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90-178 PDF 2004

ENERGY EMPLOYEES WORKERS’ 

COMPENSATION: EXAMINING 

THE DEPARTMENT OF 

LABOR’S ROLE IN HELPING 

WORKERS WITH ENERGYRELATED OCCUPATIONAL 

ILLNESSES AND DISEASES

HEARING

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS

OF THE

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

October 30, 2003

Serial No. 108-41

Printed for the use of the Committee on Education and the Workforce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

Committee address: http://edworkforce.house.gov 

(II)

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN A. BOEHNER, Ohio, Chairman

Thomas E. Petri, Wisconsin, Vice Chairman 

Cass Ballenger, North Carolina 

Peter Hoekstra, Michigan 

Howard P. ‘‘Buck’’ McKeon, California 

Michael N. Castle, Delaware 

Sam Johnson, Texas 

James C. Greenwood, Pennsylvania 

Charlie Norwood, Georgia 

Fred Upton, Michigan 

Vernon J. Ehlers, Michigan 

Jim DeMint, South Carolina 

Johnny Isakson, Georgia 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Patrick J. Tiberi, Ohio 

Ric Keller, Florida 

Tom Osborne, Nebraska 

Joe Wilson, South Carolina 

Tom Cole, Oklahoma 

Jon C. Porter, Nevada 

John Kline, Minnesota 

John R. Carter, Texas 

Marilyn N. Musgrave, Colorado 

Marsha Blackburn, Tennessee 

Phil Gingrey, Georgia 

Max Burns, Georgia 

George Miller, California 

Dale E. Kildee, Michigan 

Major R. Owens, New York 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Ron Kind, Wisconsin 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Betty McCollum, Minnesota 

Danny K. Davis, Illinois 

Ed Case, Hawaii 

Rau ́l M. Grijalva, Arizona 

Denise L. Majette, Georgia 

Chris Van Hollen, Maryland 

Tim Ryan, Ohio 

Timothy H. Bishop, New York

Paula Nowakowski, Staff Director 

John Lawrence, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

CHARLIE NORWOOD, Georgia, Chairman

Judy Biggert, Illinois, Vice Chairman 

Cass Ballenger, North Carolina 

Peter Hoekstra, Michigan 

Johnny Isakson, Georgia 

Ric Keller, Florida 

John Kline, Minnesota 

Marsha Blackburn, Tennessee 

John A. Boehner, Ohio, ex officio 

Major R. Owens, New York 

Dennis J. Kucinich, Ohio 

Lynn C. Woolsey, California 

Denise L. Majette, Georgia 

Donald M. Payne, New Jersey 

Timothy H. Bishop, New York 

George Miller, California, ex officio 

(III)

C O N T E N T S 

Page

Hearing held on October 30, 2003 .......................................................................... 1

Statement of Members: 

Norwood, Hon. Charlie, a Representative in Congress from the State 

of Georgia ...................................................................................................... 2

Prepared statement of ............................................................................... 3

Owens, Hon. Major R., a Representative in Congress from the State 

of New York ................................................................................................... 3

Statement of Witnesses: 

Elisburg, Don, Attorney, AFL-CIO, Building and Construction Trades 

Department ................................................................................................... 24

Prepared statement of ............................................................................... 25

Hallmark, Shelby, Director, Office of Workers’ Compensation Programs, 

Employment Standards Administration, U.S. Department of Labor ....... 7

Prepared statement of ............................................................................... 9

Howard, Dr. John, M.D., Director, National Institute for Occupational 

Safety and Health, Centers for Disease Control and Prevention, U.S. 

Department of Health and Human Services .............................................. 12

Prepared statement of ............................................................................... 15

Additional materials supplied: 

Claimant Statements submitted by Ranking Member Major Owens .......... 45

Bulletin of Atomic Scientists, July/August 2001, ‘‘A Debt Long Overdue,’’ 

‘‘The Burden of Proof,’’ and ‘‘Making it Work’’ ........................................... 45

(1)

ENERGY EMPLOYEES WORKERS’ 

COMPENSATION: EXAMINING THE 

DEPARTMENT OF LABOR’S ROLE IN 

HELPING WORKERS WITH ENERGYRELATED OCCUPATIONAL ILLNESSES AND 

DISEASES 

Thursday, October 30, 2003

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

Washington, DC 

The Subcommittee met, pursuant to notice, at 11:14 a.m., in 

room 2181, Rayburn House Office Building, Hon. Charlie Norwood 

[Chairman of the Subcommittee], presiding. 

Present: Representatives Norwood, Kline, Blackburn, Owens, 

Kucinich, and Woolsey. 

Also Present: Representative Wamp. 

Staff Present: Stacey Dion, Professional Staff Member; Kevin 

Frank, Professional Staff Member; Ed Gilroy, Director of Workforce 

Policy; Don McIntosh, Staff Assistant; Christine Roth, Professional 

Staff Member; Deborah L. Samantar, Committee Clerk/Intern Coordinator; Kevin Smith, Senior Communications Counselor; Maria 

Cuprill, Minority Legislative Associate/Labor; Margo Hennigan, Minority Legislative Assistant/Labor, and Peter Rutledge, Minority 

Senior Legislative Associate/Labor. 

Chairman NORWOOD. A quorum being present, the Subcommittee 

on Workforce Protections of the Committee on Education and the 

Workforce will now come to order. 

We are meeting today to hear testimony on energy employees’ 

Workers’ Compensation, examining the Department of Labor’s role 

in helping workers with energy-related occupational illness and 

disease. 

Under Committee rule 12(b), opening statements are limited to 

the Chairman and the Ranking Minority Member of the Subcommittee. Therefore, if other Members have statements, they may 

be included in the hearing record. 

With that, I ask unanimous consent for the hearing record to remain open for 14 days to allow Members’ statements and other extraneous material referenced during the hearing to be submitted in 

the official hearing record. 

2

Without objection, so ordered. 

STATEMENT OF HON. CHARLIE NORWOOD, CHAIRMAN, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE 

ON EDUCATION AND THE WORKFORCE 

I would like to welcome everyone, and thank our distinguished 

witnesses for coming to testify on this very important subject. 

We are here today to learn about the energy employees’ occupational illness compensation program. This program is important because it provides compensation to Americans who suffer from illnesses as a result of work performed in the production and testing 

of U.S. nuclear weapons. 

Our hearing today will focus on the Department of Labor’s role 

in administering important worker benefits under the law. 

The Energy Employees’ Occupational Illness Compensation Program Act of 2000 is administered today by four agencies, including 

the Departments of Labor, Energy, Health and Human Services, 

and Justice. No wonder it is taking so long. However, the Departments of Labor and Energy are responsible for the claims and review processes that provide workers with compensation and benefits. 

Eligible workers may file a claim for compensation and benefits 

from either of the Departments or both, if they meet certain criteria. For the purposes of this hearing, we will only examine Subtitle B of the Act, which is administered by the Department of 

Labor. 

The Department of Labor’s program provided direct, lump sum, $150,000 compensation payments, plus medical benefits, for eligible 

employees of the Department of Energy and its contractors and 

subcontractors who have developed cancer and other serious diseases because they were exposed to radiation, beryllium, or silica, 

in the course of doing their jobs. Also, lump sum payments of $50,000 and prospective medical 

benefits are paid to some workers who are eligible for benefits 

under the Radiation Exposure Compensation Act. Specified survivors of covered employees are also entitled to receive compensation. 

The Department of Labor began processing claims on July 31, 

2001. Although the program is complicated, it is important for the 

program to be administered efficiently, and for the claims process 

to be as user-friendly as possible. 

I am pleased to note that the Department of Labor has been successful in administering and adjudicating the claims filed by thousands of American workers. So far, 48,311 claims have been filed 

with the Department of Labor, and approximately $674 million in 

compensation has been paid to employees as of October 31, 2003. 

Today’s hearing will allow us to examine the overall effectiveness 

of the Department of Labor’s role in this Workers’ Compensation 

program, and whether the claims processing, communication, and 

payment procedures for eligible employees have been sufficient in 

meeting their needs and furthering the goal of this program. 

We have a significant amount of technical information to discuss 

today, so I am anxious to hear from our witnesses. I look forward 

to discussing the issues related to these processes with my colVerDate 0ct 09 2002 20:09 Jul 12, 2004 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 H:\DOCS\90178.SF EDUWK PsN: NNIXON
3

leagues on this very important compensation program for our dedicated Department of Energy employees. 

I will now yield to the distinguished Ranking Minority Member 

from New York, Major Owens, for whatever opening statement he 

may wish to make. 

[The statement of Chairman Norwood follows:]

Statement of Hon. Charlie Norwood, Chairman, Subcommittee on 

Workforce Protections, Committee on Education and the Workforce 

I’d like to welcome everyone and thank our distinguished witnesses for coming to 

testify on this very important subject. We are here today to learn about the Energy 

Employees’ Occupational Illness Compensation Program. This program is important 

because it provides compensation to Americans who suffer from illnesses as a result 

of work performed in the production and testing of U.S. nuclear weapons. Our hearing today will focus on the Department of Labor’s role in administering important 

worker benefits under the law. 

The Energy Employees’ Occupational Illness Compensation Program Act of 2000 

is administered by four agencies, including the Departments of Labor, Energy, 

Health and Human Services, and Justice. However, the Departments of Labor and 

Energy are responsible for the claims and review processes that provide workers 

with compensation and benefits. Eligible workers may file a claim for compensation 

and benefits from either the Departments, or both, if they meet certain criteria. For 

purposes of this hearing, we will only examine Subtitle B of the Act which is administered by the Department of Labor. 

The Department of Labor’s program provides direct, lump sum $150,000 compensation payments plus medical benefits for eligible employees of the Department 

of Energy and its contractors and subcontractors who developed cancer and other 

serious diseases because they were exposed to radiation, beryllium or silica in the 

course of doing their jobs. Also, lump-sum payments of $50,000 and prospective 

medical benefits are paid to some workers who are eligible for benefits under the 

Radiation Exposure Compensation Act. Specified survivors of covered employees are 

also entitled to receive compensation. 

The Department of Labor began processing claims on July 31st, 2001. Although 

the program is complicated, it is important for the program to be administered efficiently and for the claims process to be as user-friendly as possible. I am pleased 

to note that the Department of Labor has been successful in administering and adjudicating the claims filed by thousands of American workers. So far, 48,311 claims 

have been filed with the Department of Labor and approximately $674,000,000 in 

compensation has been paid to employees as of October 23, 2003. 

Today’s hearing will allow us to examine the overall effectiveness of the Department of Labor’s role in this workers’ compensation program, and whether the claims 

processing, communication, and payment procedures for eligible employees has been 

sufficient in meeting their needs and furthering the goal of this program. 

We have a significant amount of technical information to discuss today, so I am 

anxious to hear from our witnesses. I look forward to discussing the issues related 

to theses processes with my colleagues on this important compensation program for 

our dedicated Department of Energy employees. 

And, I now yield to the distinguished Ranking Minority Member from New York, 

Mr. Owens, for whatever opening statement he wishes to make. 

STATEMENT OF HON. MAJOR OWENS, RANKING MEMBER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE 

ON EDUCATION AND THE WORKFORCE 

Mr. OWENS. Thank you, Mr. Chairman. I also want to thank all 

of today’s witnesses for being here this morning. I particularly 

want to thank Don Elisburg. He is here at my request, and I know 

that he has traveled across the country in order to be here. 

I want to commend Chairman Norwood and also Committee 

Chairman Mr. Boehner for scheduling this hearing. This is a Committee that is supposed to have expertise for Workers’ Compensation programs generally. As the primary oversight Committee for 

4

both NIOSH and the Department of Labor, this is a Committee 

that comes the closest to having primary jurisdiction for the Energy Employees’ Occupational Illness Compensation Program Act. 

I will refer to it from here on as the Act. 

However, beyond unsuccessfully opposing enactment of this Act, 

this Committee had virtually no role in the enactment of this legislation, and despite the fact that the Act was passed 3 years ago 

today, this is the first hearing on the program, and in my view, 

this kind of recalcitrance borders on negligence, so I commend the 

Chairman for scheduling this hearing. 

The Act authorizes compensation for workers who are injured as 

a result of being employed to develop and build nuclear weapons. 

For decades, the U.S. Government has hid and misled the extent 

to which these workers were being poisoned, and spent millions of 

dollars fighting allegations that the production of nuclear weapons 

was jeopardizing workers’ health. 

According to the GAO, in 1992 alone, the Energy Department spent $40 million defending contractors from litigation brought by 

sick workers. We are talking about workers who literally risked 

their lives defending the nation, but who were lied to, misled, and 

cheated by their government. This is the background that led to 

the enactment of the Energy Employees’ Compensation Act. 

We routinely refer to this program as a Workers’ Compensation 

program, but I think it is a mistake, that reference is a mistake. 

This program has very little in common with traditional state 

Workers’ Compensation laws. In my view, it makes much more 

sense to view this as a reparation program, because that is what 

it really is. 

