U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

27–335 PDF 2006

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 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

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 

LOUIE GOHMERT, Texas 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

JEFF FLAKE, Arizona 

BOB INGLIS, South Carolina 

DARRELL ISSA, California 

SHEILA JACKSON LEE, Texas 

HOWARD L. BERMAN, California 

ZOE LOFGREN, California 

LINDA T. SA ́ NCHEZ, California 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel 

ART ARTHUR, Counsel 

ALLISON BEACH, Counsel 

CINDY BLACKSTON, Professional Staff 

NOLAN RAPPAPORT, Minority Counsel 

(III)

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

(1)

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 

2

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 ExVerDate 0ct 09 2002 13:31 Dec 07, 2006 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\050406\27335.000 HJUD1 PsN: 27335
3

posure 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. 

4

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 cosponVerDate 0ct 09 2002 13:31 Dec 07, 2006 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\050406\27335.000 HJUD1 PsN: 27335
5

sor—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 

6

other DOE facilities. Our efforts paid off with the creation of 

EEOICPA. 

EEOICPA has been a tremendous success in many ways. Accord- ing 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:]

7

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. 

8

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 51⁄2 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 

9

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 51⁄2 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 hisVerDate 0ct 09 2002 13:31 Dec 07, 2006 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\050406\27335.000 HJUD1 PsN: 27335
10

torical 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 proVerDate 0ct 09 2002 13:31 Dec 07, 2006 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\050406\27335.000 HJUD1 PsN: 27335
11

file 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. 

12

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 21⁄2 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 

13

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:]

14

PREPARED STATEMENT OF THE HONORABLE DOC HASTINGS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF WASHINGTON


DH0001.eps
15


DH0002.eps
16


DH0003.eps
17

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. 

18

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 31⁄2-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:]

19

PREPARED STATEMENT OF THE HONORABLE MARK UDALL, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF COLORADO


MU0001.eps
20


MU0002.eps
21


MU0003.eps
22


MU0004.eps
23


MU0005.eps
24

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. 

25

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. 

26

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? 

27

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 

28

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? 

29

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 wellknown 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 

30

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. 

31

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. 

32

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. 

33

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.] 

(35)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

36

PREPARED STATEMENT OF THE HONORABLE MAXINE WATERS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA


Waters.eps
37

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


A0001.eps
38


A0002.eps
39


A0003.eps
40


A0004.eps
41


A0005.eps
42


A0006.eps
43


A0007.eps
44


A0008.eps
45


A0009.eps
46


A0010.eps
47

‘‘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

Æ


B0001.eps