, rarely do you see a Subcommittee
Chairman, particularly from a State who is not directly
affected by a program like this, take such a personal interest,
and I'm grateful that you have dug into the details here, and
with the person to your immediate right, really learned a lot
about this program that sometimes Members of Congress would not
take the time to learn.
Our Nation's nuclear workers and their families deserve
fair and timely compensation for work-related illnesses. Having
met with many of these workers over the years, my heart goes
out to all those who have sacrificed their health for the
defense of our country. I've worked hard with a bipartisan
group in Congress to compensate workers who were harmed by
their work at Oak Ridge and other DOE facilities. Our efforts
paid off with the creation of EEOICPA.
EEOICPA has been a tremendous success in many ways.
According to the Department of Labor, more than $330 million in
compensation has been paid to some 2,000 Tennessee workers or
their families. Since the beginning of this program the Federal
Government has also made more than $25 million in medical
payments to sick workers in our State. We celebrate the
successes in helping these families who sacrificed so much.
But it is clear that not everyone Congress intended to be
compensated by this program has been helped. Since passage of
EEOICPA, my office has worked with hundreds of East Tennesseans
to guide them through this new and complex payment system. The
compensation program took the Department of Energy and the
Department of Labor much too long to set up.
Many former workers say the entire process still takes too
long. My offices report that difficult cases often take several
years to complete. Some claimants feel they can't get adequate
updates from NIOSH, the National Institute for Occupational
Safety and Health. Many of my constituents want to see changes
made in the law.
I have the highest regard for the work of the Oak Ridge
Associated Universities, which is playing a key role in the
compensation process. ORAU was awarded the contract to provide
radiation dose reconstruction in support of the EEOICPA
program. This organization has an exceptional track record of
quality performance in its work.
ORAU has completed almost 14,000 dose reconstructions to
date, and approximately one in four of the dose reconstruction
claims have qualified for compensation. To perform this work,
ORAU has gathered nearly 2 million pages of records and
developed more than 150 detailed documents about DOE
facilities.
While there have been some major challenges in performing
this complex work, ORAU tells me that when there is a question
about an exposure, the benefit of the doubt goes to the worker.
When assumptions or estimates are necessary, they made to favor
the claimant.
ORAU's goal is to use the very best science currently
available to produce dose reconstructions with sufficient
accuracy to fairly determine compensation under the EEOICPA
program.
While parts of EEOICPA have been slow to evolve, it is my
personal hope that the program will become an accurate and
efficient tool to compensate workers for their illnesses. This
was the intent of our original legislation.
As your Subcommittee continues to investigate this process,
I hope to work with you, Mr. Chairman, and the Members of this
Subcommittee, and your staff, to provide you with good
information from my constituents about their experiences to
help you make changes to improve the program, so that no
justified workers are left without proper compensation for
their essential services to our Nation.
I thank you again for bringing attention to this important
issue, and for allowing me to testify here today, and I yield
back.
[The prepared statement of Mr. Wamp follows:]
Prepared Statement of the Honorable Zach Wamp, a Representative in
Congress from the State of Tennessee
I would like to thank Chairman Hostetler, Ranking Member Jackson
Lee and members of the subcommittee for inviting me to testify here
today on this very important issue of the Energy Employees Occupational
Illness Compensation Program Act (EEOICPA).
Our nation's nuclear workers and their families deserve fair and
timely compensation for work-related illnesses. Having met with many of
these workers over the years, my heart goes out to all those who have
sacrificed their health for the defense of this country. I have worked
hard with a bipartisan group in Congress to compensate workers who were
harmed by their work at Oak Ridge and other DOE facilities. Our efforts
paid off with the creation of EEOICPA.
EEOICPA has been a tremendous success in many ways. According to
the Department of Labor, more than 330 million dollars in compensation
has been paid to some 2,000 Tennessee workers or their families. Since
the beginning of this program, the federal government has also made
more than 25 million dollars in medical payments to sick workers in our
state. We celebrate the successes in helping these families who
sacrificed so much.
But it is clear that not everyone Congress intended to be
compensated by this program has been helped. Since passage of EEOICPA,
my office has worked with hundreds of East Tennesseans to guide them
through this new and complex payment system. The compensation program
took the Department of Energy and the Department of Labor much too long
to set up.
Many former workers say the entire process still takes too long. My
offices report that difficult cases often take several years to
complete. And some claimants feel they can't get adequate updates from
NIOSH, the National Institute for Occupational Safety and Health. Many
of my constituents want to see changes made in the law.
I have the highest regard for the work of the Oak Ridge Associated
Universities which is playing a key role in the compensation process.
ORAU was awarded the contract to provide radiation dose reconstruction
in support of the EEOICPA program. This organization has an exceptional
track record of quality performance in its work.
ORAU has completed almost 14 thousand dose reconstructions to date
and approximately one in four of the dose reconstruction claims have
qualified for compensation. To perform this work, ORAU has gathered
nearly two million pages of records and developed more than 150
detailed documents about DOE facilities.
While there have been some major challenges in performing this
complex work, ORAU tells me that when there is a question about an
exposure, the benefit of the doubt goes to the worker. When assumptions
or estimates are necessary, they are made to favor the claimant.
ORAU's goal is to use the very best science currently available to
produce dose reconstructions with sufficient accuracy to fairly
determine compensation under the EEOICPA program.
While parts of EEOICPA have been slow to evolve, it is my personal
hope that the program will become an accurate and efficient tool to
compensate workers for their illnesses. This was the intent of our
original legislation.
As your subcommittee continues to investigate this process, I would
hope to work with you, Mr. Chairman, the members of your subcommittee
and your staff to provide you with good information from my
constituents about their experiences to help you make changes to
improve the program, so that no justified workers are left without
proper compensation for their essential services to our nation.
I thank you again for bringing attention to this important issue
and for allowing me to testify here today.
Mr. Hostettler. Thank you, Congressman Wamp.
The Chair now recognizes Congressman Tom Udall for 5
minutes.
TESTIMONY OF TOM UDALL, A REPRESENTATIVE IN CONGRESS FROM THE
STATE OF NEW MEXICO
Mr. Tom Udall. Thank you, Mr. Chairman. We appreciate you
holding this hearing, and very much appreciate being here
today. I'd also like to thank you for your work on this issue,
and appreciate Sheila Jackson Lee's interest in this issue
also.
My constituents and I know we have friends on this
Committee. Mr. Chairman, I have submitted longer remarks for
the record, but will highlight some of my points in the time
allotted.
