I

106TH CONGRESS

2D SESSION H. R. 5189

To provide for the payment of compensation for certain individuals employed

in connection with Federal nuclear weapons programs who sustained

occupational illness in the line of duty, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 14, 2000

Mr. UDALL of Colorado (for himself, Mr. WHITFIELD, Mr. STRICKLAND, Mr.

GIBBONS, Mr. KANJORSKI, Mr. DUNCAN, Ms. KAPTUR, Mr. WAMP, Mr.

KLINK, Mr. JENKINS, Ms. BERKLEY, Mr. GORDON, Mr. CLEMENT, Mr.

HALL of Ohio, Mr. LUCAS of Kentucky, Mr. PHELPS, and Mr. BROWN

of Ohio) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Education

and the Workforce, and Ways and Means, for a period to be subsequently

determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To provide for the payment of compensation for certain

individuals employed in connection with Federal nuclear

weapons programs who sustained occupational illness in

the line of duty, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Energy Employees Oc5 cupational Illness Compensation Act of 2000’’.
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1 SEC. 2. FINDINGS.

2 The Congress finds as follows:

3 (1) Since World War II Federal nuclear activi4 ties have been explicitly recognized by the United

5 States Government as an ultra-hazardous activity

6 under Federal law. Nuclear weapons production and

7 testing involved unique dangers, including potential

8 catastrophic nuclear accidents that private insurance

9 carriers would not cover, as well as chronic expo10 sures to radioactive and hazardous substances, such

11 as beryllium and silica, that even in small amounts

12 could cause medical harm.

13 (2) Since the inception of the nuclear weapons

14 program and for several decades afterwards, large

15 numbers of nuclear weapons workers at Department

16 of Energy and at vendor sites who supplied the Cold

17 War effort were put at risk without their knowledge

18 and consent for reasons that, documents reveal, were

19 driven by fears of adverse publicity, liability, and

20 employee demands for hazardous duty pay.

21 (3) Numerous previous secret records docu22 mented unmonitored radiation, beryllium, silica,

23 heavy metals, and toxic substances’ exposures and

24 continuing problems at the Department of Energy

25 and vendor sites across the country, where since

26 World War II the Department of Energy and its
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1 predecessors have been self-regulating with respect

2 to nuclear safety and occupational safety and health.

3 No other hazardous Federal activity has been per4 mitted to have such sweeping self-regulatory powers.

5 (4) The Department of Energy policy to litigate

6 occupational illness claims has deterred workers

7 from filing workers compensation claims and im8 posed major financial burdens for workers who

9 sought compensation. Department of Energy con10 tractors have been held harmless and the Depart11 ment of Energy workers were denied workers com12 pensation coverage for occupational disease.

13 (5) Over the past 20 years more than two

14 dozen scientific findings have emerged that indicate

15 that certain Department of Energy workers are ex16 periencing increased risks of dying from cancer and

17 non-malignant diseases at numerous facilities that

18 provided for the Nation’s nuclear deterrent. Several

19 of these studies also establish a correlation between

20 excess diseases and exposure to radiation, beryllium,

21 and silica.

22 (6) While linking exposure to occupational haz23 ards with the development of occupational disease is

24 sometimes difficult, scientific evidence supports the

25 conclusion that occupational exposure to dust par-
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1 ticles or vapor of beryllium, even where there was

2 compliance with the standards in place at the time,

3 can cause beryllium sensitivity and chronic beryllium

4 disease. Furthermore, studies indicate that 98 per5 cent of radiation induced cancers within the Depart6 ment of Energy complex occur at dose levels below

7 existing maximum safe thresholds. Further, that

8 workers at Department of Energy sites were exposed

9 to silica, heavy metals, and toxic substances at levels

10 that will lead or contribute to illness and diseases.

11 (7) Existing information indicates that State

12 workers’ compensation programs are not a uniform

13 means to provide adequate compensation for the

14 types of occupational illnesses and diseases related

15 to the prosecution of the Cold War effort.