The intent of the Act is to provide a very modest benefit, $150,000 and medical benefits, if the injured worker is still alive—

and too many are not—to all nuclear energy workers after the survivors have developed radiation-induced cancers and illnesses. 

The program was never intended to be limited only to those 

workers employed at gaseous diffusion plants. 

The real credit for the passage of this landmark legislation goes 

to people like Clara Harding, the widow of Joe Harding, who died 

a slow and painful death from stomach cancer in 1980. Joe Harding 

worked for Union Carbide at the Energy Department’s uranium enrichment plant in Paducah, Kentucky. After 17 years on the job, 

Joe Harding found himself 50 years old with no job, no stomach, 

a crippled leg, bad lungs, no way to get a job, and no compensation 

for his injuries. 

Clara Harding had to sell her house and supported herself by 

babysitting for 20 years before ever receiving any compensation for 

her husband’s death. 

The purpose of this program is to ensure that other families, including families in Hanford, Washington; Rocky Flats, Colorado; 

Niagara Falls, New York; and Savannah River, South Carolina, as 

well as those in Paducah, Kentucky and Portsmouth, Ohio, do not 

face the inhuman and horrific treatment that the government afforded Mrs. Harding and her husband. 

Unfortunately, based on information I have received concerning 

the experiences of workers in Niagara Falls, it appears that these 

workers are still not being treated as they deserve. 

5

Judith Anne Cinelli is a widow of a former atomic worker in Niagara Falls, New York. She filed her claim on September 21, 2001. 

She has yet to be interviewed by NIOSH. The Department of Labor 

denied her claim because her husband’s dates of employment were 

outside the covered period. This is how Mrs. Cinelli describes her 

experience: At the time, it was not common knowledge of the dangers of radiation. He died in my arms of lung cancer 6 weeks after 

diagnosis at age 60. 

It is haunting to think of the innocent people only trying to make 

a living with the specter of a silent killer hanging over them. So 

an early death was the ultimate consequence of working in buildings contaminated by residue from the Manhattan Project just a 

few years prior. 

Of course, it was devastating to lose the love of your life after 

39 years of marriage. Frank never even retired after a life of working to care for our family of four children who adored him. 

It causes a great deal of anguish to think that our government 

won’t care for our own. It is not that large of a dollar amount for 

a loss of life, for suffering from untold cancers. This compensation 

needs to be paid for a token justice to the losses suffered by those 

who toiled there year after year. 

Losing Frank has brought heartache to me, our four kids, and 

their spouses, and also our 12 grandchildren and many friends. 

That sadness is enough to bear, but to live with the knowledge that 

there are bad people who know that this is the right thing to do 

and are trying everything humanly possible to prevent those waiting for years for this to come to closure is sickening and disgusting, 

at best. Those in power trying to deny this will probably never experience the frustration and loss the likes of us have, and as angry 

as I am, I pray they never do. 

Thomas J. Catanzaro is a former atomic worker at Niagara Falls, 

also. He filed a claim on August 2, 2001. He also has not heard 

from NIOSH. He worked at Lake Ontario Ordnance Works in 1957 

as a laborer, and has been told by the Department of Energy that 

they are having trouble finding his former employers because a few 

went out of business. 

This is how he describes his experience, and I will close after 

this, Mr. Chairman. 

I got colon cancer and a colostomy done in 1969 at the age of 32. 

The doctors said that was unheard of at my age. I could not have 

any more children. My recovery took a long time. I missed out on 

all the things a father enjoys with his sons and the relations a man 

has with his wife. 

When I called to find out the status of my claim, I was told by 

a worker at DOE there were people that were far more deserving 

than myself. I have been on disability and have been living very 

frugally for a long time. 

To know that there is compensation for wallowing in a radioactive dump during that time and being made to wait all this time 

is very frustrating. It is impossible to condense all the things that 

I lost at the age of 32 until now. I couldn’t provide for my family 

as I would have liked, watching my wife having to work two jobs 

to supplement our income. The list could go on forever. There must 

6

be a way to speed this process along. I have watched two of my coworkers on that job die this year. 

Mr. Chairman, notwithstanding the passage of the Act, these 

workers continue to feel that their government is at best ignoring 

them, and at worst, betraying them. 

This is a problem that must be addressed. 

Mr. Chairman, I have a number of documents I would like to 

submit for the record. These claimant statements that have been 

submitted to me by Congresswoman Louise Slaughter, who represents that area of Niagara, and also articles from a July/August 

2001 issue of the Bulletin of Atomic Scientists, describing the enactment of the Act and the circumstances that led to its enactment. 

Additionally, Mr. Chairman, there are written questions that I 

would like to submit to NIOSH and the Department of Labor after 

the hearing for inclusion in the hearing record. 

I ask unanimous consent to be able to do so. 

Chairman NORWOOD. Without objection, so ordered. 

Chairman NORWOOD. Thank you, Mr. Owens. 

Let me make a little point here. This is a very bipartisan effort. 

There are people on both sides of the aisle that are particularly interested in this subject, and Mr. Owens has just mentioned two 

Democrats, or at least one, Louise Slaughter, and Congressman 

Strickland is also very interested in this subject. I notice my buddy 

from Tennessee, Congressman Zack Wamp, is here. Obviously, he 

is very interested in this subject with Oak Ridge, and your Chairman is extremely interested in this subject, in that I represent a 

lot of people that work at the Savannah River site. 

It is always a pleasure for me to be able to deal with a subject 

in which there is bipartisan support. Mr. Owens, I think with 

enough of us pushing, we are going to try to get this thing improved greatly. 

I thank you for your opening statement, and I would now like to 

introduce our panel of witnesses for this morning’s hearing. 

First, we will hear from Mr. Shelby Hallmark. Mr. Hallmark was 

named as the Director of the Office of Workers’ Compensation Programs—in Washington-speak, OWCP—on June 18, 2001. He served 

as acting director on two occasions, February 1996 through November 1997 and December 1999 through 2001. Previously, he has 

been the OWCP deputy director since February 1990. 

Mr. Hallmark’s career in the Department of Labor began actually 

in 1980. He held a series of positions in the former Standards Administration Office of Management Administration and Planning, 

culminating in his service as that of Office Director from 1987 to 

1990. He was appointed then to the Senior Executive Service in 

1988. 

Mr. Hallmark, we certainly welcome you and thank you for giving us your time. 

Incidentally, Mr. Shelby Hallmark served in a collateral capacity 

as Chair of the Secretary of Labor’s strategic and performance 

planning work group in 1998, and led the development of the Department’s 1999 through 2004 strategic plan and its 2000 annual 

performance plan. 

7

Our second witness is Dr. John Howard. Dr. Howard is Director 

of the National Institute for Occupational Safety and Health in the 

U.S. Department of Health and Human Services in Washington. 

Prior to his appointment as Director of NIOSH, Dr. Howard 

served as Chief of the Division of Occupational Safety and Health 

in the California Department of Industrial Relations from 1991 

through 2002. 

Dr. Howard is board-certified in internal medicine and occupational medicine, and has a list of degrees as long as my arm. He 

is admitted to the practice of medicine and law in the State of California and the District of Columbia, and he is a member of the U.S. 

Supreme Court Bar. 

He has written numerous articles on occupational health law and 

policy, and how you had time to get out of school is beyond me. 

Our final witness, Don Elisburg—we have met before, haven’t 

we? Don Elisburg is an attorney representing the AFL-CIO and the 

Building and Construction Trades Department of the AFL-CIO. He 

testified in support of the legislation that ultimately became 

EEOICPA before the Congress, and specifically in support of assigning the program to the Secretary of Labor while the legislation 

that became EEOICPA was under consideration in the year 2000. 

He was also a member of the Workers’ Advocacy Committee of 

the Department of Energy from January 2001 through December 

2002. That advisory committee was appointed to assist the Department of Energy in implementing its responsibilities under the 

EEOICPA. 

He was Executive Director of the Occupational Health Foundation from 1986 to 1991, and he is former general counsel and staff 

director of the U.S. Senate Committee on Labor and Human Resources. Mr. Elisburg was Assistant Secretary of Labor from 1977 

through 1981. 

We welcome and thank you all. Before the first panel begin their 

testimony, I would like to remind Members that we will be asking 

questions after the entire panel has testified. In addition, Committee Rule 2 imposes a 5-minute limit on all questions. I ask that 

none of you embarrass me by going over 5 minutes. I do not like 

to ask people to stop. If you will do it on your own, I would be 

grateful. 

The lights in front of you, gentlemen, I think you all know, they 

are red, green, and caution. That is giving you some indication as 

to when your 5 minutes is up, and if you will help with that, I will 

be very grateful. 

With that, I would like to now recognize Mr. Hallmark for 5 minutes. 

STATEMENT OF SHELBY HALLMARK, DIRECTOR, OFFICE OF 

WORKERS’ COMPENSATION PROGRAMS, EMPLOYMENT 

STANDARDS ADMINISTRATION, U.S. DEPARTMENT OF 

LABOR 

Mr. HALLMARK. Thank you, Mr. Chairman, and Members of the 

Subcommittee. I am the Director, as the Chairman indicated, of the 

Office of Workers’ Compensation Programs within the Employment 

Standards Administration, within the Department of Labor (DOL). 

Mr. Elisburg was my boss back in 1980 when I came to Labor. 

8

I am pleased to have the opportunity to appear before the Subcommittee this morning to discuss the progress DOL has made in 

implementing Part B of the Energy Employees’ Occupational Illness Compensation Program Act, which we like to call EEOICPA. 

It is appropriate exactly 3 years after its passage that we review 

progress to date. DOL was assigned primary responsibility for administering and adjudicating claims under Part B of the Act, and 

for getting it up and running by July 31, 2001. 

We achieved that goal, and the first payment was made to Clara 

Harding, presented by Secretary Chao on August 9, 2001. Since 

then, the Department of Labor has taken in almost 48,000 claims. 

We have conducted nearly 600 public meetings around the country. 

We have established ten resource centers jointly with the Department of Energy to inform claimants about this program and help 

them file. We have established four district offices in Jacksonville, 

Cleveland, Denver, and Seattle, and the infrastructure to support 

those offices, so that we can process cases. We have issued over 

34,500 case decisions, and awarded almost $700 million in compensation and medical benefits. 

I would like to quickly go through who is eligible under the program, and I have a chart over here that diagrams our process. 

First of all, there are two fundamental tests. One, you must have 

been employed under what we call a covered employment situation, 

and you must have a covered illness. Covered employment means 

the Department of Energy or related facility, during a covered time 

period when nuclear weapons were being produced, and the covered illness means radiation-induced cancer, beryllium disease, or 

for miners at test sites, chronic silicosis. 

Walking through the process—there is a copy of this chart in 

your packets, it might make it a little simpler to understand this 

complex process. 

Claims go first to your district offices in Jacksonville, Cleveland, 

Denver and Seattle. They develop the claim to determine whether 

there is covered employment or covered medical condition. That is 

the ‘‘evidence developed’’ in the far right-hand corner. Once they 

have determined there is a covered condition, that determines the 

processing. There are five different kinds of cases that we deal 

with. 

The first is beryllium disease. The second is silicosis. The third 

is actually RECA coverage, that is that supplemental payment that 

we make for people who receive benefits from the Department of 

Justice. The fourth is a specified cancer that relates to the designated special exposure cohorts, where there is a presumption of 

causation, and the fifth is the radiation-induced cancer, where 

there needs to be a causation determination by our friends at 

NIOSH. 

The first four cases we can take immediately from when we have 

that block saying what is the covered condition, to a recommended 

decision in our district offices, that block right in the middle of the 

chart. 

At that point, a decision is issued to the claimant. The claimant 

may agree or object. If they object, we will have a hearing, and 

then a final decision will apply to the case. 

9

If it’s not one of those four types of cases, if it is a cancer that 

requires a causation determination, then the case must be prepared and submitted to NIOSH for a dose reconstruction to determine what in fact was the nature of their cancer, the causation of 

their cancer. 

Once that decision is made, once NIOSH completes its report, it 

comes back to us, the probability of causation box, we determine 

using a regulation that NIOSH also developed for us, whether or 

not it is at least as likely as not that the cancer was in fact caused 

by the radiation on the job. That then flows back to the recommended decision box, and then the claim proceeds the same for 

those cases as it would for the others. 

For 2002, we set up our performance goals under GPRA for this 

program to get us to the middle of that chart within 120 days for 

simple cases and 180 for the more difficult cases. We did not make 

that because of the backlog we had starting the program, but I am 

happy to say that we got to 48 percent instead of 75. 

In 2003, we did meet those goals. We have cleared the backlog. 

There are only approximately 7 weeks of incoming cases awaiting 

processing in the Department of Labor, and I believe that is what 

I consider to be a credible and working system at the present moment, and we hope a user friendly one as well. 

The coming year faces us with a challenge of receiving back the 

masses of cases that have been transferred to NIOSH and processing them through the recommended and final decision process. 

We will also be working to reach out to the public to make sure 

that everyone who is eligible for this program knows about it and 

can file a claim if they so choose. 