I represent constituents who are sick and dying as a result
of being exposed to harmful doses of radiation by working at
Los Alamos National Laboratory. These men and women are, and
have been, awaiting compensation. The creation of the Energy
Employees Occupational Illness Program came with promises to
provide timely, uniform and adequate compensation to these Cold
War veterans.
Unfortunately, Mr. Chairman, we are finding that these
promises are not being met. In fact, at LANL, in the last 5\1/
2\ years since enactment of the EEOICPA, only 326 out of 800
dose reconstruction cases have been completed. In many LANL
cases, delays in receiving compensation stem from missing or
misreported dosimetry measurements.
As an example, I have with me an internal dose chart for
one of my constituents that I would like to submit for the
record. This constituent began working at LANL in 1948, and his
file shows many exposures to plutonium, americium and other
toxic substances. In this particular case, the information
submitted by LANL to NIOSH for dose reconstruction, omits
measurements for the year 1950. Looking at other documents in
his file, however, shows that he experienced numerous exposures
to radiation in 1950. This same internal dosimetry chart
contains measurement estimates for the claimant through the
year 1999. Sadly, the claimant died in 1982.
It's my understanding that NIOSH may currently be using
additional data, but this information has not been shared with
any of my constituent claimants.
Due to the unreliable nature of radiation dose records such
as this example in these early years of LANL operations, a
petition has been submitted to NIOSh for a Special Exposure
Cohort. The SEC would cover all Los Alamos workers from 1944 to
1971. I introduced legislation during the 108th Congress, and
am planning to introduce again, calling for SEC status for LANL
claimants.
My bill is only one of several SEC measures proposed by
many in Congress. Unfortunately, as we know, legislation and
SEC petitions face an uphill battle. The uphill battle was
apparent even before the OMB passback memo recently surfaced,
discussing efforts to quote--and I quote from the memo--
``contain the growth and the cost of benefits provided by the
program.''
This is clearly contrary to the intention of the program
and must be fought. By itself, the cost containment mentioned
in the passback memo is alarming. Coupled with the recent
actions in the President's Advisory Board on Radiation and
Worker Health, it is downright disturbing.
Recently, one of my constituents, Richard Espinoza, was
removed from the Advisory Board without any apparent cause. I'm
concerned that his removal, and one other Board member, has
shifted the prospectus of the Board from one that was evenly
balanced to one that is hostile to claimants.
One other point I would like to touch on, Mr. Chairman, is
the NIOSH contract with ORAU. Any Federal contract that
balloons from 70 million to 200 million should be closely
examined, and we commend the Committee for looking into this.
Huge administrative costs for troubling results are
inexcusable.
Also, of the 19-member ORAU team responsible for the LANL
site profile, 7 are current, and 3 are retired employees of
LANL's radiation safety programs. 8 of these 10 employees do
not have conflict of interest disclosure statements posted on
the ORAU website. This is in contravention of ORAU's contract
with NIOSH. The failure to police conflict of interest, and
recycling those who defended these claims for the Government,
is unacceptable.
I'm eager to work with my colleagues to address these and
other glaring deficiencies in the implementation of the
EEOICPA. We must address them so that these courageous Cold War
veterans can finally receive the relief and compensation they
so rightly deserve.
Thank you again for allowing me to testify, and I welcome
any questions the Committee may have.
[The prepared statement of Mr. Tom Udall follows:]
Prepared Statement of the Honorable Tom Udall, a Representative in
Congress from the State of New Mexico
Mr. Chairman, thank you for inviting me to testify today on behalf
of my constituents in New Mexico who are sick and dying while awaiting
compensation as a result of their work at our nation's nuclear weapons
facilities.
My congressional district contains many DOE contractor facilities,
the largest of which is the Los Alamos National Laboratory which has
been in operation since 1942. Scientists at LANL developed the atomic
bomb and today the lab serves as one of two major weapons design
laboratories. I, along with my New Mexico colleague Senator Jeff
Bingaman, hosted the first public hearings in New Mexico on this issue
and worked to ensure that our constituents would be covered as part of
the Energy Employees Occupational Illness Program Act of 2000. I
supported passage of this legislation with the understanding that
EEOICPA would provide ``timely, uniform, and adequate'' compensation to
these Cold War veterans.
Unfortunately, the agencies implementing this program have not
fulfilled the promise of a ``timely, uniform and adequate'' program
that was made to the cold war veterans of the national labs in New
Mexico when the law was enacted. Progress has been slow for Subtitle E
claims for those made ill by exposure to toxic substances at DOE
facilities. In the 5\1/2\ years since enactment, only 326 out of 800
dose reconstruction cases have been completed at LANL.
At the time of EEOICPA's passage, DOE contractor employees and
their families expected that the involvement of NIOSH, an agency of the
Department of Health and Human Services, would carry out radiation dose
reconstructions used for compensation decisions in a manner independent
of the Department of Energy and its contractors. To maintain public
confidence, Congress allowed only a minor role for DOE--mainly records
recovery. The DOE's historically flawed radiation protection programs
gave rise to the problem, and secrecy policies kept information
concealed for decades.
Under EEOICPA, DOE is explicitly excluded from the development of
methods for dose reconstruction. DOE is supposed to be confined to the
retrieval of information. However, NIOSH contracted with Oak Ridge
Associated Universities (ORAU) and Battelle, two large DOE contractors
to carry out dose reconstruction work, and evaluate SEC petitions. The
ORAU Team is dominated by consultants and subcontractors entwined with
DOE and site contractors. In some cases, these consultants have pre-
EEOICPA records of working as expert witnesses against state workers'
compensation claimants at the very sites where they now perform dose
reconstructions. Nowhere in the legislative history of EEOICPA did we
envision turning this program back to the DOE site technicians who were
part of the programs which necessitated passage of EEOICPA in the first
place.
My constituents have raised concerns about the integrity of data
which is being provided to NIOSH. For example, at Los Alamos, data on
internal doses of plutonium and americium which NIOSH uses in dose
reconstruction comes from a data base that was assembled by the site
contractor several years before enactment of EEOICPA. NIOSH has not
systematically compared these numbers to primary historical
documentation of contamination episodes, a process called verification
and validation (or ``V and V''), despite the fact that the primary
historical documentation is available at Los Alamos. Some of my
constituents' dose reconstructions entailed little more than NIOSH
``plugging and chugging'' the numbers provided by the site contractor.
Other reports consist of a series of default assumptions made in the
absence of recorded badge readings. Public confidence is eroded every
time NIOSH reports a radiation dose that is simply cut and pasted from
the site contractor's records.