16 (8) The civilian men and women who performed

17 duties uniquely related to the Department of Ener18 gy’s nuclear weapons production and testing pro19 grams over the last 50 years should have efficient,

20 uniform, and adequate compensation for beryllium21 related health conditions, radiation-related health

22 conditions, and silica-related health conditions in

23 order to assure fairness and equity.
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1 SEC. 3. CONSTRUCTION WITH OTHER LAWS.

2 References in this Act to a provision of another stat3 ute shall be considered as references to such provision, as

4 amended and as may be amended from time to time.

5 SEC. 4. DEFINITIONS.

6 (a) IN GENERAL.—In this Act:

7 (1) ATOMIC WEAPON.—The term ‘‘atomic weap8 on’’ has the meaning given that term in section 11d.

9 of the Atomic Energy Act of 1954 (42 U.S.C.

10 2014(d)).

11 (2) ATOMIC WEAPONS EMPLOYEE.—The term

12 ‘‘atomic weapons employee’’ means an individual em13 ployed by an atomic weapons employer during a time

14 when the employer was processing or producing, for

15 the use by the United States, material that emitted

16 radiation and was used in the production of an

17 atomic weapon, excluding uranium mining and mill18 ing.

19 (3) ATOMIC WEAPONS EMPLOYER.—The term

20 ‘‘atomic weapons employer’’ means an entity that—

21 (A) processed or produced, for the use by

22 the United States, material that emitted radi23 ation and was used in the production of an

24 atomic weapon, excluding uranium mining and

25 milling; and
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1 (B) is designated as an atomic weapons

2 employer for purposes of this Act by the Sec3 retary of Energy.

4 (4) ATOMIC WEAPONS EMPLOYER FACILITY.—

5 The term ‘‘atomic weapons employer facility’’ means

6 a facility, owned by an atomic weapons employer,

7 that is or was used to process or produce, for use

8 by the United States, material that emitted radi9 ation and was used in the production of an atomic

10 weapon, excluding uranium mining or milling.

11 (5) BERYLLIUM VENDOR.—The term ‘‘beryl12 lium vendor’’ means the following:

13 (A) Atomics International.

14 (B) Brush Wellman, Incorporated, and its

15 predecessor, Brush Beryllium Company.

16 (C) General Atomics.

17 (D) General Electric Company.

18 (E) NGK Metals Corporation and its pred19 ecessors, Kawecki-Berylco, Cabot Corporation,

20 BerylCo, and Beryllium Corporation of Amer21 ica.

22 (F) Nuclear Materials and Equipment Cor23 poration.

24 (G) StarMet Corporation, and its prede25 cessor, Nuclear Metals, Incorporated.
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1 (H) Wyman Gordan, Incorporated.

2 (I) Any other vendor, processor, or pro3 ducer of beryllium or related products des4 ignated as a beryllium vendor for purposes of

5 this Act under section 5(a).

6 (6) CHRONIC SILICOSIS.—The term ‘‘chronic

7 silicosis’’ means silicosis if—

8 (A) at least 10 years elapse between initial

9 exposure to silica and the emergence of the sili10 cosis; and

11 (B) the silicosis is established by one of the

12 following:

13 (i) A chest x-ray presenting any com14 bination of rounded opacities of type

15 p/q/r, with or without irregular opacities,

16 present in at least both upper lung zones

17 and of profusion 1/0 or greater, as found

18 in accordance with the International Labor

19 Organization classification system.

20 (ii) A physician’s provisional or work21 ing diagnosis of silicosis, combined with—

22 (I) a chest radiograph interpreted

23 as consistent with silicosis; or

24 (II) pathologic findings con25 sistent with silicosis.
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1 (iii) A history of occupational expo2 sure to airborne silica dust and a chest

3 radiograph or other imaging technique in4 terpreted as consistent with silicosis or

5 pathologic findings consistent with silicosis.

6 (7) COMPENSATION.—The term ‘‘compensa7 tion’’ means the money allowance payable under this

8 Act and any other benefits paid for from the Fund

9 including the alternative compensation payable pur10 suant to section 8.

11 (8) COVERED BERYLLIUM EMPLOYEE.—The

12 term ‘‘covered beryllium employee’’ means the fol13 lowing:

14 (A) A current or former employee (as that

15 term is defined in section 8101(1) of title 5,

16 United States Code) who may have been ex17 posed to beryllium at a Department of Energy

18 facility or at a facility owned, operated, or occu19 pied by a beryllium vendor.