I would be glad to answer questions at the end of this session. 

[The prepared statement of Mr. Hallmark follows:]

Statement of Shelby Hallmark, Director, Office of Workers’ Compensation 

Programs, U.S. Department of Labor 

Mr. Chairman, and Members of the Committee, my name is Shelby Hallmark, Director, Office of Workers’ Compensation Programs (OWCP), part of the Employment 

Standards Administration (ESA), within the Department of Labor (DOL). OWCP is 

responsible for administering four major disability compensation programs which 

provide wage replacement benefits, medical treatment, vocational rehabilitation and 

other benefits to certain workers or their dependents that experience work-related 

injury or occupational disease. 

I am pleased to have an opportunity to appear before the Subcommittee today to 

discuss the progress DOL has made in implementing Part B of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). It is appropriate, 

exactly three years after its enactment, that we review our progress to date in meeting this challenge. 

As you know, under Executive Order 13179, DOL was assigned primary responsibility for administering and adjudicating claims for compensation for cancer caused 

by radiation, beryllium disease and certain other conditions under Part B of the Act, 

and for ensuring that the program was up and running by July 31, 2001. Since 

funding for the new program was not received until January 2001, DOL faced a 

major initial challenge just to meet the congressionally mandated start date. We 

succeeded in issuing interim final regulations in May of that year and established 

a fully functioning program on schedule. The first payment was presented by Secretary Chao on August 9, 2001. Since then, DOL has taken in almost 48,000 claims, 

conducted about 575 public meetings to inform potential claimants of the program 

and help them file claims, established 10 permanent resource centers in the locations where most potential claimants reside, established four DOL district offices 

and the infrastructure to support them, issued decisions in over 34,500 cases and 

awarded almost $700 million in compensation and medical benefits. 

10

Employees who worked for the Department of Energy (DOE), one of its contractors or subcontractors at a DOE facility, or at a facility operated by a private company designated as an Atomic Weapons Employer or a beryllium vendor, may be 

eligible for a lump-sum award and future medical benefits under Part B of the Act. 

Survivors of these workers may also be eligible for benefits. Part D of the Act established a system under which employees whose occupational diseases are found by 

a panel of independent physicians to have been connected to work-related exposure 

to toxic substance receive assistance in obtaining state workers compensation benefits. 

Under the Executive Order, four agencies have responsibility for administering 

the Act, DOL, DOE, the Department of Health and Human Services (HHS), and the 

Department of Justice (DOJ). The DOL, as the lead agency, determines eligibility 

for compensation and medical expenses for those conditions covered by Part B of the 

Act. The DOE provides employment verification to DOL relevant to claims under 

Part B, provides worker exposure information to the Department of Health and 

Human Services for its use in making estimates of the radiation received by a covered worker, administers Part D of the Act, and designates private companies as 

atomic weapons employers and additional beryllium vendors. DOL and DOE jointly 

manage the ten outreach centers aimed at informing potentially eligible workers or 

their survivors about the EEOICPA programs. 

HHS establishes procedures for estimating radiation doses, develops guidelines to 

determine the probability that a cancer was caused by the exposure to radiation, 

estimates radiation doses (dose reconstruction), determines additions to the Special 

Exposure Cohort, and provides support for the Advisory Board established by the 

Act. And finally, the Department of Justice notifies uranium workers eligible for 

benefits under the Radiation Exposure Compensation Act (RECA) that they may 

also receive compensation from the Department of Labor and provides DOL with 

documentation concerning those claims. 

Several requirements must be met for a claimant to be eligible for compensation 

under the EEOICPA. For a worker (or eligible survivor) to qualify for benefits under 

Part B, the employee must have worked at a covered DOE, Atomic Weapons Employer, or beryllium vendor facility during a covered time period and developed one 

of the specified illnesses as a result of their exposure to radiation, beryllium or silica. Covered medical conditions include radiation-induced cancer, beryllium disease, 

or chronic silicosis (chronic silicosis is only covered for individuals who worked in 

nuclear test tunnels in Nevada and Alaska). Covered workers receive a one time 

lump-sum payment of $150,000 as well as medical treatment for the covered condition (medical services and evaluations only for beryllium sensitivity). The EEOICPA 

also provides compensation in the amount of $50,000 to individuals (or their eligible 

survivors) awarded benefits by the DOJ under Section 5 of the Radiation Exposure 

Compensation Act (RECA). 

Allow me to briefly explain how claims filed with DOL are processed. When a 

claim is filed, it is assigned to one of our four District Offices—Jacksonville, FL; 

Cleveland, OH; Denver, CO; or Seattle, WA—based on geographical location of the 

covered worker’s last employment. It is assigned to a claims examiner who will review the documentation and determine if the criteria established by the Act for covered employment and covered illness are met. The claims examiner will work with 

the claimant, DOE and/or the private employer or employers involved to develop the 

case file as thoroughly and completely as possible. 

There are several different types of claims under Part B of the Act, which require 

different processing steps. Claims for the $50,000 RECA supplement are the least 

complex, involving verification via the Department of Justice that a RECA award 

has been made, and documentation of the identity of the claimant (including survivor relationship issues). For claims involving beryllium disease, silicosis, or a 

‘‘specified cancer’’ for workers at a Special Exposure Cohort (SEC) facility, the employment and illness documentation is evaluated in accordance with the criteria in 

the EEOICPA. The DOL district office will then issue a recommended decision to 

the claimant. The claimant may agree with the recommended decision, or may object and request either a review of the written record or an oral hearing (the latter 

will normally be held at a location near the claimant’s residence). In either case, 

the Final Adjudication Branch (a separate entity within the DOL’s Office of Workers’ Compensation Programs) will review the recommended decision and any evidence/testimony submitted by the claimant and will issue a final decision, either 

awarding or denying benefits (or the Branch may remand to the district office if further development of the case is necessary). A Final Decision can then be appealed 

to the U.S. District Courts. 

DOL can move directly to a decision on cases involving a ‘‘specified cancer’’ at a 

Special Exposure Cohort facility because the Act provided a presumption that any 

11

of the listed cancers incurred by an SEC worker was caused by radiation exposure. 

For cases involving a claimed cancer not covered by the SEC provisions (that is, either a cancer incurred at a non–SEC facility, or a cancer incurred at an SEC facility 

that is not one of the specified cancers listed in the Act), there is an intervening 

step in the process to determine causation, called ‘‘dose reconstruction.’’ In these instances, once DOL determines a worker was a covered employee and that he or she 

had a diagnosis of cancer, the case is referred to the National Institute for Occupational Safety and Health (NIOSH) so that the individual’s radiation dose—the total 

amount and character of radiation to which the individual was exposed related to 

his or her employment in the nuclear weapons complex—can be estimated. NIOSH 

will describe the dose reconstruction process in detail in their testimony. 

After NIOSH completes the dose reconstruction and calculates their dose estimate 

for the worker, DOL takes this estimate and applies methodology also developed by 

NIOSH in its ‘‘probability of causation’’ regulations, to determine if the statutory 

causality test is met—that is, whether the individual’s cancer was at least as likely 

as not (at least 50 percent probability) related to covered employment. DOL’s district office then issues a recommended decision on eligibility for EEOICPA benefits, 

which is subject to the same subsequent administrative procedures and appeal 

rights described above with regard to other claims. 

The Department of Labor is committed to measuring the accomplishment of outcomes and holding ourselves accountable for achieving the fundamental goals of all 

the programs we administer. With respect to the Energy Compensation program, we 

established high performance standards focused on moving claims rapidly through 

the initial and secondary adjudication stages. Our Government Performance Results 

Act (GPRA) goals, even for the first full year (fiscal year 2002), were challenging 

in light of the large number of first year claims and program start-up activities. 

Our goal for initial processing was to make initial decisions in 75 percent of the 

cases within 120 days for cases from DOE facilities and in RECA claims, and within 

180 days for AWE, beryllium vendor, and subcontractor cases (for which employment and other critical information is generally more difficult to obtain). Because 

we had nearly 30,000 cases on hand to start with, we knew in advance we would 

not meet those goals, which were conceptualized in terms of a normal, steady-state 

flow of incoming claims. However, we knew that the customers of this program had 

been waiting for years for their illnesses to be addressed, and establishing rigorous 

performance goals signaled to our own staff and to those potentially eligible for benefits that we were committed to efficiently processing claims. In fact, we took timely 

initial actions (either recommended decisions or referral to NIOSH for dose reconstruction) in about 48 percent of the cases during that first year of operation (fiscal 

year 2002), despite the backlog of aged cases that we brought into the year. The 

smaller number of final decisions completed in fiscal year 2002 met our GPRA timeliness goals in 76 percent of cases. 

Although we had received over 47,000 Part B claims by the end of fiscal year 

2003, we have made recommended decisions or referred to NIOSH for dose reconstructions all of our backlogged cases and currently have a working inventory of 

only 1500 cases. Further, we met our GPRA goals in fiscal year 2003. Through the 

efforts of our district office and Final Adjudication Branch staff, we made timely initial decisions in 79 percent of the cases processed, in excess of the 75 percent goal. 

With regard to final decisions, 77 percent of the decisions were within the program 

standards, also in excess of the goal of 75 percent. Accomplishment of these goals 

took the persistent, case-by-case effort of the entire staff of our Division of Energy 

Employees Occupational Illness Compensation Program, as well as the continuing 

support of our Solicitor’s Office. 

DOL has also focused on achieving quality decisions, and on providing clear and 

effective communications to our customers and stakeholders. The program instituted 

an intensive Accountability Review process to ensure that samples of case work are 

scrutinized by objective reviewers, and where quality issues are identified in these 

samples, to take strong and immediate corrective action. The headquarters staff has 

developed effective and comprehensive procedural and policy guidance, a difficult 

task in the context of a new and still evolving compensation program. Although no 

workers’ compensation program is without conflict, the level of appeals has been relatively low. 

Since the effective date of the Act, DOL has received 47,844 claims which were 

filed based on 36,597 individual cases or workers. As of October 23, 2003, we have 

made recommended decisions or referred the case to NIOSH for dose reconstruction 

in 95 percent of these cases. There have been over 24,000 Final Decisions issued 

and nearly $675 million in compensation payments made to over 9000 claimants. 

Additionally, nearly $20 million in medical benefits have been paid. A detailed listing of current program statistics is displayed in attached Program Status Report. 

12

In the coming year DOL is prepared to adjudicate the thousands of cases that will 

be returned by NIOSH with completed dose reconstructions. We have established 

a performance goal to issue a recommended decision within 21days of receiving a 

dose reconstruction report from NIOSH. We have been exceeding this goal so far. 

We also have made a commitment to conduct significant outreach efforts to reach 

as many potential claimants as possible and inform them of the program. These efforts will include a significant number of strategically located traveling resource 

centers to provide assistance to potential claimants, as well as coordination with 

pension funds, unions, and other groups which may be able to extend our message 

about the program to retirees and workers or their survivors who no longer live in 

proximity to a DOE facility. 

In summary, I’m pleased to report that all aspects of the EEOICPA Part B program are fully operational. We believe that we have established a credible program 

and forged effective working relationships with our partner agencies—DOE, HHS, 

and DOJ as well as with the DOE contractors and labor unions. For example, DOL 

and DOE have worked cooperatively to improve the employment verification process 

and have instituted a number of efficiency measures. These efforts have resulted in 

the average time for completion of employment verification at DOE facilities to be 

reduced from nearly 90 days at the beginning of fiscal year 2002 to a current average of less than 45 days. Similarly, the time for corporate verifiers to respond to 

employment verification has been reduced from about 75 days to the current average of 24 days. DOL and HHS also work in cooperation to improve the efficiency 

and effectiveness of the transfer of cases and case information of referrals for dose 

reconstruction. These efforts have resulted in processes that ensure that recommended decisions are issued within 21 days of receipt of the dose reconstruction 

report from NIOSH. 

In addition to the program statistics provided, we have included a summary of 

information for each member relating to the program in general and to your District 

specifically. I’ll be pleased to answer any questions you may have. 

Chairman NORWOOD. Thank you very much, Mr. Hallmark. 

Dr. Howard, we are happy to have your sidekick there, Mr. Elliott, with you. I just want to make sure the Committee understands he is here at your request to help answer questions. You are 

now recognized for 5 minutes. 

STATEMENT OF JOHN HOWARD, M.D., DIRECTOR, NATIONAL 

INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, CENTERS FOR DISEASE CONTROL AND PREVENTION, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES 

Dr. HOWARD. Thank you, Mr. Chairman. 

I am the Director of the National Institute for Occupational Safety and Health (NIOSH), and our job, as Mr. Hallmark has stated, 

is to support the Department of Labor in their administration of 

Part B. 

Under Executive Order 13179, issued on December 7, 2000, the 

President charged HHS with specific responsibilities related to 

Part B. First, the President charged HHS with assisting a new 

Federal advisory committee, the advisory board on radiation and 

worker health, to advise HHS on its activities under Part B. The 

advisory board is constituted pursuant to the Act, with a balance 

of scientific, medical, and worker perspectives, and has been exceptionally active in assisting us under the excellent leadership of Dr. 