My offices in New Mexico stay busy assisting these EEOICPA
claimants. In an effort to determine why so many of my constituents'
claims are being denied, it appears that in many cases, dosimetry
measurements are missing for entire years of employment and in other
cases those measurements are misreported. I have with me an internal
dose chart for one of my constituents who began his work at LANL in
1948 and whose file contains many exposures to plutonium, americium and
other toxic substances. I would like to submit this chart for the
record if I may. In this particular case, the information submitted by
LANL to NIOSH for dose reconstruction omits measurements for the year
1950, although elsewhere in his file, there are documents indicating
that he experienced numerous exposures to radiation in 1950. This same
internal dosimetry chart contains measurements for the claimant through
the year 1999. Unfortunately, the claimant died in 1982.
This problem is further illustrated in another example from my
congressional district. A New Mexico legislator, the late Ray Ruiz,
grew up in Los Alamos and worked at the Lab as an ironworker in his
younger days. His wife, Harriet Ruiz, who now serves in the state
legislature, remembers a period of time in about 1964 when Ray
accidentally received an internal dose of radiation at work. Some of
the standard procedures for a worker who was ``hot'' in those days were
followed--removal from radioactive work areas, periodic monitoring. At
home, Harriet remembers how they were trying to get pregnant for a
third time. Ray's sperm count, in turned out, was so low for him to be
considered ``sterile,'' according to one of the doctors they visited.
They gave birth to a healthy baby in 1966.
Decades later, following Ray's passing due to asbestos-related
cancer, Harriet obtained his medical file from the Lab. Curiously, the
radiation dosimetry report shows ``all zeroes'' for that period of time
in the mid-1960's. The file contains no documentation of the internal
contamination episode.
State Representative Ruiz is now spearheading a petition to NIOSH
for a special exposure cohort to cover all Los Alamos workers from 1944
to about 1971, due to the unreliable nature of radiation dose records
in these early years of LANL operations.
In addition, during the last Congress I introduced, and am planning
to introduce again, legislation calling for an SEC status for LANL
claimants, but my bill is one of several SEC measures proposed by
members of Congress. My bill and the SEC filed by Harriett Ruiz are
both headed for an uphill battle. I believe that any attempts by the
White House to influence SEC designations by ``tilting'' the membership
of the President's Advisory Board on Radiation and Worker Health or
introducing additional bureaucratic layers in the approval process,
would be devastating to future SEC petitions.
I am very concerned about the current composition of the Advisory
Board. 42 USC 7384(o)(a)(2) requires ``a balance of scientific, medical
and worker perspectives.'' Recently, one of my constituents, Richard
Espinosa, was removed from the Advisory Board without any apparent
cause. The OMB Passback for the Department of Labor indicates a desire
to contain the cost of benefits under EEOICPA. One of the mechanisms
identified was to ``address any imbalance in the membership for the
Advisory Board on Radiation and Worker Health.'' I do not know if this
explains his removal, but we are troubled that of the eleven members
currently on the board, only two are workers. A fair reading of the law
would require 4 workers out of 12 members.
A similar bias seems to exist on the 19-member ORAU team
responsible for the LANL site profile. This team has a majority
membership of seven current and three retired employees of LANL's
radiation safety programs. Eight of these ten employees do not even
have conflict of interest disclosure statements posted on the ORAU
website, in contravention of ORAU's contract with NIOSH.
In addition, the NIOSH contract with ORAU is of grave concern. Any
federal contract that mushrooms from $70 million to $200 million should
be closely examined, and we commend the Committee for looking into
this. The draft site profile document for Los Alamos prepared by ORAU
for NIOSH is riddled with omissions and erroneous assumptions. For
example, the site profile lacks credibility on the simple issue of
collective (``population'') doses incurred by the workforce in years
past. For selected years during the 1970's and early 1990's, the
collective doses in the site profile are 10% to 50% lower than those
reported at the time by DOE in a widely available series of reports.
In sum, huge administrative costs for troubling results are
inexcusable. The failure to police conflicts of interest and recycling
those who defended these claims for the government is unacceptable.
To remedy these glaring deficiencies in the implementation of
EEOICPA, I am eager to work with my fellow members of Congress to:
1. Restore balance to the Advisory Board on Radiation and
Worker Health by amending the Act to give Congress a role in
appointing members of the Board.
2. Ensure that the Advisory Board and its audit contractor
have the funds they need to do the job. DOL has proposed
cutting these funds in its FY 07 budget request.
3. Impose and enforce stringent conflict of interest criteria
on ORAU and its staff, and install leadership in NIOSH that
will restore the necessary expertise and independence to make
timely and credible decisions.
4. Adopt authorizing legislation to establish a technical
assistance program for citizens, workers and families seeking
to file petitions for Special Exposure Cohort status. Ordinary
citizens are at a serious disadvantage when it comes to
retaining technical expertise, and are ill equipped to command
the necessary expertise in health physics. Several universities
would be well-qualified to provide this technical assistance.
I want to thank the Chairman and Ranking Member for holding this
hearing today and for your efforts in conducting oversight on the
Energy Employees Occupational Illness Compensation Program Act.
I look forward to working with you and my fellow members of
Congress as we explore ways to remedy these glaring deficiencies so
that these courageous Cold War veterans can finally receive the relief
and compensation they so rightly deserve.
Mr. Hostettler. Thank you. Without objection, your paper
will be submitted for the record.
The Chair now recognizes Congressman Hastings for 5
minutes.
TESTIMONY OF DOC HASTINGS, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF WASHINGTON
Mr. Hastings. Thank you very much. Chairman Hostettler and
Ranking Member Jackson Lee and Members of the Committee, I
appreciate your holding this hearing and your interest in
making certain that this compensation program is working for
those who had suffered illness due to their work at Federal
nuclear site, including Hanford in my district.
Let's not forget that the nuclear production work performed
at these sites and at Hanford helped with World War II and the
Cold War. We owe a huge debt of gratitude to those workers for
their contributions to our Nation's security. As we do with our
veterans, the Federal Government has a moral responsibility to
aid in the care of those who have been made ill as a direct
result of their work in service to our Nation.
With my support, Congress enacted legislation in October of
2000 to establish a compensation program for these workers, and
I was pleased to stand with Energy Secretary Bill Richardson at
the unveiling of the new Energy Employees Occupational Illness
Compensation Program.
However, nearly 5 years since this program began accepting
claims in July of 2001, it has not lived up to the expectations
of Congress and it has left thousands of workers and their
families waiting and wondering. While a great deal of taxpayer
money has been spent administering this program, results have
been achieved for only a small percentage of the workers.
A 2004 GAO report noted that during the first 30 months of
the program, the Department of Energy had completely processed
only 6 percent of the cases that had been filed under that part
of the program. That means 94 percent of those who had filed a
claim were left with no decision after 2\1/2\ years.