20 (B) A current or former employee of any

21 entity that contracted with the Department of

22 Energy to provide management and operation,

23 management and integration, or environmental

24 remediation of a Department of Energy facility

25 or an employee of any contractor or subcon-
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1 tractor that provided services, including con2 struction and maintenance, at such a facility.

3 (C) A current or former employee of a be4 ryllium vendor, or a contractor or subcontractor

5 of a beryllium vendor, during a period when the

6 vendor was engaged in activities related to the

7 production or processing of beryllium for sale

8 to, or use by, the Department of Energy.

9 (9) COVERED BERYLLIUM ILLNESS.—The term

10 ‘‘covered beryllium illness’’ means any condition as

11 follows:

12 (A) Beryllium sensitivity as established

13 by—

14 (i) an abnormal beryllium lymphocyte

15 proliferation test performed on either blood

16 or lung lavage cells; or

17 (ii) other means specified under sec18 tion 5(b).

19 (B) Chronic beryllium disease as estab20 lished by the following:

21 (i) For diagnoses on or after January

22 1, 1993—

23 (I) beryllium sensitivity, as estab24 lished in accordance with subpara25 graph (A); and
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1 (II) lung pathology consistent

2 with chronic beryllium disease,

3 including—

4 (aa) a lung biopsy showing

5 granulomas or a lymphocytic

6 process consistent with chronic

7 beryllium disease;

8 (bb) a computerized axial to9 mography scan showing changes

10 consistent with chronic beryllium

11 disease; or

12 (cc) pulmonary function or

13 exercise testing showing pul14 monary deficits consistent with

15 chronic beryllium disease.

16 (ii) For diagnoses before January 1,

17 1993, the presence of four of the criteria

18 set forth in subclauses (I) through (VI),

19 including the criteria set forth in subclause

20 (I) and any three of the criteria set forth

21 in subclauses (II) through (VI):

22 (I) Occupational or environ23 mental history, or epidemiologic evi24 dence of beryllium exposure.
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1 (II) Characteristic chest radio2 graphic (or computed tomography

3 (CT) abnormalities.

4 (III) Restrictive or obstructive

5 lung physiology testing or diffusing

6 lung capacity defect.

7 (IV) Lung pathology consistent

8 with chronic beryllium disease.

9 (V) Clinical course consistent

10 with a chronic respiratory disorder.

11 (VI) Immunologic tests showing

12 beryllium sensitivity (skin patch test

13 or beryllium blood test preferred).

14 (iii) Other means specified under sec15 tion 5(b).

16 (C) Any injury, illness, impairment, or dis17 ability sustained as a consequence of a covered

18 beryllium illness referred to in subparagraph

19 (A) or (B).

20 (10) COVERED EMPLOYEE.—The term ‘‘covered

21 employee’’ means a covered beryllium employee, a

22 covered employee with cancer, or a covered employee

23 with chronic silicosis.
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1 (11) COVERED EMPLOYEE WITH CANCER.—The

2 term ‘‘covered employee with cancer’’ means the fol3 lowing:

4 (A) An individual who meets the criteria in

5 section 6(c)(1).

6 (B) A member of the Special Exposure Co7 hort.

8 (12) COVERED EMPLOYEE WITH CHRONIC SILI9 COSIS.—The term ‘‘covered employee with chronic

10 silicosis’’ means a—

11 (A) Department of Energy employee; or

12 (B) Department of Energy contractor em13 ployee;

14 with chronic silicosis who was exposed to silica in

15 the performance of duty as determined in section

16 3511(b).

17 (13) DEPARTMENT OF ENERGY.—The term

18 ‘‘Department of Energy’’ includes the predecessor

19 agencies of the Department of Energy, including the

20 Manhattan Engineering District.

21 (14) DEPARTMENT OF ENERGY CONTRACTOR

22 EMPLOYEE.—The term ‘‘Department of Energy con23 tractor employee’’ means the following:

24 (A) An individual who is or was in resi25 dence at a Department of Energy facility as a
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1 researcher for a period of at least 24 cumu2 lative months.