Paul Ziemer. 

Second, HHS was charged with promulgating two regulations required under the Act. The first one was to establish methods for 

conducting radiation dose reconstructions for cancer claimants. 

Dose reconstruction is a science based process for looking back in 

time and estimating the amounts and the types of radiation doses 

a person incurred. 

13

The Act also required a second regulation establishing guidelines 

by which DOL would determine whether the cancer of an employee 

was at least as likely as not related to the radiation dose estimated 

for that employee through dose reconstruction. 

HHS promulgated both of these regs in final form in 2002, in 

May of 2002. 

The third responsibility of HHS is the development and the administration of the dose reconstruction program for cancer claimants. This is the largest task that we have. The scale and scientific 

complexity of the dose reconstruction program required by the Act 

are quite significant in comparison to other Federal compensation 

programs requiring dose reconstructions. 

NIOSH began developing this program in the summer of 2002, 

and in the 2 years since then, we have created the scientific and 

management systems and protocols that a program of this size and 

complexity requires, finalized a contract which provides NIOSH 

with the services of more than 300 scientists, technicians and administrative support, and made significant progress in obtaining 

and analyzing extension information required to support those reconstructions, including the development of site surveys, which provide essential information on radiation uses, certain radiation exposures, monitoring practices for a given site, and provide a basic 

foundation of data for production scale dose reconstructions. 

I think there are two important points to note about the development of our program. First, while NIOSH has some of the leading 

expertise in conducting dose reconstructions for scientific purposes, 

the practical challenges of conducting dose reconstructions for a 

compensation program are new to us. 

Second, the Department of Energy has had to develop systems 

for identifying and retrieving records requested by us for individual 

cases. I think over the past year, DOE has greatly enhanced its capacity to do this. 

Where we are at in terms of this day, we have received about 

14,000 cases, as Mr. Hallmark has indicated, from DOL. We have 

made more than 12,000 requests to DOE for data. In addition, we 

have requested data from other sources for employees of atomic 

weapons employers. 

We have completed dose reconstruction interviews for more than 

9,500 claimants and co-workers. We have assigned 1,800 cases to 

health physicists to conduct the dose reconstructions. We have 

drafted 250 dose reconstruction reports that are currently being reviewed by the claimants, which have up to 60 days for their review, 

and we have completed 774 dose reconstructions and returned 

them to the Department of Labor. 

As the summary indicates, we do have a substantial backlog of 

dose reconstructions to complete. I think this backlog arose in large 

part because we had to begin accepting dose reconstruction requests in 2001, long before we had the infrastructure or capacity 

to complete any dose reconstructions. 

As of today, we are steadily increasing our capacity to complete 

dose reconstructions on a production scale, because nearly all of 

our program development has been completed. We are progressively completing more dose reconstructions each month, and we 

expect greater increases in the months ahead. 

14

As our capacity for dose reconstruction has increased, the number of new cases requiring dose reconstruction has been decreasing 

since the fourth quarter of fiscal year 2002. 

Fourth, I just wanted to mention our responsibility under Part 

B concerns making additions to the special exposure cohort. The 

Department is in final stages of promulgating a regulation that will 

allow us to implement this authority. This regulation will set out 

procedures as required by the Act, by which classes of employees 

can petition HHS for addition to the cohort, and by which HHS will 

consider such petitions. 

In conclusion, HHS and NIOSH are working intensively to meet 

our responsibilities under the Act. The major tasks have been challenging because they employ dose reconstruction expertise and systems on an unprecedented scale. 

We remain keenly aware, however, that the nuclear weapons 

workforce, their families, are relying on us to accomplish this work 

as quickly as possible. We understand that doing the best we can 

is not good enough from the perspective of our claimants, some of 

whom are dying of cancer or who have lost a spouse, a parent, or 

a sibling to cancer. 

As we proceed, we will try to strive to produce dose reconstructions that are as timely as possible, that are fair, and that are 

grounded in the best available science. 

Thank you, Mr. Chairman. I would be happy to answer any questions. 

[The prepared statement of Dr. Howard follows:]

15

Statement of Dr. John Howard, M.D., Director, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention, 

U.S. Department of Health and Human Services


90178.001
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90178.002
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90178.003
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90178.004
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90178.005
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90178.006
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90178.007
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90178.009
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Chairman NORWOOD. Thank you, Dr. Howard. 

Now, we would like to go to Mr. Elisburg for 5 minutes. 

STATEMENT OF DONALD ELISBURG, ATTORNEY, AFL-CIO, 

BUILDING AND CONSTRUCTION TRADES DEPARTMENT 

Mr. ELISBURG. Thank you, Mr. Chairman, Members of the Subcommittee. Thank you for the opportunity to testify today. We have 

a detailed statement which we have submitted for the record. 

I would like to point out one correction in that statement, which 

is that the special exposure cohorts of the statute also include 

workers from Amchitka Island, Alaska. In the process of putting 

this together, that piece got dropped out. 

The AFL-CIO and its affiliates have a significant interest in the 

implementation of this program because of the involvement since 

the nuclear weapons program began as the Manhattan Project in 

the early 1940’s, when members of the various affiliate unions built 

and maintained the many facilities used to develop and maintain 

nuclear weapons. Our members have also served as the principal 

production and operating personnel of these weapons facilities. 

For decades, the AFL-CIO, the Building and Construction Trades 

Department, the Metal Trades Department, PACE, and other 

unions have worked to secure safety and health rights and protections, and just compensation for these workers, and this statement 

really has been approved and represents the view of all these affiliates. 

As we have testified before Congress many times, these workers 

were engaged and continue to be engaged in activities vital to the 

security of the United States. They deserve to be treated with fairness and dignity. 

The law was passed in recognition of the fact that the work at 

these facilities put workers at risk of injury, illness and death from 

exposure to radiation and various toxic chemicals and materials 

used in the nuclear weapons program. Secrecy put these workers 

at additional risk. The law was Congress’ recognition and determination to compensate workers and their families, even if it would 

not make them whole. 

Unfortunately, the experience with the implementation of this 

program is just not what these sick workers or their survivors survive, nor does it meet the objectives Congress set forth in the Act. 

Energy workers with radiation induced cancers need timely compensation and that is not happening with many thousands of 

claimants. 

Let me point out that there are really two pieces to this statute, 

which is the Part B dealing with the Department of Labor and 

NIOSH, and Subpart D which are the so-called Department of Energy claims. 

You have asked that we comment on the Department of Labor 

and NIOSH, but our statement does include some extensive analysis and discussion of the other part of the program because of 

those many thousands of claimants who are not being promptly 

dealt with. 

Subpart B provides a lump sum payment if workers meet certain 

criteria of radiation and if cancers are cancers due to exposure to 

silica and beryllium. The statute appears to have created two classVerDate 0ct 09 2002 20:09 Jul 12, 2004 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6602 H:\DOCS\90178.SF EDUWK PsN: NNIXON
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es of workers, those in special exposure cohorts designated by Congress, and those who are otherwise to be individually adjudicated. 

If you are designated by Congress, you file your claim, it is reviewed for medical sufficiency and employment history, and you get 

paid by my colleague, Shelby Hallmark’s group, and I must say 

Shelby was one of our better success stories at the Department of 

Labor. It is presumed that you were exposed to sufficient radiation 

to have caused the cancer. 

If you are not in the special exposure cohort, you are subject to 

the complicated and user unfriendly process of dose reconstruction 

to see if you have enough radiation exposure to qualify for compensation. 

The difficulty with this approach is that the records are simply 

not sufficient to ascertain the individual dose exposures. NIOSH is 

proposing a complex formula and extrapolation to obtain a reconstructed dose. 

If I may say, with due respect to my friend, Dr. Howard, it is a 

Rube Goldberg device of the finest complexity. 

Aside from whether there is a fundamental fairness issue for 

each individual, it is clear that the process will be time-consuming 

and extend the time when these claimants will receive their due 

compensation. Most importantly, we believe that the statute does 

not require NIOSH to proceed with such a difficult program that 

places a much higher burden on these claimants than those in the 

statutorily named cohorts. 

The other part of this is that the process, we feel, aside from 

being complex, it has not been either transparent or really 

participatory by those claimants who have interests here. 

NIOSH, for example, went off and decided they were going to 

have a site profile relating to the Savannah River site, which they 

compiled and never bothered to talk to any of the represented 

workers there because they said there were no unions. The Building Trades have been at Savannah River for more than half a century. They built the place. They still maintain the place. 

In short, we think there is a long trail here for a claimant to become successful under the way that the program is being implemented through these NIOSH dose reconstructions, and we think 

the statute does not require this kind of years and years delay. 

Thank you for the opportunity. I will be glad to answer any questions. 

[The prepared statement of Mr. Elisburg follows:]

Statement of Donald Elisburg, Attorney, AFL–CIO, Building and 

Construction Trades Department 

Mr. Chairman and Members of the Subcommittee: 

My name is Donald Elisburg and I am appearing today on behalf of the AFL–

CIO. I have been asked to testify because of my prior experience with implementing 

similar programs in the past. I testified in support of the legislation that ultimately 

became EEOIPCA before the Congress, specifically in support of assigning this program to the Secretary of Labor when this law was under consideration. I was also 

a member of the Workers Advocacy Advisory Committee of the Department of Energy from January 2001 through December 2002. That Advisory Committee was appointed to assist the Department of Energy in implementing its responsibilities 

under EEOICPA. 

I want to thank you for the opportunity to testify on the implementation of the 

EEOICPA. 

26

The AFL–CIO and our affiliates have a significant interest in the implementation 

of this program because our involvement since the nuclear weapons program began 

as the Manhattan Project in the early 1940’s when members of our affiliate unions 

built, and maintained the many facilities used to develop and maintain nuclear 

weapons. Our members have also served as the principal production and operating 

personnel of these weapons facilities. For decades, the AFL–CIO, the Building and 

Construction Trades Department (BCTD), Metal Trades Department, PACE, the Laborers and other unions have worked to secure safety and health rights and protections and just compensation for these workers. 

As we have testified before Congress many times, these workers were engaged 

and continue to be engaged in activities vital to the security of the United States. 

They deserve to be treated with fairness and dignity. 

EEOICPA was passed in recognition of the fact that the work at these facilities 

put workers at risk of injury, illness and death from exposure to radiation and various toxic chemicals and materials used in the nuclear weapons program. Secrecy 

put these workers at additional risk. EEOICPA was Congress’ recognition and determination to compensate workers and their families even if it would not make them 

whole. 

Congress directed the President to implement this program. By Executive Order 

the program was assigned to the Departments of Energy, Labor and HHS. 

Unfortunately, the experience with the implementation of this program is just not 

what these sick workers or their survivors deserve, nor does it meet the objectives 

Congress set forth in the Act. Energy workers with radiation-induced cancers need 

timely compensation and that is not happening with many thousands of claimants. 

Subtitle B of the Energy Employees Occupational Illness Compensation Program 

Act (EEOICPA), 42 U.S.C. §§7384–7385, enacted in 2000, established a federal program to compensate workers at Department of Energy atomic weapons and contractor facilities for illnesses resulting from radiation, beryllium, and silica. The program provides a $150,000 lump sum payment and prospective medical benefits to 

covered employees or a lump sum payment to their survivors. To date, the Department of Labor has paid over $672 million in benefits. But there is a huge backlog 

of claims pending—more than 14,000—awaiting dose reconstruction by the National 

Institute for Occupational Safety & Health (NIOSH). Claims of workers with cancer 

who are awaiting payment because NIOSH has not completed their dose reconstruction arise in states throughout the country. 

NIOSH should streamline the procedures for evaluating these claims so workers 

and their survivors can be compensated in a timely manner as Congress intended. 

The fairest and most efficient way to do this is to streamline the procedures to add 

groups of workers to the Special Exposure Cohort so their claims can be considered 

on an expedited basis. 

Radiation Dose Reconstruction and Special Exposure Cohorts under EEOICPA 

When EEOICPA was passed, the Congress designated certain groups of workers 

with cancers linked to radiation exposure to be included in a special exposure cohort 

(SEC) because DOE’s radiation exposure records were so poor it was not possible 

accurately to reconstruct each employee’s radiation dose. Under the Act, workers 

employed at DOE gaseous diffusion plants in Oak Ridge, Tennessee, Paducah, Kentucky or Portsmouth, Ohio were automatically included in the SEC. For these employees, compensation is paid without regard to an employee’s individual radiation 

dose if the claimant has one of the designated cancers and meets the Act’s general 

exposure/employment criteria. These claimants receive compensation for cancer 

promptly. 

But for workers with cancer from all other DOE facilities, or for those with cancers other than those specified as presumptively linked to radiation exposure, different, complicated procedures were established—requiring either individual dose 

reconstruction or a lengthy process to designate additional members of the SEC. 