The record was completely unacceptable, and as a result,
Congress responded. With my support, the Department of Energy's
portion of the program was transferred to the Department of
Labor. Given the Labor Department's extensive experience with
compensation claims, we felt this change would result in a
quicker processing of workers' claims. Unfortunately, the
progress is still slow, and thousands still wait.
Today, nearly 6 years after the program was created, only
10.5 percent of the claims filed nationally under this
transferred portion of the program have been processed. And at
Hanford, less than 10 percent of the cases have been processed.
We all recognize that this is a complex program. It often
involves going back in time some 60 years to try to assess
radiation exposure with little records to guide decisions. Yet,
this is no excuse.
But to give a little perspective, consider this: In 1943,
during the height of World War II, in the middle of a remote
desert in central Washington State, and under the secrecy of
the Manhattan Project, 51,000 workers labored to build the
Hanford site infrastructure and the B Reactor, the world's
first full-scale plutonium production reactor. It took 13
months to construct the B Reactor, which produced the nuclear
material for the first ever nuclear explosion, the Trinity test
in New Mexico, and for the bomb that dropped on Nagasaki that
helped win the Second World War.
Mr. Chairman, if workers can build the world's first
nuclear reactor in 13 months starting from scratch, surely the
Federal Government should be capable of getting these claims
processed after 5 years. Unfortunately, this has not been the
case.
The slow pace of claims processing is not the only concern.
Mr. Chairman, as you have addressed in your previous hearings
on this issue, the Office of Management and Budget has
exchanged documents with the Department of Labor that are
focused upon controlling cost. There is nothing wrong with
controlling cost. But unfortunately, the focus is not on the
cost associated with the Department's administration of the
program or making the bureaucracy function more efficiently,
where the emphasis ought to be, in my view, but rather on the
payment of compensation to workers for their illness. This
amounts to injecting a political, budgetary element into
independent science and fact-based decisions on the payment of
workers' claims.
As thousands of workers still wait for answers on their
claims, the Government should be looking for ways to make this
program work better, not ways to cut corners and deny workers
their due.
These workers played a vital role in our Nation's defense
for many years. They deserve a timely decision on their claim.
They deserve a fair decision based on scientific facts. And if
it is found that their illness has been caused by their work,
then they deserve just compensation.
Congress reacted to create this program. Congress acted
when DOE failed in its implementation of this program. Our
intent is clear and the law is clear: it is time for these
claims to be reviewed and resolved in a timely manner without
political interference and with a deep respect for the workers
who made these contributions to our Nation at a very real cost
to their health.
Again, I want to thank the Committee for their interest,
and holding this hearing and a series of later hearings on this
issue, and I look forward to working with you on a resolution
to some of the problems that we face.
Thank you very much.
[The prepared statement of Mr. Hastings follows:]
Prepared Statement of the Honorable Doc Hastings, a Representative in
Congress from the State of Washington
Mr. Hostettler. Thank you, Congressman Hastings.
Congressman Mark Udall, you are recognized
TESTIMONY OF MARK UDALL, A REPRESENTATIVE IN CONGRESS FROM THE
STATE OF COLORADO
Mr. Mark Udall. Thank you, Mr. Chairman. I too want to
associate myself with my colleagues here on the panel, thanking
you and Ranking Member Jackson Lee for your leadership on this
very important issue.
If I might, I'd turn my attention and the Subcommittee's
attention to the situation at Rocky Flats and provide you with
a little bit of background there.
Many of the Coloradans who worked there, like those who
worked at other nuclear weapons plants, were exposed to
beryllium, radiation and other hazards, and as a result, many
of them died and others are suffering. Along with this team
here, I've worked, since I came to Congress, to bring a measure
of justice to these Cold War veterans.
And that is the purpose, as you heard, of the Energy
Employees Occupational Illness Compensation Program. And with
other Members on both sides of the aisle, I was an original
sponsor of that legislation, and I'm very concerned about how
it's being implemented.
I have a particular concern about the deficiencies of the
exposure records and other information regarding Rocky Flats
workers who have filed claims for compensation.
To address that problem, I've introduced legislation to
include Rocky Flats workers under the act's Special Exposure
Cohort. And with other members of the Colorado delegation, I've
been seeking assurances from the Administration that their
consideration will be given to a pending petition to include
Rocky Flats workers in the cohort.
So I was concerned when the President's latest budget said
that the Administration expects a reduction of about $686
million in compensation payments in fiscal year 2007, and my
concern became alarm, again, along with all my fellow
panelists, when I saw the OMB passback document, indicating the
Administration plans to take administrative action to change
the procedures for handling SEC petitions.
Mr. Chairman, I think you put it well in a previous hearing
when you said the OMB documents ``sets out a plan to base SEC
status approvals on budget concerns rather than the scientific
basis mandated by law.'' In my opinion, that hits the nail
right on the head.
The OMB document outlines an outrageous attempt to subvert
congressional intent at the expense of Cold War veterans, who
as you noted, ``had the least knowledge of how hazardous their
work conditions really were because of the lack of exposure
information in their cases.''
On March 16th, Senator Ken Salazar wrote to Secretaries
Chao and Leavitt and to Joshua Bolten, who was then the OMB
Director. In the letter we said that we agreed with your
assessment of the OMB document, Mr. Chairman, and asked for
prompt answers to several specific questions about it.
Number one, we want to know whether the working group
mentioned in the OMB document had been established and whether
some or all of the options mentioned in the document had been
adopted. And two, we asked what steps the Administration would
take to assure Congress and the public that it would fully
comply with the letter and spirit of the compensation law. So
far we have not received an answer from the Labor Department,
from the Department of Health and Human Services, or from OMB.
I think you know, and the Members of the Subcommittee know,
Mr. Chairman, this is not just about money. It is about the
Government's honor and the honor of our country. These nuclear
weapons workers served America well, and honor demands that
they be well served in return. if there are those who doubt it,
I invite them to come to Colorado and meet with people like
Charlie Wolf, who's one of those who worked out at Rocky Flats.
When he heard about your hearings, Mr. Wolf sent me a
letter that I've attached to this testimony. He's suffering
from a brain tumor so serious that the average life expectancy
of someone with that condition is 54 to 66 weeks. In his letter
he says: ``I'm lucky that I'm a 3\1/2\-year survivor. There are
many others that have cancer that are hoping for help from the
Energy Compensation Act of 2000.''
Mr. Wolf goes on to say: ``Instead of the Cold War heroes
getting support, they now want to cut it even further. The
workers did their job, and again, they're on the losing team.''