3 (B) An individual who is or was employed,

4 at a Department of Energy facility by—

5 (i) an entity that contracted with the

6 Department of Energy to provide manage7 ment and operating, management and inte8 gration, or environmental remediation at

9 the facility; or

10 (ii) a contractor or subcontractor that

11 provided services, including construction

12 and maintenance, at the facility.

13 (15) DEPARTMENT OF ENERGY FACILITY.—The

14 term ‘‘Department of Energy facility’’ means any

15 building, structure, or premise, including the

16 grounds upon which such building, structure, or

17 premise is located—

18 (A) in which operations are, or have been,

19 conducted by, or on behalf of, the Department

20 of Energy (except for buildings, structures,

21 premises, grounds, or operations covered by Ex22 ecutive Order 12344, pertaining to the Naval

23 Nuclear Propulsion Program); and

24 (B) with regard to which the Department

25 of Energy has or had—
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1 (i) a proprietary interest; or

2 (ii) entered into a contract with an

3 entity to provide management and oper4 ation, management and integration, envi5 ronmental remediation services, construc6 tion, or maintenance services.

7 (16) FUND.—The term ‘‘Fund’’ means the En8 ergy Employees’ Occupational Illness Compensation

9 Fund under section 24.

10 (17) MONTHLY PAY.—The term ‘‘monthly pay’’

11 means the monthly pay at the time of injury, or the

12 monthly pay at the time disability begins, or the

13 monthly pay at the time the compensable disability

14 recurs, if the recurrence begins more than 6 months

15 after the employee resumes regular full-time employ16 ment, whichever is greater, except when otherwise

17 determined under section 8113 of title 5, United

18 States Code.

19 (18) RADIATION.—The term ‘‘radiation’’ means

20 ionizing radiation in the form of—

21 (A) alpha particles;

22 (B) beta particles;

23 (C) neutrons;

24 (D) gamma rays; or
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1 (E) accelerated ions or subatomic particles

2 from accelerator machines.

3 (19) SECRETARY OF HEALTH AND HUMAN

4 SERVICES.—The term ‘‘Secretary of Health and

5 Human Services’’ means the Secretary of Health

6 and Human Services with the assistance of the Di7 rector of the National Institute for Occupational

8 Safety and Health.

9 (20) SPECIAL EXPOSURE COHORT.—The term

10 ‘‘Special Exposure Cohort’’ means the following

11 groups of Department of Energy employees, Depart12 ment of Energy contractor employees, and atomic

13 weapons employees:

14 (A) Individuals who—

15 (i) were employed for a cumulative pe16 riod of at least one year during the period

17 prior to February 1, 1992—

18 (I) at the gaseous diffusion

19 plants located in—

20 (aa) Paducah, Kentucky;

21 (bb) Portsmouth, Ohio; or

22 (cc) Oak Ridge, Tennessee;

23 and

24 (II) by—
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1 (aa) the Department of En2 ergy;

3 (bb) a Department of En4 ergy contractor or subcontractor;

5 or

6 (cc) an atomic weapons em7 ployer; and

8 (ii) during employment covered by

9 clause (i)—

10 (I) were monitored through the

11 use of dosimetry badges for exposure

12 at the plant of the external parts of

13 the employee’s body to radiation; or

14 (II) worked in a job that had ex15 posures comparable to a job that is or

16 was monitored through the use of do17 simetry badges.

18 (B) Individuals who were employed by the

19 Department of Energy or a Department of En20 ergy contractor or subcontractor on Amchitka

21 Island, Alaska, prior to January 1, 1974, and

22 who were exposed to ionizing radiation in the

23 performance of duty related to the Long Shot,

24 Milrow, or Cannikin underground nuclear tests.
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1 (C) Individuals designated as part of the

2 Special Exposure Cohort by the Secretary of

3 Health and Human Services, in accordance

4 with section 8.

5 (21) SPECIFIED CANCER.—The term ‘‘specified

6 cancer’’ means the following:

7 (A) Leukemia (other than chronic

8 lymphocytic leukemia).

9 (B) Multiple myeloma.

10 (C) Non-Hodgkins lymphoma.