NIOSH has been given responsibility for both of these activities, but because of the 

complexities involved, has fallen years behind. More than 14,400 claims are now 

pending dose reconstruction and no new members have been added to the SEC. So 

far, NIOSH has forwarded completed dose reconstructions to DOL for only 700 

claims. At the rate NIOSH is going, it will be years before these backlogged claims 

are processed and victims receive compensation. Meanwhile, DOE workers with cancer do not have the medical or cash benefits Congress provided and their widows 

grow old without the economic security to which they are entitled. 

Backlog of Pending Claims at NIOSH Awaiting Dose Reconstruction 

The backlog of pending claims at NIOSH is a problem that affects workers 

throughout the country and is particularly severe at some of the larger DOE weapVerDate 0ct 09 2002 20:09 Jul 12, 2004 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 H:\DOCS\90178.SF EDUWK PsN: NNIXON
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ons facilities where large numbers of workers were exposed to radiation. These facilities including Rocky Flats (CO), Iowa Ordnance Plant (IA), Idaho National Lab 

(ID), Fernald (OH), Los Alamos (NM), Nevada Test Site (NV), Savannah River (SC), 

Oak Ridge National Lab (TN), and Hanford (WA). The table below shows the number of claims (and individual cases) from all Department of Energy facilities awaiting dose reconstruction at NIOSH by state (for states with more than 50 claims).

One of the major reasons for this delay is that for many workers DOE radiation 

exposure records are incomplete, inaccurate or nonexistent. When NIOSH reconstructs a radiation dose, it must make educated guesses as to what an employee’s 

dose was likely to have been. While NIOSH claims that its process is employee 

friendly, nobody can gauge whether NIOSH dose reconstructions bear any reasonable relationship to an employee’s actual radiation dose. We cannot state too strongly the need to be sure that this aspect of the program is transparent and credible 

to the claimants and their families. 

As stated earlier, this entire compensation program has to be measured against 

the very long and well documented history of secrecy and deceit on the part of the 

Department of Energy and its predecessor agencies tracing back to the earliest days 

of the Manhattan Project. This long history and the resultant distrust of the DOE 

requires an open and transparent program. This is especially true given the technical complexity of dose reconstruction and the reliance on DOE to provide the dose 

data. 

Many thousands of our members served their country in the cold war by working 

at these facilities often under very difficult conditions. They deserve to be treated 

with respect and should have a compensation program that they can trust and understand. 

Unfortunately, some of the activities that NIOSH has undertaken appear to be 

at cross purposes with this goal of an open and transparent program. As an example, NIOSH has recently implemented a plan to develop site profiles for each major 

site as a framework for individual dose reconstructions. These profiles would include 

the major sources of exposure data for the site. However, NIOSH’s procedure included no opportunity for input into these site profiles by unions, interested parties, 

etc. until after the profiles were complete and being used by NIOSH. This procedure 

only compounds the past mistakes made by DOE to hide information from the exVerDate 0ct 09 2002 20:09 Jul 12, 2004 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 H:\DOCS\90178.SF EDUWK PsN: NNIXON

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posed workers and their families. The Advisory Board raised objections to this approach and has asked NIOSH to develop a more open process involving the local 

unions and other interested parties in the development and review of these site profiles in order to ensure the credibility of the dose reconstruction program. The Savannah River Site is a prime example. The site profile was released in August without any discussion or review with the local unions or other interested parties. 

NIOSH’s initial excuse, that there were no unions at SRS, totally missed the fact 

that there have been union workers engaged in building and maintaining the SRS 

facility since the first construction activity a half century ago. We would note for 

the record, that after extensive protest, NIOSH is now undertaking a meeting at 

SRS in November to discuss this profile with the local unions and interested parties. 

These activities should not have to be undertaken only after claimant protests. 

Similiar concerns about the uncertainty of dose reconstruction have been raised 

about Department of Defense radiation dose estimates for military personnel. Unlike DOE nuclear workers, under veterans’ compensation benefits, all veterans with 

specified cancers are presumed entitled to compensation. Dose reconstruction is 

used to determine whether to compensate veterans for other diseases. The National 

Academy of Science’s Institute of Medicine recently evaluated the DOE dose reconstruction process. It concluded: 

Because specific exposure conditions for any individual often are not well 

known, many participants did not wear film badges during all possible 

times of exposure, and the available survey data used to input the models 

often are sparse and highly variable, the resulting estimate of total dose 

form many participants are highly uncertain. 

Problems With Proposed NIOSH SEC Procedures 

There are major problems with the proposed procedures for the designation of additional members the SEC. Under EEOICPA, additional members of the SEC may 

be designated when it is not feasible to estimate with sufficient accuracy the radiation dose of the affected workers. (Section 3626). This spring, NIOSH proposed procedures for designating additional members of the SEC. The NIOSH proposal was 

strongly criticized by the Advisory Committee on Radiation and representatives of 

DOE workers. Decisions on adding additional members to the SEC can be expected 

to take at least two more years—almost five years from the enactment of EEOICPA. 

Employees seeking designation as members of the SEC will have to meet a high 

burden of proof—a burden not imposed on fellow workers from gaseous diffusion 

plants who have already received compensation for their radiation induced cancers. 

Workers at DOE facilities such as Hanford, Rocky Flats, and Savannah River, and 

other locations, are treated unfairly under EEOICPA. Their colleagues at gaseous 

diffusion plants, like veterans, are presumed eligible for compensation if they get 

certain cancers and many have received compensation. Meanwhile, these other 

workers, whose radiation doses likely were just as high and for whom radiation dose 

records are just as sparse, must individually demonstrate their right to compensation. The process for doing so, dose reconstruction, is too slow and inherently uncertain. Only a handful of workers outside the SEC have actually received compensation for their cancers since EEOICPA was passed. 

Streamlining SEC Procedures and Expediting Compensation for Victims 

EEOICPA needs to be fixed so DOE workers with radiation induced cancers or 

their survivors receive timely compensation. The following modifications to the program would accomplish this goal by simplifying and streamlining the procedures for 

adding additional groups of workers or facilities to the special exposure cohort. 

NIOSH has the authority to implement each of these policies, but has so far failed 

to do so: 

• Set deadlines for NIOSH to respond to petitions to add workers to the Special 

Exposure Cohort—providing 90 days for response and an additional 45 days 

where NIOSH requests review of the petition by the Advisory Committee on Radiation. 

• Allow NIOSH to determine which petitions for adding groups to the SEC need 

to be reviewed by the Advisory Committee. (Currently all petitions, even those 

pertaining to small groups of workers must be referred to the Advisory Committee.) 

• Clarify that NIOSH may add a group of workers to the SEC if it determines 

that representative records of radiation doses for the individual are incomplete 

or missing and that radiation may have caused or contributed to specified cancers among members of the group. (These were the criteria that were used to 

designate workers at gaseous diffusion plants as members of the SEC in the 

29

original Act.) Currently, NIOSH attempts to reconstruct doses even if individual 

monitoring records are not available. • Establish the same criteria for compensation for new groups of workers added 

to the SEC as those set for gaseous diffusion workers in the original Act. 

These revised procedures will streamline the process for evaluating petitions for 

expanding the SEC, and for those groups of workers who are added, expedite the 

process for evaluating their individual claims for compensation. Once added to the 

SEC, the same criteria for compensation will apply to these workers as applies to 

workers at the gaseous diffusion plants. The recommended procedures do not expand the number of workers eligible for compensation, nor should it change the anticipated costs of the program. Most of these claimants are already eligible for compensation. They are just required to wait far too long to receive the compensation 

they are due. Streamlining the process and clarifying the criteria by which these 

employees may be added to the SEC simply changes the procedures by which the 

merits of their claims are judged and speeds up the compensation process. 

Mr. Chairman, our organizations have a longstanding relationship with the Department of Labor and with NIOSH. We supported the assignment of this program 

to them. We believe that the Department of Labor has done a very commendable 

job so far in getting its program up and running. As the comments submitted by 

our respective organizations to NIOSH make clear, we believe that NIOSH is simply 

misreading its responsibilities under the existing law and has proposed a regulatory 

scheme that will not work and which will result in both a costly process and an intolerable wait by claimants for relief. If NIOSH persists in interpreting the statute 

with such restrictive requirements, then, we see no alternative but to support 

changes to the law that will ensure equal treatment of all claimants under this program. 

Mr. Chairman, I would like now to turn to other serious problems with EEOICPA, 

namely the Subtitle D program administered by the Department of Energy. 

Background on Subtitle D of EEOICPA 

Subtitle D of the Energy Employees Occupational Illness Compensation Program 

Act (EEOICPA) was intended to take DOE out of the business of fighting state 

workers’ compensation claims brought by sick nuclear workers who were employed 

at DOE defense nuclear sites. Benefits are provided for workplace-related disabilities and medical costs. In September 2002—almost two years after the enactment 

of EEOICPA—DOE issued a rule governing the operations of the Physicians’ Panel 

(10 CFR Part 852). The rule established the criteria for Physician Panels to determine whether an illness or death arose out of and in the course of employment by 

a DOE contractor and exposure to a toxic substance. That criteria is whether ‘‘exposure to a toxic substance at a DOE facility during the course of employment by a 

DOE contractor was a significant factor in aggravating, contributing to or causing 

the illness or death of the worker at issue.’’ (See: 10 CFR Part 852.8). 

A simple majority of a Panel (two of three doctors) must agree in order to issue 

a determination. The rule prohibits contractor involvement in contesting Physician 

Panel findings, but allows claimants to appeal adverse Physician Panel findings 

within the DOE’s Office of Hearings and Appeals. A total of 26 appeals have been 

decided to date. DOE estimated benefits and administrative costs for this rule at 

$130 million/10 years during the rulemaking. Physicians are selected by NIOSH—

instead of the DOE—in order to provide a measure of independence. There are approximately 120 doctors who have been approved by NIOSH for the DOE Physicians 

Panel. Due to the low rates of compensation ($55–60/hour), some physicians with 

clinical practices have withdrawn from participation. Once a Physicians’ Panel 

issues a positive determination, DOE is required to provide the claimant with assistance in filing their claim with a state workers’ compensation commission. 

Pursuant to EEOICPA, DOE must direct contractors not to contest the state 

workers’ compensation claims, to the extent allowable by law, and DOE may not reimburse contractors for legal costs of contesting such claims. Practically, this means 

DOE will instruct its contractors to send a letter to the state workers’ compensation 

board indicating that they will not contest the claim. However, this doesn’t necessarily mean that the claim will be paid, because some ‘‘payors’’ are not under 

DOE’s/contractor’s control and are unwilling to pay (e.g., exclusive state funds and 

insurers). 

States and insurance companies are not agreeing to be bound by DOE Physician 

Panel determinations. Although DOE entered into Memorandum of Agreements 

(MOA) with 12 states (AK, CA, CO, ID, IA, KY, NM, NV, OH, SC, TN, TX) during 

2002, none of these agreements require states to accept the findings of a Physicians’ 

Panel. All 12 states reserve the right to impose their own provisions of state law 

rather than abide by the findings of DOE or its Physicians’ Panel. 

30

For example, the DOE–Alaska Commission Agreement of 9/13/02 says: 

‘‘A positive determination pursuant to Part 852 [DOE’s Rule] has no effect 

on the scope of State worker compensation proceedings, the conditions for 

compensation, or the rights and obligations of the participants in the proceeding; provided that consistent with Subtitle D, such a determination will 

prevent DOE and may prevent a DOE contractor from contesting an applicant workers compensation claim, and DOE may agree to indemnify a DOE 

contractor/insurer for State of Alaska workers compensation claims.’’

To get valid claims paid, DOE is counting on its current site contractors, many 

of which are self-insured for workers’ compensation, to pay the claims and the DOE 

will reimburse them (using appropriated funds). At a number of DOE sites in IA, 

OH, KY, AK and CO, the DOE has not identified a ‘‘willing payor.’’ A ‘‘willing payor’’ 

is an entity which DOE can meaningfully direct to pay claims after a Physicians 

Panel determines that a claim is work related. DOE’s General Counsel has indicated 

that up to 50% of valid claims may not have a ‘‘willing payor’’. DOE has not inventoried those locations where it lacks a ‘‘willing payor.’’ DOE’s Worker Advocacy Advisory Committee (WAAC) warned the Secretary in August of 2001, and again in 

June of 2002, that the absence of a willing payor was a large, unresolved problem 

which would pose a ‘‘gross inequity’’ to claimants (as we are witnessing today in 

Alaska). 

On June 27, 2002 WAAC Chairwoman Emily Spieler (Dean of the Northeastern 

University Law School) wrote on behalf of the Committee: 

‘‘WAAC Members thought that there was no legal impediment to payment 

of these claims by DOE. But we also think that if DOE is unwilling or unable to pay these claims, it’s absolutely essential for DOE to seek additional 

appropriations or support alternative legislative solutions that will result in 

payment of these claims without throwing them into the state workers’ 

compensation systems to be litigated. If the latter occurs, insurers and state 

funds will not be required to waive any technical or other defenses to these 

claims, and it is highly likely (after considerable administrative expense) 

that few, if any, of these claims will be paid.’’