Mr. Chairman and Members of the Subcommittee, I would like
to be able to tell Mr. Wolf that he's wrong. I would like to be
able to tell him that Congress meant what it said, and that we
will insist that the law be implemented in the way we intended.
I think and hope that all of you share that goal. If so,
you can count on me to help in any way possible.
Mr. Chairman, in conclusion, I have to tell you, as I saw
this slow-walk process, my heart was really heavy, but when I
heard that you were on the case, along with Ranking Member
Jackson Lee, that load lifted off my heart. But we have a lot
more work to do. There's no time to waste, as the rest of the
panel has mentioned. So thank you so much for the leadership
you are providing.
[The prepared statement of Mr. Mark Udall follows:]
Prepared Statement of the Honorable Mark Udall, a Representative in
Congress from the State of Colorado
Mr. Hostettler. Thank you, Congressman Udall, and you can
assure Mr. Wolf that one way or another, it will get done.
We'll turn now to questions to the panel. Congressman Wamp,
with regard to the problems that have been brought to you by
your constituents that you've mentioned, have you seen positive
efforts made by the Government to resolve those problems? Can
you give the Subcommittee some examples of any improvements
where there doesn't appear to be adequate effort made to
address your constituents' concerns on the other hand?
Mr. Wamp. Well, even though I may have been one of the
later people to come to this, really when Department of Labor
took over the part of this program that they actually
administer, I do think things sped up. So I think that while
all along this was going to be a very problematic process,
clearly, that has helped dramatically. I think, frankly, in
East Tennessee, while there are really a few bad cases that we
have to stay on top of, the overall story is pretty positive.
And that's why I wanted to come today, to say that this GAO
report, I think--or the audit that is pending, I encourage it.
As a matter of fact, I hope it doesn't slow the process down.
Some of these GAO reports take years, and we need to get this
one done in weeks, and move quickly so that we can get to the
bottom of this, and because these people's health and lives are
hanging in the balance, but overall, in East Tennessee we got a
pretty good story, Mr. Chairman.
Mr. Hostettler. Thank you.
Congressman Tom Udall, individuals who ran the dosimetry
programs and/or were expert witnesses for DOE and its
contractors in litigation, are now working for NIOSH providing
input on key decisions and deciding the merits of SEC, Special
Exposure Cohort, petitions, based on their certification of the
validity of the data created under their watch. Should
individuals from a site be restricted from working on claims or
SEC petitions for that site? Does this issue warrant moving
legislation to bar their substantive participation in any
decisionmaking or involvement in the creation of the base
information used in the decisionmaking process at their former
site?
Mr. Tom Udall. Mr. Chairman, I think that that is a very,
very good question, and it goes right to the heart of what the
problem is. In many cases you may have a situation where there
are problems with the dosimetry, with the doses, with the
reconstruction, and in order to be independent and in order to
be fair, I think the thing that should be done is to have
people part of the NIOSH process that are looking at this
independently. I mean, that's the way to go, and I think it
makes good sense to lay that out in terms of legislation.
As I said in my testimony, there are people that are
working on these that haven't even filed conflict of interest
forms that are required by NIOSH, and so we don't even know if
there are any conflicts there. So I would like to see as much
independence as we could get in this process in terms of
dealing with claims, and I'd be happy to work with the Chairman
or the Ranking Member on legislation that would clarify the
kinds of independence that we need.
Mr. Hostettler. Thank you.
Congressman Hastings, HHS asserts that if classified
information must be used to adjudicate a claim, the information
can be used to deny either a claim or a petition for SEC
status, even though the claimant or petitioner's due process
rights to an appeal are limited to the Government representing
them in a closed hearing with the judge. The Government is
also, in that closed hearing, defending their claim's denial,
so they're on both sides of the issue.
Do you think that this is a fair arrangement, and if not--
not only the arrangement about the Government pleading both
sides of the case in a sense--but also in the use of classified
information that the claimant would not have access to? Do you
think that this is a fair arrangement, and if not, do you have
any suggestions about a better way to address the problem?
Mr. Hastings. In short, in the case of a denial, I think
that there has to be a way to somehow bridge that gap. If
somebody is denied a claim simply because it's classified
material and we can't see what the classified material is,
that's obviously not fair to that individual, so there has to
be some way to bridge that gap.
But just to go back--and I am one that believes that
classified information is important--I mean, the whole Hanford
site, for example, was built in 1943. I mentioned in my
testimony there were 51,000 people out there. They didn't know
what they were building. They didn't know what the end result
was. It was all classified. In fact, the day that the bomb was
dropped on Nagasaki, the headlines in at that time the only
weekly paper around was that it was a bomb.
But with the decisions that were made--and I might add also
that during that time period, you know, the waste that was
created was not taken care of properly either because we didn't
know where we were. But now, looking back in retrospect, if
people are hurt because of those actions, just because it's
classified, should not be, in my view, a sole reason for
denial. There has to be a way to bridge that and yet to keep in
mind the purpose of classified material.
Mr. Hostettler. Thank you.
Congressman Mark Udall, the law sets forth 180 days for
NIOSH to evaluate Special Cohort petitions, but NIOSH took
about 425 days from the date they received the Rocky Flats
petition. NIOSH recommended a denial, and the Board is
reviewing the matter. Because the plant has closed and computer
systems have been shut down, claimants are having an extreme
difficulty in accessing their records. Do you have any
suggestions on what can be done to ease the burden on SEC
petitioners when Government delays have stalled the process for
so long that access to records is severely diminished?
Mr. Mark Udall. Thank you, Mr. Chairman, for giving me a
chance to comment on that particular situation. Regarding the
Rocky Flats petition, I'm more, at this point, worried about a
belated rush to judgment resulting in an unwarranted denial of
the petition. That's why I joined Senator Salazar in asking the
Board to delay its decision until the audit contractor can
finish its work. That request has been granted, I'm glad to
say. I think you're aware of that.
But the problem you described is a real one for the Rocky
Flats petitioners, and it's my intent to work with the rest of
the delegation from Colorado, and others, including Members of
your Subcommittee, to see what can be done to improve the
access to records and avoid the chance of a miscarriage of
justice.
And, Mr. Chairman, if I could add one other comment,
perhaps two other comments. I think what's really important
about this--and I know I'm in agreement with all my co-
panelists here--is that there's a moral and an honor component
to this program, but there's also a practical application, and
that is that we're continuing to do this remarkable job of
cleanup across the country. Rocky Flats is closed. I would love
for you to see what these workers did. It's unbelievable. But
we've asked workers across the country in these other sites to
literally work themselves out of a job in order to make their
local communities safer and to make our country safer.