11 (D) Cancer of the—

12 (i) bladder;

13 (ii) bone;

14 (iii) brain;

15 (iv) breast (male or female);

16 (v) cervix;

17 (vi) digestive system (including esoph18 agus, stomach, small intestine, bile ducts,

19 colon, rectum, or other digestive organs);

20 (vii) gallbladder;

21 (viii) kidney;

22 (ix) larynx, pharynx, or other res23 piratory organs;

24 (x) liver;

25 (xi) lung;
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1 (xii) male genitalia;

2 (xiii) nasal organs;

3 (xiv) nervous system;

4 (xv) ovary;

5 (xvi) pancreas;

6 (xvii) prostate;

7 (xviii) salivary gland (parotid or non8 parotid);

9 (xix) thyroid;

10 (xx) ureter;

11 (xxi) urinary tract or other urinary

12 organs; or

13 (xxii) uterus.

14 (22) SURVIVOR.—The term ‘‘survivor’’ means

15 any individual or individuals eligible to receive com16 pensation pursuant to section 8133 of title 5, United

17 States Code.

18 (23) TIME OF INJURY.—The term ‘‘time of in19 jury’’ means—

20 (A) in regard to a claim arising out of ex21 posure to beryllium, the last date on which a

22 covered employee was exposed to beryllium in

23 the performance of duty in accordance with sec24 tion 6(a);
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1 (B) in regard to a claim arising out of

2 chronic silicosis, the last date on which a cov3 ered employee was exposed to silica in the per4 formance of duty in accordance with section

5 6(b); and

6 (C) in regard to a claim arising out of ex7 posure to radiation, the last date on which a

8 covered employee was exposed to radiation in

9 the performance of duty in accordance with sec10 tion 6(c)(1) or, in the case of a member of the

11 Special Exposure Cohort, the last date on which

12 the member of the Special Exposure Cohort was

13 employed at the Department of Energy facility

14 at which the member was exposed to radiation.

15 (b) TERMS USED IN ADMINISTRATION.—

16 (1) IN GENERAL.—The following terms have

17 the meaning given those terms in section 8101 of

18 title 5, United States Code—

19 (A) ‘‘physician’’;

20 (B) ‘‘medical, surgical, and hospital serv21 ices and supplies’’;

22 (C) ‘‘injury’’;

23 (D) ‘‘widow’’;

24 (E) ‘‘parent’’;

25 (F) ‘‘brother’’;
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1 (G) ‘‘sister’’;

2 (H) ‘‘child’’;

3 (I) ‘‘grandchild’’;

4 (J) ‘‘widower’’;

5 (K) ‘‘student’’;

6 (L) ‘‘price index’’;

7 (M) ‘‘organ’’; and

8 (N) ‘‘United States medical officers and

9 hospitals’’.

10 (2) EMPLOYEE.—In applying any provision of

11 chapter 81 of title 5, United States Code (except

12 section 8101), under this Act, the term ‘‘employee’’

13 in such provision shall mean a covered employee.

14 (3) EMPLOYEES’ COMPENSATION FUND.—In

15 applying any provision of chapter 81 of title 5,

16 United States Code, under this Act, the term ‘‘Em17 ployees’ Compensation Fund’’ in such provision shall

18 mean the Fund.

19 SEC. 5. EXPANSION OF LIST OF BERYLLIUM VENDORS AND

20 MEANS OF ESTABLISHING COVERED BERYL21 LIUM ILLNESSES.

22 (a) BERYLLIUM VENDORS.—The Secretary of En23 ergy may from time to time, and in consultation with the

24 Secretary of Labor, designate as a beryllium vendor for

25 purposes of section 4(a)(5) any vendor, processor, or pro-
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1 ducer of beryllium or related products not previously listed

2 under or designated for purposes of that section if the Sec3 retary of Energy finds that such vendor, processor, or pro4 ducer has been engaged in activities related to the produc5 tion or processing of beryllium for sale to, or use by, the

6 Department of Energy in a manner similar to the entities

7 listed in that section.