The Advisory Committee accurately described the problem that has now arisen in 

Alaska. 

The Committee concluded: 

These claims should be handled in the same manner as the claims of current contractors, through a central non-risk bearing third party administrator, with a source of payment designated by the Department. 

In response to this recommendation, Assistant Secretary Cook wrote (8/9/02): 

‘‘The issue of mechanisms of payment of claims where there is no current 

contractor with responsibility for paying a claims remains a concern. We 

will continue to explore possible remedies with the WAAC, the General 

Counsel and Congress to correct this inequity.’’

DOE allowed the Advisory Committee’s charter to expire 1/1/03. Neither DOE nor 

the Administration has proposed any solutions, despite repeated requests from Governors, workers’ compensation commissions and Members of Congress. 

DOE has received approximately 18,823 claims for assistance as of August 29, 

2003. In the year since its rule has finalized, DOE has made very little progress 

on its backlog. 

Only 74 (0.3%) have been decided by the Physicians Panel (45 accepted and 29 

rejected) and 132 (0.6%) are in the Physicians Panel process. DOE has not even 

started case development work on 14,434 cases (71%). DOE estimates a backlog of 

5 years. Others foresee a much longer time to process claims. In testimony before 

the Senate Energy Committee in February, Secretary of Energy Spencer Abraham 

committed to have 100 claims per week completed by August of 2003. But the DOE 

failed to meet that goal. 

DOE has received a significant amount of funding to run the Workers Advocacy 

Office. The resources have been there, but the ability to get the program off the 

ground is lacking. 

Speedup Claims Processing 

There are many possibilities for speeding up claims processing including requesting the assistance of the Department of Labor in developing claims and using the 

existing former worker programs to assist in developing claims, just to name a few 

actions. 

Willing Payor 

There are several options available to resolve the willing payor issues: 

31

DOE could enter a into cost-reimbursement arrangements with a national (or site 

specific) non-risk bearing Third Party Administrator (TPA) to serve as the willing 

payor where (a) DOE contractors are no longer present at DOE sites, (b) where DOE 

contractors were not self insured and an insurance company ‘‘owns’’ the claim, or 

(c) where there is an exclusive state fund (OH, NV and WA). Claims payments 

would be subject to appropriations. Levels of benefits would be set by state compensation agencies. The TPA would assume full liability in lieu of employers, insurers or others who could object to a claim. Presumably disability determinations 

would still have to be made by a state compensation panel. The Advisory Committee 

suggested this approach. 

DOE could enter into contracts with exclusive state funds, insurers or TPAs to 

assume payment of claims in each instance where there is no willing payor. Ohio’s 

exclusive state fund has made such a proposal. 

Conclusion 

Congress has made a firm promise that each nuclear worker with radiation cancer 

will receive compensation. That promise must be kept. We must also work to fix the 

problems with the DOE program, so those with other work-related illnesses caused 

by toxins at the DOE complex will receive workers’ compensation payments. 

Thank you. 

Chairman NORWOOD. Thank you, sir, very much. I will tell you, 

I do not know who they complained to in the Department of Labor, 

but all of them have talked to me. 

I would like to recognize Congressman Wamp now, for a brief 

statement. 

Mr. WAMP. I just want to thank the Committee, Chairman 

Boehner, Chairman Norwood, the Ranking Member, and everyone 

for taking this important step in a program that has been very 

complicated and difficult to administer. There are a lot of questions 

out there today with the Grassley amendment pending in the Senate as to the future of this program. While this hearing was not 

called to discuss that, the timing of the hearing is very critical because a lot of people are wanting this to be done in a more effective 

way, and DOL actually has done a lot of things very well. There 

is $170 million that has been paid to Oak Ridge workers already, 

which is very significant. 

I just want to thank you all for doing this. This is a matter of 

life or death to a lot of people that I actually represent, so this really hits home when you run into these people at the grocery store 

or at church and they talk to you about their stories and you know 

their family members, you know that this is a program that is 

being administered by the government, but it has real life consequences. 

Thank you for doing this. I hope we can have more hearings. 

Other Committees with jurisdiction have not been as quick to respond to our request for hearings, so thank you very much for having this most important hearing. 

Chairman NORWOOD. Thank you, Congressman Wamp. We appreciate your concerns. I have similar concerns as you do. I think 

probably at the end of the day, one has to wonder, we do not want 

to change course maybe after we have spent 2 years getting ready 

to do it right. I am going to ask during my time a few of those 

questions. 

Mr. Hallmark, I would like to start with you. The Savannah 

River site actually is not in my district. It is right across the Savannah River in South Carolina. I have a lot of constituents who 

live in my district. I have had more than 300 of them file claims 

32

as a result of their working for the Nation and the people of the 

country at Savannah River site. 

Only a handful of these people have received a final decision, and 

I had hoped maybe you would tell me what I should say to them 

when they ask me why so few have received a final decision. If you 

will tell me that, then they have one other question they want me 

to ask. 

Mr. Hallmark? 

Mr. HALLMARK. Thank you, Mr. Chairman. 

Clearly, the major issue associated with the cases that are in 

your district is the NIOSH dose reconstruction process. The large 

number of cases that have come to us must have that causation 

analysis done. 

Chairman NORWOOD. Do I tell them that is the problem, that 

analysis takes a long time? 

Mr. HALLMARK. It does. 

Chairman NORWOOD. I’m looking for a sensible answer to tell 

people who are concerned. 

Mr. HALLMARK. Absolutely. My understanding is that NIOSH 

has published the site profile for Savannah River. They are now in 

a position and in fact have already moved quite a number of the 

Savannah River cases into the final stages of dose reconstruction, 

so it is my anticipation that we will be receiving back from NIOSH 

within the next few weeks and months— 

Chairman NORWOOD. Define ‘‘final number.’’ Give me some clue 

what you are talking about when you say a large number has been 

moved over to NIOSH. 

Mr. HALLMARK. John probably has the number. 

Chairman NORWOOD. Anybody. 

Dr. HOWARD. Mr. Chairman, we have 1,824 claims transferred to 

us from Savannah River, 2,129 interviews scheduled. We have completed 173. We have draft reports on 318. Our technical basis documents for that, that allows us to complete all of them, is done. We 

are going to Savannah River on November 11th to have a meeting 

with the workforce there. We should see those claims coming 

through the system very shortly. 

Chairman NORWOOD. Of course, Savannah River is in my backyard. There are other members who have similar problems. Is that 

type of percentage occurring across the country, or are we doing 

better than Congressman Wamp at Oak Ridge or Mr. Strickland? 

How is it coming across the nation? 

Dr. HOWARD. I think from our perspective, when we are looking 

at the dose reconstructions that we have in our system, we are primarily dependent, I think, right now, in the next 60 to 90 days, on 

completion of our technical basis documents, which will allow us to 

take the dose reconstructions that we have pending, for any of 

those sites. Once our technical basis document is done, and we 

have reviewed it with the workforce and DOL has reviewed it, then 

our claims will start moving through the system very rapidly. 

We are averaging about 60 days once we have that information 

done. 

Chairman NORWOOD. I am going to tell them the problem it is 

taking so long is this is a very complex situation in which we have 

determined dose reconstructions. That is a true statement? 

33

Dr. HOWARD. I think I would agree with Don’s comment. This is 

a scientifically complex dose reconstruction issue. There is complexity to it. In the beginning, when we were looking at this, we 

thought we could take an individual approach. About six to 8 

months ago, we decided we need technical basis documents for an 

entire site, to look at radiation doses, the types of radiation that 

was used, the sources, et cetera. Those are being completed now, 

so that we can do production scale dose reconstructions very quickly. 

Chairman NORWOOD. I think our folks will understand that. 

They are bright, hard-working people. They are going to understand that explanation. 

The next question they want me to ask is OK, we know it is difficult. We know it is complex. Give us a timeframe. When can we 

expect an answer? I want to go home and tell them. 

Mr. HALLMARK. In any workers’ comp system, there are always 

variables, and not every case is going to go through the process at 

exactly the same time. I think my understanding of what NIOSH 

is doing is that the bulk of the cases in Savannah River should 

move within the next three to 4 months through their process and 

coming back to us. Some of those will start in the next few weeks 

and some will take longer in that time period. 

I would expect that the majority of the dose reconstruction cases 

will be through their system and through ours by the early part of 

2004. That is probably a better situation than it will be in other 

sites, because the site profile is in fact further along and completed 

in Savannah River, and they are still working on it in other locations. 

Chairman NORWOOD. I can tell them, the majority of this is going 

to be taken care of by the early part of 2004, and if that is not correct, I can say, OK, here is Mr. Hallmark’s telephone number, call 

him. 

Mr. HALLMARK. I think it is on the Web. I believe you are going 

to be able to do that, sir. 

Chairman NORWOOD. I can tell Doc Hastings out at Hanford the 

same thing? 

Mr. HALLMARK. As I said, the issue of the completion of the site 

profile is critical. 

Chairman NORWOOD. How are the rest of the folks doing with 

site profiles? 

Mr. HALLMARK. John can tell you where they are with Hanford, 

but I know there has been substantial work done at Hanford and 

it is progressing. 

Dr. HOWARD. We have about ten technical basis documents that 

are in process now that we hope to complete by the end of December. Hanford is almost nearing completion. 

Chairman NORWOOD. Obviously, we have votes going on. Major 

Owens wants to go ahead and ask his questions, and we will do 

that, and then we will recess right after your questions, go vote, 

and we will be right back. Mr. Owens? 

Mr. OWENS. To begin, do you contemplate a great deal of fraud 

in this program? The probability of causation is an algorithm used 

to determine if a diagnosis of cancer is or was likely than not 

34

caused by exposure to radiation while in the performance of duty. 

That is in your chart in terms of probability of causation. 

Are people exposed to large amounts of radiation somewhere else 

other than on a work site? 

Mr. HALLMARK. There is naturally occurring radiation and other 

sources of radiation. 

Mr. OWENS. Enough to be significant in terms of their health? 

Mr. HALLMARK. Potentially, yes, but this definition that you are 

seeing here is basically extracted from the statute. 

Mr. OWENS. What degree of fraud have you come across? 

Mr. HALLMARK. I do not think fraud is an issue that we have 

been particularly focused on. Obviously, any system like ours has 

to have criteria and control processes, because if you are giving out 

Federal monies— 

Mr. OWENS. What I am trying to get at is why is the process so 

slow and why is it so complicated? Mr. Elisburg? 

Mr. ELISBURG. That is the dichotomy I was pointing out in my 

testimony. Savannah River, Hanford, are not part of the special exposure cohorts. When Congress designated Portsmouth, Paducah, 

the Oak Ridge gaseous diffusion plant, and Amchitka Island, those 

workers simply if you had the disease, if you had the employment, 

you were presumed to have the radiation exposure, and you are 

getting paid. 

Savannah River, Hanford, many of these other sites— 

Mr. OWENS. What about Niagara Falls? 

Mr. ELISBURG.—Niagara Falls, they are all the same kinds of 

workers, same kinds of exposures, but they have to go through 

these multiple hoops of establishing exposure in situations where 

there are no records of exposure, or the records are poor, or they 

have been destroyed, or they were done 35 or 40 years ago, and you 

are going into this vast morass, and when the NIOSH people said, 

well, we have to come up with some formula, they created this 

what we call sort of nightmare process to try to extrapolate and 

create a situation to show that you could have been exposed. That 

is not to say that eventually they will not come up with some exposure data, but it will be a guesstimate. It will be a best guesstimate. 

That is why you are taking years and years for these folks who 

are not in the special exposure cohorts, and a much shorter period 

of time once you have been determined to be in that special group. 

There is really no difference as between the workers who are at 

one of the sites or the others, and the reason they were put into 

the special exposure cohorts was there was an understanding that 

they didn’t have the records. If they do not have the records at 

these other places, it seems to me that is the case for treating them 

the same. 

Mr. OWENS. Questions have been raised about the sense of urgency and the efficiency of the way the program is being implemented. 

I understand the president of PACE, the Paper Allied Chemical 

and Energy Workers Union, in Hanford, Washington, had never 

met any staff from the Hanford Resource Center, did not know 

where the Resource Center is located, how many employees are emVerDate 0ct 09 2002 20:09 Jul 12, 2004 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 H:\DOCS\90178.SF EDUWK PsN: NNIXON
35

ployed at the Resource Center in Hanford, and what you are doing 

to improve outreach in a place like Hanford. 

Mr. HALLMARK. That would the Labor Department. We jointly 

run the resource centers with the Department of Energy in ten 

sites. Hanford is a site where we are keenly aware that we need 

to do a better job. 

We have not received as many claims, given the size of the population of the people who have worked in Hanford, as we have in 

other sites, and certainly not as much as we expected, so one of the 

things, as I indicated in my statement, that we are going to be 

doing in 2004 is working very hard to make sure that outreach 

happens, and Hanford is one of the real focuses. 