And if we don't keep these commitments to the Rocky Flats
workers, then that sends a real message to workers in other
spots around the country that the Federal Government may not
keep those commitments, and therefore, how can we ask them to
put themselves on the line day-in and day-out, because this
work is dangerous. And in the end, as I mentioned, they work
themselves out of a job, and then they're literally on the
street.
And the second comment I want to make, that's what's worse
about Rocky Flats, is we've done the job, so it's easy to go to
a place which is out of sight, out of mind, and to forget about
these people. That's why I'm so passionate about seeing that
justice is done here.
Thank you.
Mr. Hostettler. Thank you.
The Chair now recognizes the Ranking Member for questions.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I want
to refer to a comment that I made earlier to sort of lay out
the parameters of our problem, and that is that these are both
World War II workers and those who were in the Cold War, and it
is clear--and I think the Administration accepts this as a
fact--that during those years, during the early years of the
nuclear weapons programs, especially between the 1940's and the
1970's, some workers were not monitored, and the monitoring
that was done sometimes was inadequate.
So what we face here are people who factually were working,
can prove that they were exposed, but because of our technology
of the time, may not have the kind of documentation that would
make them in the best position. So this legislation really is
to make them whole in as fair a manner as possible, fair for
the worker and fair for the Governmental process.
Mr. Wamp, I would be interested in your response to
language by the OMB that seems to focus on the passback being a
method of cost containment. The language specifically says,
``to develop options for administrative procedures that will
contain the growth and the cost of benefits provided by the
program.'' Do you agree that we need to have--to contain the
growth in this instance, in the Federal Energy Employee
Occupational Illness Compensation Program Act, and what would
be your suggestions in working with OMB?
Mr. Wamp. This may get me in trouble, but let me just say
that when the program was created, there was a lot of
discussion--and I remember Senator Thompson and I had direct
negotiations with the leadership of the Senate and the House at
the time to try to make way for this program. At that time we
were coming on the heels of the budget surplus, and there was a
lot of talk about how we might, as a country, invest the
surplus that we had on paper at that time. Probably wasn't a
real honest assessment of the surplus, but if you trust the
Government that there was a surplus, we were trying to figure
out what to do with it. And this program was advocated by us as
the right way to invest any surplus.
But there were discussions then that there was not going to
be money in the future based on budget estimates at that time
to actually pay for all those benefits. So there were actually
honest conversations that this money to pay these benefits was
just going to have to go against the national debt.
Why would we go forward with something like that? Because
it's the only right thing to do. You had to do it. You owe
compensation to the people that the Government harmed. It's
like a court order. It's like a judgment, effectively.
My view with OMB is they can talk about cost containment
all they want to, but what this Committee needs to do, and what
this Chairman, I believe, intends to do, is make sure that the
compensation is based on science, who was affected, who
deserves it based on the statute, and get those benefits to
them without concern of the financing of it, or how it impacts
OMB's other considerations. I think that's at the heart of all
this, is if they're entitled to it based on good solid science,
make sure the Administration is limited and effective and
accountable to the program, but make sure the benefits get to
the people without regard to what it does to OMB.
I mean, in all due respect, OMB is not charged with
carrying out certain law. OMB is a function of the executive
branch and budgeting. But we are, and we made the choice to do
the right to these workers, and the costs, frankly, are
secondary consideration. Equity is primary.
Ms. Jackson Lee. Mr. Wamp, I think the two terms that you
use can be an effective tool for this Committee, judgment,
court order, and relief directly to the victims. And one of the
issues that I think the Chairman and myself will look at is
whether the cost is more in administering the program than
getting the benefits directly to the victims. And I think we
all can work collectively on that.
I would just follow up with Congressman Mark Udall to tell
me that the present process of the independent peer review, and
sort of a tiered process under the Health and Human Services,
has been--and then the Advisory Board--is this something that
you're comfortable with? And a follow-up, because you
mentioned, as I know all of the Members have, your
constituents, do we need restrictions on the designation of the
SEC? But in terms of the peer review process, are you
comfortable with that? And then are you comfortable with the
suggestion of putting restrictions on the SEC, which is being
suggested by OMB?
Mr. Mark Udall. Congresswoman Jackson Lee, I'm not
comfortable with the restrictions, as I understand them, that
are being put on the Special Exposure Cohort. I would associate
myself with the remarks of Congressman Wamp, and I'm more than
willing to get in trouble with him, if that's helpful. But I do
believe that this is about, as Mr. Wamp suggested, it's about
the science, it's not about budget control. And my suggestion
would be that the OMB abandon its plan, say this short and
sweet and simple. I think it would be appropriate for our
former colleague, Congressman Portman, still the U.S. Trade
Rep, to announce that the plan is being abandoned, and OMB will
go back to the drawing board and work with the Congress, which
after all, let its will be known in 2000 as to how we wanted
these veterans, these Cold War warriors, these American heroes,
to be treated.
Ms. Jackson Lee. Mr. Hastings, and then I will ask Mr.
Udall of New Mexico. There is a suggestion by the OMB to have
an expedited review--and I mentioned earlier that we are faced
against the lack of technology that we had or lack of being
able to assess these particular injuries or exposure to
radiation--but an expedited review of Special Exposure Cohort
applications. And they have recommended this, which I perceive
to be duplicating the work of the Advisory Board that is
structured under HHS. Do you have any insight on that process
that they're trying to suggest? And maybe why they're trying to
do so?
Mr. Hastings. It seems like one of the responses that we
always make in Congress is another review of some sort. I mean
I think there's enough data out there. It's how you collect
that data and put it into place.
Now, admittedly--and you referenced this twice in your
opening remarks and in the start of the questioning--in the
early part of the whole process of building nuclear weapons,
the emphasis clearly wasn't on recordkeeping. I mean we were--
especially during the '40's. We didn't know if we were behind
or not Nazi Germany, and we had to catch up. And so the
recordkeeping wasn't all that good.
But I made the point in my remarks that for goodness sakes,
if we can build a nuclear reactor in 13 months, certainly we
can find a way in 5 years to come up with some program that's
going to take care of those--and my emphasis, by the way, in my
testimony is on Part E more than Part B. Part B has been fairly
good, at least percentage wise in my area, but it's been very,
very slow in Part E.
So maybe a review is in order, but I would just simple say,
after 5 years, I think we really ought to get on with this
thing. There may be data out there. Maybe the fact that you are
holding hearings will prompt that.