8 (b) MEANS OF ESTABLISHING COVERED BERYLLIUM

9 ILLNESSES.—The Secretary of Health and Human Serv10 ices may from time to time, and in consultation with the

11 Secretary of Energy, specify means of establishing the ex12 istence of a covered beryllium illness referred to in sub13 paragraph (A) or (B) of section 4(a)(9) not previously list14 ed under or specified for purposes of such subparagraph.

15 PART A—BERYLLIUM, SILICOSIS, AND RADIATION

16 COMPENSATION

17 SEC. 6. EXPOSURE TO HAZARDS IN THE PERFORMANCE OF

18 DUTY.

19 (a) BERYLLIUM.—In the absence of substantial evi20 dence to the contrary, a covered beryllium employee shall

21 be determined to have been exposed to beryllium in the

22 performance of duty for the purposes of this Act if, and

23 only if, the covered beryllium employee was—

24 (1) employed at a Department of Energy facil25 ity; or
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1 (2) present at a Department of Energy facility,

2 or a facility owned and operated by a beryllium ven3 dor, because of employment by the United States, a

4 beryllium vendor, or a contractor or subcontractor

5 of the Department of Energy;

6 during a period when beryllium dust, particles, or vapor

7 may have been present at such facility.

8 (b) CHRONIC SILICOSIS.—In the absence of substan9 tial evidence to the contrary, a covered employee with

10 chronic silicosis shall be determined to have been exposed

11 to silica in the performance of duty for the purposes of

12 this Act if, and only if, the covered employee with chronic

13 silicosis was present during the mining of tunnels at a De14 partment of Energy facility for tests or experiments re15 lated to an atomic weapon.

16 (c) CANCER.—

17 (1) IN GENERAL.—A Department of Energy

18 employee, Department of Energy contractor em19 ployee, or an atomic weapons employee shall be de20 termined to have sustained a cancer in the perform21 ance of duty if, and only if, such employee—

22 (A) contracted cancer after beginning em23 ployment at a Department of Energy facility

24 for a Department of Energy contractor or an
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1 atomic weapons employer facility for an atomic

2 weapons employer; and

3 (B) falls within guidelines that—

4 (i) are established by the Secretary of

5 Health and Human Services by regulation,

6 after consultation with the Secretary of

7 Energy and after technical review by the

8 Advisory Board under section 3512, for de9 termining whether the cancer the employee

10 contracted was at least as likely as not re11 lated to employment at the facility;

12 (ii) are based on the radiation dose

13 received by the employee (or a group of

14 employees performing similar work) at the

15 facility and the upper 99 percent con16 fidence interval of the probability of causa17 tion in the radioepidemiological tables pub18 lished under section 7(b) of the Orphan

19 Drug Act (42 U.S.C. 241 note), as such

20 tables may be updated under section

21 7(b)(3) of such Act from time to time;

22 (iii) incorporate the methods estab23 lished under subsection (d); and

24 (iv) take into consideration the type of

25 cancer; past health-related activities, such
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1 as smoking; information on the risk of de2 veloping a radiation-related cancer from

3 workplace exposure; and other relevant fac4 tors.

5 (2) SPECIAL EXPOSURE COHORT.—A member

6 of the Special Exposure Cohort shall be determined

7 to have sustained a cancer in the performance of

8 duty if, and only if, such individual contracted a

9 specified cancer after beginning employment at a

10 Department of Energy facility for a Department of

11 Energy contractor or an atomic weapons employer

12 facility for an atomic weapons employer.

13 (d) RADIATION DOSE.—

14 (1) IN GENERAL.—The Secretary of Health and

15 Human Services, after consultation with the Sec16 retary of Energy, shall—

17 (A) establish by regulation methods for ar18 riving at reasonable estimates of the radiation

19 doses Department of Energy employees or De20 partment of Energy contractor employees re21 ceived at a Department of Energy facility and

22 atomic weapons employees received at a facility

23 operated by an atomic weapons employer if

24 such employees were not monitored for expo25 sure to radiation at the facility, or were mon-
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1 itored inadequately, or if the employees’ expo2 sure records are missing or incomplete; and

3 (B) provide to an employee who meets the

4 requirements of subsection (c)(1)(B) an esti5 mate of the radiation dose the employee re6 ceived based on dosimetry reading, a method es7 tablished under subparagraph (A), or a com8 bination of both.