One of the things we are also doing, Mr. Owens, is we are working directly with union groups, with the Committee for the Protection of Worker Rights, to find people who may have left the Hanford area and are somewhere else. 

We have a multi-faceted approach to try to make those kinds of 

contacts happen and make the program much more transparent. 

Mr. OWENS. Representatives of PACE contend that a mobile resource center is actually one employee in a hotel room with a 

phone, no computer, little or no background materials, for a single 

day. The question is realistically how many workers can be helped 

with that kind of mobile resource center. 

Mr. Chairman, I would like a second round of questions so I can 

pursue this later. 

Chairman NORWOOD. Yes, we will do that. What we will do is recess now. We have two votes. We ask your indulgence. We will be 

back just as fast as we can and continue this. I think both of us 

have a lot of questions. 

Mr. Hallmark, get ready. I am going to ask you about the benefit 

of doubt for claimants when we get back. 

[Recess.] 

Chairman NORWOOD. The Committee will come to order. 

Mr. Hallmark, this business of the claimants being given the 

benefit of the doubt in terms of whether or not their illness was 

caused by radiation on the job, explain that policy to me a little bit. 

Mr. HALLMARK. I believe the reference you are making is in the 

statute itself by establishing an ‘‘as likely as not’’ criterion, pointed 

in the direction of benefit of the doubt. I believe the real focus of 

your question is with respect to how NIOSH is implementing dose 

reconstruction and the kinds of assumptions they are making as 

they do that work. 

Dr. HOWARD. And I think that is correct. What we do in terms 

of reconstructing a dose is to look at all the data that is available. 

In many cases, the data is incomplete in that there is missing monitoring data about the dose that the person incurred years ago, so 

the idea of giving the benefit of the doubt is making assumptions 

that give the benefit of the doubt to the claimant, assuming circumstances that are likely to over estimate the dose that the person would have been exposed to. 

For example, we might assume that all the employees involved 

in a process received the highest levels of radiation monitored for 

any employee in the process, and that we give that dose then to 

everybody. 

36

It occurs when the data that we get back from DOE is not totally 

complete, so we make those assumptions that benefit the claimant. 

Chairman NORWOOD. How often does that happen, that you do 

not get data back that is complete? 

Dr. HOWARD. Oftentimes, the data that we get, especially for individuals at multiple sites, may have some gaps in it. I do not 

know an exact percentage. I would ask Mr. Elliott if he had some 

idea about how often that occurs. 

Mr. ELLIOTT. Thank you. I think we could honestly say that almost on every case, we add dose into the dose record. We account 

for mis-dose, unmonitored dose, instances where a particular radionuclide was not monitored, we factor that in and put that back into 

the dose record for our estimation purposes and our reconstruction. 

Chairman NORWOOD. If there were 300 claimants—and forgive 

me for using SRS, I just know a little something about that—if 

there are 300 claimants, it would appear to me that they would all 

be claiming the same thing about the same time, that there might 

have been exposure to radiation. Is that not true? 

Dr. HOWARD. Yes. 

Chairman NORWOOD. If you do not have enough information, it 

affects all 300 of them at a particular given time? 

Dr. HOWARD. Indeed, it may affect an entire group of employees 

or a smaller group at that site. 

Chairman NORWOOD. You are saying to me that you are trying 

very hard to give these claimants the benefit of the doubt, that 

they should not be held lacking just because there was not good 

records kept? 

Dr. HOWARD. Exactly. It is not their fault that the records are 

missing or there are gaps in the monitoring records. 

Chairman NORWOOD. Dr. Howard, tell me, I think it would be interesting to the Committee, how do you determine the amount of 

radiation that an employee is exposed to? Tell me a little bit about 

that process. 

Dr. HOWARD. I think I am going to ask Mr. Elliott to expound 

on that, but clearly, what we are doing is we are trying to look at 

the exposure, the total exposure of radiation that employee has received over their working life, and then looking at whether or not 

it is probable that the adverse health effect that they are claiming, 

the cancer, arises from that exposure. That is the scientific complexity. 

Larry? 

Mr. ELLIOTT. Thank you. We take into account the type of material that was handled by these workers, what kind of radionuclide, 

what kind of radiation exposure they encountered. We factor into 

their dose reconstruction occupationally required medical x-rays 

that were required as a condition of employment. We think that is 

a radiation dose that should be accounted for in their record. 

We strive to do the best job we can with the information that we 

have, and when that information is lacking, we look to what we 

call the course term, the type of material that was used and what 

kind of radiation levels came from that particular type of material. 

Chairman NORWOOD. What you are describing is why it is difficult, in a roundabout way. 

37

Mr. ELISBURG. Mr. Chairman, can I make one observation about 

that? 

Chairman NORWOOD. You certainly can. 

Mr. ELISBURG. The verdict is kind of out as to whether this complex system that NIOSH is trying to put in will work at all, because there have not been enough cases to really see. 

If you are familiar with the Savannah River site, for example, it’s 

about half the size of Rhode Island, if not larger, we have members 

who may have worked at a given part of that facility in one of the 

many plants there day in and day out at the same place, and perhaps you can measure what they are talking about. 

We have many, many of the construction workers, for example, 

who may have worked across that site with its many different facilities, some of which are located five or eight miles apart, with 

many different kinds of exposures over a 20 or 30-year period. 

In the absence of the kinds of records that in theory you would 

have of their exposure, and many of them were not even monitored 

for radiation exposure, I think it is going to be a very difficult and 

long-drawn-out process to construct the dose reconstructions for 

these deserving workers. 

Chairman NORWOOD. Are you saying to me that—I am using my 

example. Are you saying to me that all 300 workers could potentially have different amounts of radiation, and it is very hard to determine—in other words, they cannot be grouped together as a 

group? 

Dr. HOWARD. Yes, sir. 

Chairman NORWOOD. Were you saying they are grouped together 

as a group? If one claimant at SRS is entitled to benefits because 

of what has happened over the past 25 years and considering what 

you do and do not know, does that mean all 300 of them are entitled? 

Dr. HOWARD. I think the value that we see with the technical 

basis documents, doing a survey of the entire site, figuring out historically what doses have occurred in terms of the site and where 

employees are, the technical basis document will largely help us 

through that process. We see that as an important addition to the 

dose reconstruction process. 

Chairman NORWOOD. My time has expired. I will get back to this 

shortly. Mrs. Blackburn, we welcome you. You have not had any 

time for questions. You do now. You are recognized for 5 minutes. 

Mrs. BLACKBURN. Thank you, Mr. Chairman. I want to thank all 

of you for your testimony, and for the opportunity to listen to you 

today, but also to talk with you. I hope it is the beginning of a dialog. 

In my district, Tennessee’s 7th Congressional District, we have 

a spot, and from 1949 to 1965, at the Clarksville Modification Center, they tested and modified the components of nuclear weapons. 

Dr. Howard, I can see you are nodding your head. I am sure you 

are familiar with this. 

Throughout the course of its operations, hundreds of workers 

were exposed to beryllium, and there have been many cancer cases 

as a result. My constituents worked at this facility over 40 years 

ago, and because their work was classified, there are very few 

38

records that provide the documentation that you all deem necessary for them to receive compensation. 

I understand that a person can receive compensation through the 

Department of Labor without having worked for a special exposure 

cohort, but that it is difficult, and it is hard to provide the documentation that you require. 

According to DOL stats, people who worked at the Clarksville facility have filed over 300 claims, and not one of these claims has 

been approved. I am trying to figure out, sitting here listening to 

you all and listening to the example from the Savannah River 

case—what I am trying to do, and you all bear with me now, because I am a freshman, this is my first year here, but I want to 

figure out why my constituents’ cases have not been approved, and 

what we need to do so that these workers can receive the compensation they deserve. 

I would like to know how many claims has DOL approved for an 

individual who did not work at a special exposure cohort, and also, 

Mr. Hallmark, you used the figure on your handout of total number 

of cases, 36,597. Are my constituents’ cases included in that number of total cases that have been presented to you all, but not resolved? 

The other thing I would like to know is how many other places 

like the bird cage in Clarksville, Tennessee do we have here in the 

United States? 

Mr. HALLMARK. There are a number of questions there. 

Mrs. BLACKBURN. Yes, sir, it is. I am a patient person. I will wait 

for those answers. 

Mr. HALLMARK. First of all, the 36,000 cases, I believe, is all of 

the cases that we have received from all over the country. 

Mrs. BLACKBURN. That would include those from the bird cage? 

Mr. HALLMARK. That would include yours. I do not have the 

exact number for the Clarksville site, although I noted there 

were— 

Mrs. BLACKBURN. About 350. 

Mr. HALLMARK.—quite a number from your district specifically. 

We are able to take beryllium cases to closure. They are in that 

group of four types of claims that I explained in my talk, that we 

can take directly to recommended decision, that do not require a 

NIOSH review. 

I know a number of cases have been approved for employees in 

your district. Mr. Tersick, who is the director of the energy program for us, just handed me this document which shows 21 payments for residents in your district. They may not all have worked 

at the Clarksville facility, because the residents could have been 

someplace else. 

Beryllium cases have been taken to closure. You may have seen 

a number of cases denied because individuals have filed a claim 

with us under Part B which really should have been filed under 

Part D. 

That is an individual who had, let’s say, an asbestosis or other 

pulmonary condition not related to beryllium. Those claims are not 

eligible for coverage under the Part B program. They are eligible 

for consideration under the Part D program that the Department 

of Energy runs. 

39

Of the cases that we have denied, roughly two-thirds fall into 

that category. They are simply, really, people who came through 

the wrong door. 

With regard to beryllium cases, we are moving on those. I do not 

believe there is a significant backlog. Obviously, not everyone who 

presents a claim that they had a beryllium condition will be able 

to in fact prevail. They may not be able to show there is documentary evidence that their particular medical condition was generated 

by beryllium. 

If we have a diagnosis, if someone meets the test, which involves 

specific kinds of tests for beryllium sensitivity and disease, then 

their claim would be approved. 

Mrs. BLACKBURN. Thank you, sir. 

Dr. HOWARD. We have 51 claims for dose reconstruction from the 

Clarksville facility that we have, sent from DOL. Those are moving 

through our system. Our technical basis document or site survey 

for the Clarksville facility will be completed in December, and then 

those claims will move through our system fairly quickly. 

Chairman NORWOOD. Dr. Howard, do you have to have cancer or 

have been diagnosed with another disease to be a claimant? 

Dr. HOWARD. I think as Mr. Hallmark reported, the cancer is 

what we—we reconstruct doses for cancer. For beryllium exposure, 

which results in a pulmonary or lung disease, those do not come 

to us under Part B. We only do the dose reconstruction to determine the relationship to cancer. 

Chairman NORWOOD. Any of those that you deal with must have 

been diagnosed with cancer before they can legitimately be a claimant? 

Mr. HALLMARK. Right. The two tests are the covered employment 

at one of the sites, and as Congresswoman Blackburn indicated, 

there are 324 or so sites all over the country that are involved 

here. You have to have worked at one of those sites during the period of time when nuclear weapons were being produced, tested, or 

maintained, and you have to have a diagnosis for one of the diseases that we cover, one being cancer, one being beryllium disease, 

and the last being silicosis, which only applies to miners who were 

involved in tunneling for the test areas in Nevada and Amchitka. 

Chairman NORWOOD. We have 36,000 Americans diagnosed with 

cancer or another disease? 

Mr. HALLMARK. 36,000 employees have had a claim filed. That 

does not mean they were diagnosed, necessarily. A number of them 

filed a claim who had a diagnosis that would not match one of the 

three that I have mentioned. Those are the ones that really should 

have gone to the other program that the Department of Energy 

runs. 

Chairman NORWOOD. Mr. Owens, we are into the second round. 

You are recognized for 5 minutes. 

Mr. OWENS. While you are on the subject of numbers, can we assume that everybody who might possibly be eligible for this program has been reached? How much money has DOL spent by state 

on outreach? Has it done any outreach in connection with this program? 

Mr. HALLMARK. I cannot give you a dollar figure by state, certainly, but I know we have spent several million dollars each fiscal 

40

year on outreach. Part of it is for the resource centers that we 

opened in the ten sites. Also, for the traveling resource centers, 

which, notwithstanding your correspondent, are a little bit more 

than a person in a hotel room with a phone, and we have done 

town hall meetings. We have done roughly 600 public meetings 

around the country in places where we thought there would be people who might need to know about this program. 

Each time we do one of those programs, we do press releases. We 

contact the local media. We talk to the local delegations, congressional delegations, to make sure that we get as much information 

out in that area as we can. 

Mr. OWENS. For the record, can we get from you later on a more 

detailed statement as to how the outreach has been conducted state 

by state? 

Mr. HALLMARK. Absolutely. I believe, as a matter of fact, Congressman, that we have an event going on right now in the Buffalo/

Niagara area. I think we had an event up there this week. 

Mr. OWENS. For those individuals who come through the wrong 

door or they come to door B when they should be going to D, what 

do they have to do, go back and start from the bottom of the hill? 