We've spent hundreds of millions dollars on administrating
this program, and yet, I think all of us, when we signed on in
support of the original legislation, the expectation, as
Congressman Wamp said, if there was any surpluses, that would
not go to the administration, it would go to the victims. And
so I'm not saying we shouldn't look at data, but I can't say--I
think there's probably enough out there. Let's get on with
trying to break through this and make sure the victims get
compensated.
Ms. Jackson Lee. We need to get to results. Is that what
you're saying?
Mr. Hastings. Thank you for putting words in my mouth. I'll
accept that. [Laughter.]
Ms. Jackson Lee. In this room of harmony, we will do in the
right spirit.
Congressman Udall, as your work in the Attorney General's
arena and your representation of Los Alamos, one of the more
well-known entities, are you concerned where we are with
respect to victims, and do you have some assessment of how slow
this has been going even under the present system, and that any
interference by OMB at this point would do nothing more but to
further delay, and to, I think, cast doubt on these brave
Americans as to whether or not their country cares for them?
I think one of the suggestions was to question the
objectivity of the Advisory Board. Is that where we need to be
now, or do we need to be functioning on trying to render
compensation to the victims?
Mr. Tom Udall. I very much appreciate your questions and
the concern of the Chairman. I think the thrust here--and my
fellow panelists I think drove this home very powerfully--is
the thrust should be fairness and equity, and as you said,
results. That is what the law intended. If you go back and you
look at the legislative history, you sense the urgency from all
of the claimants. We've got to move this forward and we've got
to get it done. The numbers that I gave you in my testimony
show that we're not moving forward, that there's injustice out
there, and that people are dying.
And the one other point that I would like to make is, you
know, we talk about making people whole--and I think we tried
to do as good a job as we could in the statute, but let's not
forget if people were litigating these claims out in the
private sector, and you take somebody away that's making a
significant amount of money, and take them away from the
workforce for 10 or 15 years because of an early death, you're
probably talking about an award in terms of millions of dollars
to the family, if it's only the family that's left, or to the
claimant. And so here we've tried to approximate--and we've
taken $150,000, and we've taken medical benefits, and I think
all of the claimants felt very good about that. But the old
saying that justice delayed is justice denied is what applies
here.
What we really need to do is try to look at what people are
entitled to under the law, and see that they get this in an
orderly way. And that's not happening in Los Alamos. Part of
the reason is because these claims are so old, and we're
talking about the '40's, as Doc said. We're talking about the
failure to really understand what they were dealing with, the
failure to keep records, and so we need to move forward
aggressively with these Special Exposure Cohorts, and establish
the dosimetry and then move along with the claims.
And we very much appreciate your interest in this issue,
and look forward to working with you on it.
Ms. Jackson Lee. Thank you very much.
Thank you very much, Mr. Chairman.
Mr. Hostettler. The Chair now recognizes the gentlelady
from California for 5 minutes for questioning, Ms. Waters.
Ms. Waters. Thank you very much, Mr. Chairman, and to our
Ranking Member for holding this hearing today. I have lots of
questions, and some of them have been answered with the
dialogue that I just heard between Congresswoman Jackson Lee
and you, Mr. Chairman. However, I do have a few questions.
One of them is about DOE. DOE has conceded that they fought
claims for workers' compensation, particularly radiation-
related claims, without regards to merit. Some of the same
individuals who served as expert witnesses for DOE and its
contractors are now employed by the NIOSH Compensation Program,
providing advice on key decisions and assessing the merits of
SEC petitions. Should someone who was an expert witness
opposing workers' claims at a given site be restricted from
working on EEOICPA's claims or Special Cohort petitions? Who
would like to answer that?
Mr. Wamp. Well, I'll say, since the contractor that was
chosen happens to be from my district, that that's why the GAO
report needs to be done and done quickly, is to get to the
bottom of all of this, because I think that improvements can be
made and efficiencies can be created, but the facts will speak
for themselves. And if there is a conflict, that needs to be
identified. But I do think that they're working in good faith
to try to find people that understand the history and
understand the program, and try to get the benefits out as
quick as possible.
And I think dose reconstruction and the job that ORAU and
Oak Ridge is tasked with doing, is coming along quite nicely,
but I think there should be a review. Anytime, as the Committee
said--I think the Chairman in his introduction--that a program
is this large and benefits are this great, and management of a
program is this extensive, there should be a review, there
should be a GAO review. That's why we have them. And so that's
what we need to do, and have it done quickly, and they will
identify areas that need to be improved in efficiency and
accountability, but I'm not going to make any allegations
myself because I don't know. But I do know that they need
oversight, and that's the arm that we have for oversight.
Thank you.
Ms. Waters. Does anyone know whether or not it's true that
these same expert witnesses are now working for DOE? I mean, is
that a fact? Is that true? Anyone have that information? Mr.
Udall, do you know?
[Pause.]
Mr. Mark Udall. I'm informed, Congresswoman, that there's a
gentleman, Mr. Falk, who has testified in the past in regards
to the Rocky Flats Special Cohort. It's my sense that it's
always better to avoid a perception of bias, and if there are
ways to, of course, find the expertise, because this is a very
specialized area, with people who didn't argue on the other
side of this set of issues when they were involved with DOE, we
would be better served. But I take into account what
Congressman Wamp also suggested about the good faith intentions
of the company that he mentioned.
Ms. Waters. Thank you very much.
Mr. Chairman, that's all. I yield back the balance of my
time.
Ms. Jackson Lee. Mr. Chairman, may I just indicate I have
an amendment on the floor for port security. And there will be
a second round. I may try to come back.
Thank you, gentlemen, very much for very provocative
testimony. Thank you.
Mr. Hostettler. Thank the gentlelady.
We'll now turn to a second rounds of questions, just have a
few questions for the Chair. And that is, first of all,
Congressman Udall from New Mexico, I have a question with
regard to the use of data in the creation of SEC, in the
support or denial of SEC petitions. When Congress enacted
provisions for SECs, for Special Exposure Cohorts, did you
expect that NIOSH would deny SECs for workers when there was no
data or inadequate data of that individual or group of
individuals' dose? And then secondly, did you expect that SECs
would be denied based on dose reconstructions as a result of
data from other facilities, other nuclear facilities?
Mr. Tom Udall. Mr. Chairman, I didn't expect either one of
those things. I thought that the whole creation in the law of
an SEC was to get to the heart of the problem, which was in
many of the older facilities where you didn't have records, to
reconstruct and to get quickly to what kind of exposures we
had. And I think it surprised a lot of us in looking at the way
this has been approached, that there have been denials in those
circumstances that you just talked about.
Mr. Hostettler. And site specific information was
important, as opposed to generalizing from site to site.
Mr. Tom Udall. To use another site's information to deny--
for example, to use one of Zach's Oak Ridge, or someplace,
information there to deny a Los Alamos SEC, to me makes no
sense. I mean, I'm not--I'm just using that as a hypothetical,
but you need the information to be site specific, and that's
what you've emphasized in your question. We need to move
forward with these SECs, rather than have the attitude be of
blocking and stopping and trying to prevent us to get to the
heart of are these people entitled to this compensation, and
what were their doses they received, and are they likely to be
covered under the statute?
Mr. Hostettler. Thank you. I have one final question
dealing with the issue of equity that Mr. Wamp and others have
talked about here, which is really at the heart of the purpose
for these hearings and the program. And from all four of you,
if you could give me perspectives from your specific locations
and your specific experience. Do you think that the quality of
the assistance that's being provided to claimants under the
program acknowledges the importance or the contribution that
the workers at your perspective plants made to our national
defense? If you could just give us your own impression of that.
Mr. Wamp. Yes is the short answer. But I think that like
any other major Federal Government program, the appearance is
that the inefficiency and the bureaucracy is not as sympathetic
to the people in the stories as they should be, and that's what
we get every single day, including a letter this morning faxed
to me from a friend whose family, friends, are directly
affected, lost the claimant to death, waiting still to hear.
Just another reminder.
But in the bureaucracy, claims were slow, process was
delayed. It looks like we don't care. The truth is this program
never would have been created if we didn't care, and if we're
not honoring their sacrifice and their incredible patriotism.
But overall, yes, I do think so, but the Federal Government
is the Federal Government. Unfortunately, it's very
bureaucratic and burdensome.
Mr. Hastings. I would say my criticism, as I mentioned in
my prepared remarks and in response to a question, is not so
much with Part B but with Part E. Percentage wise of those that
at least are being looked at on Part B I find okay. My
criticism of this--and it's complicated. We haven't touched on
the complications of it. I've learned, because I represent
Hanford, that there is a strong migration of workers that work
at Hanford, Oak Ridge, Savannah River, Rocky Flats, sometimes
two or three times around. And at all of those sites at
sometime during the time that they were in production, workers
could have been exposed. And it's not just the workers that
worked right in the plant. It's the workers that took care of
the waste.
So it's a complicated issue. But my criticism only is, is
that after 5 years, we don't seem to be making any headway on
those--at least the Part E part of this program, and that
concerns me. I wish I had a magic wand to tell you exactly, and
to tell the Department, exactly how to do it, but the fact is,
is we've spent, as I mentioned, hundreds of millions of dollars
on the administration of this. Gosh, after 5 years you think
you could come up with at least some sort of a template in
order to look at this, and judge things accordingly. And it
appears to me, at least in Part E, that that hasn't happened,
notwithstanding the fact that we have transferred that part to
Department of Labor from the Department of Energy.
So I'm frustrated with that part, but from my perspective
on Part B, again, percentage wise of those workers that are
served by that, that seems to be responding.
Mr. Tom Udall. Mr. Chairman, if I might, I think part of
your question goes to the difficulty of establishing a Special
Exposure Cohort. And if you look at all of the information that
needs to be compiled, you look at the health physics and all of
that being a part of it, I think these average citizens are at
an extreme disadvantage when it comes to be advocating for a
Special Cohort. And I would just--I think it's my testimony,
but I would repeat it, that we should have authorizing
legislation to establish a technical assistance program for
citizens, workers and families seeking to file petitions for a
Special Exposure Cohort.
To me that makes a lot of sense, because you have to pull
together such a significant amount of information, and you need
special expertise. Many of these people are not capable of
doing that, and we should give them some assistance.
And so if you look at--when you asked a question--Cold War
heroes on the one hand, and all of us acted in this law, and
the Congress passed it, and Secretary Richardson and President
Clinton, we talked about how they were Cold War heroes, but we
haven't responded like they were Cold War heroes, and I think
that's my complaint here today, is that we need to try--where
there are roadblocks and obstacles in this statute, to try to
figure ways to move this along and bring these cases to
justice.
Thank you.
Mr. Mark Udall. I'm reluctant to try and improve on what
Congressman Udall just had to say when he summarized the
situation we're in, Mr. Chairman, but I'll give it my best.
And I want to just start by talking about Rocky Flats
specifically. If I had known how deficient the records were
going to be, and in fact were, I would have worked to have
included the Rocky Flats work team in the Special Cohort group
initially in the legislation that we brought forward. That's
why in a follow-on effort I've introduced legislation that
would create the Rocky Flats Special Cohort.
More generally to your question, there's been some spotty
success. Let's be clear, here have been some improvements,
particularly after this was moved to Labor. That's why all of
us here at the panel and a number of others joined together to
push to move this under the auspices of the Department of
Labor. And of course, you can find people in my State who feel
like they've been made whole, but I think on balance it's many
more people who feel frustrated at best, and let down at worst.
I would just conclude with this comment. I remember
traveling down to the Department of Energy, and it was, I
think, in the year 2000. I might be correct here, but it was
certainly during the Clinton administration, where Secretary
Richardson took the very significant step of basically saying
the Federal Government needs to remedy a wrong here, the
Federal Government has been traveling the wrong road. And I
think we were all there. There were a number of Members of the
other body. It was that important to the Senate, they were
there. And Secretary Richardson conducted a teleconference all
over the country with workers present, both in real time,
physically here in Washington, but all over the country,
announcing that we were going to, as the United States, make
them whole. We were acknowledging they had been harmed. We were
acknowledging they were heroes.
I still remember that day like it was yesterday, and
that's, I think what Congressman Udall was alluding to when we
said we were going to treat them as heroes, and yet we haven't.
Again, I want to just thank you for your attention to this
matter, because it's a very, very serious and important matter
for all of the reasons that have been discussed here today.
Thank you.
Mr. Hostettler. Thank you, gentlemen. Thank you for your
experience and your insight into this important issue. You made
very valuable contributions to the record in this, the second
of what will be a series of hearings.
I would just, for the record, advise the Subcommittee that
Members will have 5 legislative days to make additions,
contributions to the record.
The business before the Subcommittee being completed,
without objection, we are adjourned.
[Whereupon, at 12:43 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Maxine Waters, a Representative in
Congress from the State of California
Sample report sent to claimants regarding their dose reconstruction,
submitted by the Honorable Tom Udall, a Representative in Congress from
the State of New Mexico
``Web Site Disclosure Statement (Biosketch)'' of Roger B. Falk,
employee of Oak Ridge Associated Universities, submitted by the
Honorable Mark Udall, a Representative in Congress from the State of
Colorado