How long does it take to process someone who has already started 

the process but they happened to be in D instead of B or B instead 

of D? Do they have to wait 10 years to come back, like immigration? 

Mr. HALLMARK. In fact, many of those individuals have filed the 

claim both ways. An individual can actually draw benefits from 

both programs simultaneously. Normally, if a person comes to us 

with a condition that may or may not be covered under Part B, 

they will have been advised to have filed both ways simultaneously 

so their case is already at the Department of Energy, as well. 

Mr. OWENS. You just said a lot of people have been turned down, 

had their claims processed and delayed, because they were in the 

wrong category. 

Mr. HALLMARK. I said they were denied. Most of the denials that 

we have made have been of that category, people who were really 

eligible or potentially eligible to be processed in Part D. 

In each case, as we make that determination, you do not fall 

within one of the conditions that we cover, we advise the claimant 

that you may need to go to the Department of Energy if you have 

not already done that. 

Mr. OWENS. They have to go and start all over? 

Mr. HALLMARK. If they have not already filed, then they would 

start with DOE’s program. 

Mr. ELISBURG. Mr. Owens, the fact of the matter is that the way 

the Department of Energy processes, trying to take the first in, 

first out process, you could in fact spend several years dealing with 

the Department of Labor, and then have to go back to ground zero, 

start again, and go through some years before the Department of 

Energy would get around to you. That is one of the unfortunate 

parts of the difficulty of this program for the claimants. 

If they get into the wrong pew here or the wrong queue, they are 

in deep trouble. 

Mr. HALLMARK. Excuse me. I would like to point out that our resource centers do attempt to give people information about those 

41

different options at the front end. That is one of the reasons why 

we jointly operate those resource centers with the Department of 

Energy, because the pool of claimants is shared, and people need 

to get information about both paths. 

Mr. OWENS. 36,597 have filed already. Is there any way you can 

estimate what the total eligible number is going to be? Do we have 

some kind of sense or a way of calculating what it is likely to be? 

Mr. HALLMARK. We had anticipated that by the first 2 years of 

the program, there would be as many as 80,000 claims filed. The 

actual receipts are about 60 percent of what we thought. Part of 

that is because we don’t believe we have done good enough outreach in areas like Hanford, and that is why we want to make an 

emphasis about that, because we think there are a number of individuals who have not come forward who probably should and could. 

Mr. OWENS. The algorithms and the cohort scrutiny, it just 

seems that there is a spirit here of trying to detect fraud. You are 

moving so slowly, and so many people have to wait so long. What 

is the reason for what looks like cruel and inhuman punishment 

by civil servants, bureaucrats, who administer the program? Why 

is this caution and these complicated formulas so necessary? When 

can workers in the following areas expect to have their claims completed through both NIOSH and DOL? This is a question that you 

cannot answer now, but I would like to have it submitted for the 

record. 

Rocky Flats; Iowa Ordnance plant; Idaho National Lab; Fernald; 

Los Alamos; Nevada test site; Oak Ridge; Niagara Falls; just a few. 

I think I would like to know when, in the implementation of this, 

we can expect that to happen. 

Mr. HALLMARK. If I could respond in general to your comment, 

Congressman Owens, as I indicated earlier, I do not believe there 

is an expectation on the part of any of the agencies involved that 

fraud is a significant issue or a serious concern that we are focused 

on. 

Mr. OWENS. In the algorithm, they say they want to make sure 

the radiation was a problem, and the person was exposed while 

they were on duty. That implies they are worried about people who 

will come in and they got radiation great enough to cause cancer 

while they were off duty or somewhere else, and they are trying to 

blame it on the exposure at the work site. 

Mr. HALLMARK. I believe that is driven directly by what the statute requires us to do, but the complexity and the delay that has 

been introduced is because determining whether a cancer was 

caused or not caused by radiation is a highly complex undertaking, 

and there is no marker, a given cancer does not have a marker, 

showing this was caused by radiation or not. 

Mr. OWENS. Is that common knowledge, that radiation is a major 

cause of cancer? 

Mr. HALLMARK. It is a cause. 

Mr. OWENS. A major cause. 

Mr. HALLMARK. It is a probabilistic determination. There is no 

way to tell that a particular cancer was caused or not caused by 

radiation. That is why we have the very complex process of dose 

reconstruction. That is why we have this statistical determination 

of probability of causation, which we use, and which is what— 

42

Mr. OWENS. One case was cited where the person had cancer of 

the throat instead of cancer of the esophagus, and they were told 

it was cancer of the esophagus that makes them eligible, but cancer 

of the throat does not. Do we have that kind of science which can 

peg the radiation doses to the DNA of the person, people exposed 

that would respond to any outside phenomena based on something 

inside them, so you have a variety of responses, but cancer is cancer? 

Mr. HALLMARK. Cancer in this instance is not cancer, Congressman. The Congress set up in establishing the special exposure cohort a list of specified cancers. 

Mr. OWENS. For instance, esophagus? 

Mr. HALLMARK. Yes. 

Mr. OWENS. Congress set that up? 

Mr. HALLMARK. Congress did. Some cancers are on that list and 

some are not. That is in fact what we have to follow, is the congressional— 

Mr. OWENS. Does science think Congress acted properly there, or 

would science question that kind of labeling? 

Mr. HALLMARK. I would defer to the scientists. 

Mr. OWENS. Dr. Howard? 

Dr. HOWARD. If I am a physician and I see a patient with cancer, 

my job is to treat them, not figure out exactly how they got there. 

In a compensation program, that issue is extremely important. If 

your cancer is work-related from your job, then you get compensation. Cancer causation is multi-factorial, and even an individual 

with radiation exposure, there are other causes. 

For lung cancer, smoking, for instance, is a significant cause of 

cancer. Radiation may be there. Radon bubbling up from people’s 

floors in certain parts of the country is a radiation exposure, but 

it is not work-related. 

The cancer causation, as Mr. Hallmark said, is probabilistic 

based on the cause. It is a difficult science. 

Mr. OWENS. A 32-year-old man could be exposed to enough radon 

from his basement to— 

Dr. HOWARD. No, but there may be genetic cases in his family 

because early familial colon cancer occurs. As I say, there are 

multi-factorial— 

Mr. OWENS. Mr. Elisburg, would you care to comment? 

Mr. ELISBURG. When this legislation was first being proposed in 

the last administration, a number of us went to the various elected 

officials and appointed officials and said, look, do not do this if you 

are not going to pay. Do not put people to this test if you are not 

going to see that they get paid for what happened to them when 

they went to work. 

When Congress finally passed this Act and they put the special 

exposure cohorts in for people, as you know, the process by which 

this bill was put together was a bit imperfect and a bit, perhaps, 

speedy. There are some edges to it, such as I think the difference 

between the throat and the esophagus, that perhaps could be fixed, 

and I think some of those, NIOSH was trying to fix in its proposal 

for getting into the special exposure cohorts, but the fact of the 

matter is they did set up some presumptions, and those presumptions are working fairly well. 

43

What has happened, of course, is that for those areas where 

there are no presumptions, what is happening is exactly what we 

had all hoped would not happen, that the scientists are trying to 

right a deed here. They are trying to ask workers to prove things 

that they have no ability to prove, and the agencies themselves 

have no way to really establish with the exposure levels and what 

was or was not a cancer. 

I think our view is if you worked at these facilities and you became ill with one of these diseases, it is the obligation of the government to make you whole, or at least to compensate you. They 

cannot make you whole. 

Having people go through these hoops, multiple hoops, does not 

really get to the point that I think Congress was talking about 

when they said people worked here for many decades, they got sick, 

they should be taken care of. 

Mr. OWENS. Thank you. I think I am out of time, Mr. Chairman. 

Chairman NORWOOD. We will start to conclude, but Mr. Owens 

has a lot of questions he would like to submit, and so do I. 

I find this is a very difficult situation. Congress, I think, very 

clearly said that people who have been injured on these work sites 

should be compensated. I totally agree with that. I think Congress 

also said, by the way, we do not care for you to compensate people 

that it is not justified for, so you are caught in the middle there 

trying to—if you start paying out millions and millions of dollars 

to people who really have not been injured, we are going to have 

you right back raising hell about that. You are darned if you do 

and darned if you do not. 

My concern about this is that the people in all of our districts 

who have served the country as well as anyone and as well as the 

military, certainly should be compensated if they have been made 

sick, whatever, from this work position. 

We are here to say we hope you will speed this process up. We 

would like to get fruition. We hope you do not deny anybody that 

should not be denied. 

Part of my concern is this came into being in the year 2000. I 

do not presume you had the scientists in NIOSH sitting there 

ready to tackle this. I presume that it takes a fairly high level of 

expertise to try to do what Congress asked you to do, and I presume you have been working over the last two and a half years to 

get ready so you can do it and do it as fast as you can. 

I want us, as Congress, to be a little careful that we do not throw 

all that past effort out now that you are on the verge of actually 

producing at a larger rate right here at the time that we should 

be able to accomplish this goal. 

I am very concerned about amendments and different things that 

might shake this thing up and cause the people who are deserving 

to be compensated to have it delayed for another two or three or 

4 years. 

Mr. Hallmark, I am looking forward to some finality next year 

in some of our cases. I do not presume to speak as to who should 

or should not be compensated. I guess if you have 36,000 claims, 

just real quick, what percentage of that would be of the total workforce that have worked at these sites? 

44

Mr. HALLMARK. We do not know the exact totals, because of subcontractors and construction workers and others who are not necessarily known to us, but DOE estimated roughly 650,000. We 

think with the addition of the atomic weapons employers and beryllium vendors, it may be toward 700,000 or more, with construction 

workers. 

It is a fairly large number. The 36,000 cases that we have so far 

represents perhaps 5 percent. 

Chairman NORWOOD. It is legitimate for the taxpayer, and I am 

very curious, it falls into the category a little bit of ergonomics, 

why only 36,000? Is that because you have not been out there reminding people that this program is a program, and if you did that 

better, would it go up to 80,000? If it were just 80,000, why did this 

particular 80,000 end up having a disease and the other 575,000 

not? 

Those are questions that are very difficult to answer, and it 

makes the determination of the 80,000 or the 36,000 that do have 

disease— 

Mr. OWENS. Will the gentleman yield for a minute? 

Chairman NORWOOD. Certainly. 

Mr. OWENS. You have to factor in there, too, how many are dead 

already. 

Mr. HALLMARK. There are quite a number of the 700,000 I just 

mentioned, probably more than half are deceased. 

Chairman NORWOOD. Their families can put in claims. 

Mr. HALLMARK. They can, but they may be less likely to be 

knowledgeable about the program. That is why outreach is very important. 

Chairman NORWOOD. There is still a small percentage that do 

have some disease and a large percentage do not. I would think 

that would slow the process down, and that you are trying to determine how to get to this. 

I ask on behalf of Major Owens, I kept hearing him say he would 

like to make sure that it is well-known to employees what their 

rights are. If the number is 36,000 and it is anticipated it ought 

to be three times that or four times that, that means somebody is 

not being informed, and we encourage you to do that right away, 

and speed this process on. 

I thank you all— 

Mr. OWENS. Will the gentleman yield? 

Chairman NORWOOD. I certainly will. 

Mr. OWENS. One more critical question. Has there been any studies done of the 600,000 or 700,000 workers, those who have died 

and the causes of death? Any studies in existence now or being 

planned? 

Mr. HALLMARK. There have been numerous studies done in these 

sites. NIOSH, I know, has done quite a number of exhaustive studies of a whole range of different events, and they may want to talk 

about it. 

Dr. HOWARD. There is an enormous body of information, most of 

which came through since the secrecy was lifted, about the exposures to these workers, about the illness, about people dying from 

the various toxic exposures at these bomb factories. 

45

Much of that formed the basis, I think, of Congress acting when 

they did a couple of years ago. 

I just want to point out, Mr. Chairman, that the nature of this 

workforce is very important to understand that these were all people who worked in the most stringent security, most stringent secrecy. You could not have the lowest level jobs in these facilities 

without a Top Secret Q clearance. These were people who were 

really true patriots, who worked under circumstances where they 

for decades could not even tell their doctors what was happening 

to them. 

That has some impact on kind of where the numbers really are, 

if you could delve back into that kind of ancient history. 

Chairman NORWOOD. I do not know if it helps you any or not to 

know a lot of those people are my friends and neighbors. I do understand what you just said. That has been in my backyard all of 

my life. We have always appreciated the work that was being done 

over there. You are exactly right about what you just said. 

Gentlemen, thank you for your testimony and your time. We are 

very grateful. It has been enlightening to the Committee. We will 

look forward to your answers. 

We now stand adjourned. 

[Whereupon, at 1:02 p.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows:]

Claimant Statements submitted by Ranking Member Major Owens are available for 

inspection in the Committee permanent archive files.

Bulletin of the Atomic Scientists, July/August 2001, ‘‘A Debt Long Overdue,’’ ‘‘The 

Burden of Proof,’’ and ‘‘Making It Work’’ available for inspection in the Committee 

permanent archive files.

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