9 (2) SCIENTIFIC REVIEW.—The Secretary of

10 Health and Human Services shall establish an inde11 pendent review process utilizing the Advisory Board

12 under section 3512 to assess the methods estab13 lished under paragraph (1)(A) and the application of

14 those methods and to verify a reasonable sample of

15 individual dose reconstructions provided under para16 graph (1)(B).

17 (3) ACCESS TO DOSE RECONSTRUCTIONS.—The

18 Secretary of Health and Human Services and the

19 Secretary of Energy each shall, consistent with the

20 protection of private medical records, make available

21 to researchers and the general public information on

22 the assumptions, methodology, and data used in

23 dose reconstructions undertaken under this part.
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1 SEC. 7. ADVISORY BOARD ON RADIATION AND WORKER

2 HEALTH.

3 (a) ESTABLISHMENT.—

4 (1) IN GENERAL.—Not later than 120 days

5 after the date of enactment of this Act, the Sec6 retary of Health and Human Services, in consulta7 tion with the Secretary of Energy, shall establish

8 and appoint an Advisory Board on Radiation and

9 Worker Health.

10 (2) BALANCE OF VIEWS.—In making appoint11 ments to the Board, the Secretary of Health and

12 Human Services shall also consult with labor unions

13 and other organizations with expertise on worker

14 health issues to ensure that the membership of the

15 Board reflects a balance of scientific, medical, and

16 worker perspectives.

17 (3) CHAIR.—The Secretary of Health and

18 Human Services shall designate a Chair for the

19 Board from among its members.

20 (b) DUTIES.—The Board shall advise the Secretary

21 of Health and Human Services, Secretary of Energy, and

22 Secretary of Labor on—

23 (1) the development of guidelines to be used by

24 the Secretary of Health and Human Services under

25 section 6;
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1 (2) the scientific validity and quality of dose es2 timation and reconstruction efforts being performed

3 to implement compensation programs under this

4 part; and

5 (3) other matters related to radiation and work6 er health in Department of Energy facilities as the

7 Secretary of Labor, the Secretary of Energy, or the

8 Secretary of Health and Human Services may re9 quest.

10 (c) STAFF.—

11 (1) IN GENERAL.—The Secretary of Health and

12 Human Services shall appoint a staff to facilitate

13 the work of the Board, headed by a Director ap14 pointed under subchapter VIII of chapter 33 of title

15 5, United States Code.

16 (2) DETAILS.—The Secretary of Health and

17 Human Services may accept for staff of the Board

18 personnel on detail from other Federal agencies to

19 serve on the staff on a nonreimbursable basis.

20 (d) EXPENSES.—Members of the Board, other than

21 full-time employees of the Federal Government, while at22 tending meetings of the Board or while otherwise serving

23 at the request of the Secretary of Health and Human

24 Services while serving away from their homes or regular

25 places of business, may be allowed travel and meal ex-
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1 penses, including per diem in lieu of subsistence, as au2 thorized by section 5703 of title 5, United States Code,

3 for individuals in the Government serving without pay.

4 (e) APPLICABILITY OF FACA.—The Advisory Board

5 shall be subject to the Federal Advisory Committee Act

6 (5 U.S.C. App.).

7 SEC. 8. DESIGNATION OF ADDITIONAL MEMBERS OF THE

8 SPECIAL EXPOSURE COHORT.

9 (a) ADVICE ON MEMBERSHIP IN COHORT.—

10 (1) IN GENERAL.—Upon request of the Sec11 retary of Health and Human Services, the Advisory

12 Board on Radiation and Worker Health under sec13 tion 7, based on exposure assessments by radiation

14 health professionals, information provided by the

15 Department of Energy, and other information

16 deemed appropriate by the Board, shall advise the

17 Secretary of Health and Human Services whether

18 there is a class of employees at a Department of En19 ergy facility who likely were exposed to radiation at

20 the facility but for whom it is not feasible to esti21 mate with sufficient accuracy the radiation dose they

22 received.

23 (2) PROCEDURES.—The Secretary of Health

24 and Human Services shall establish procedures for
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1 considering petitions by classes of employees to re2 quest the advice of the Board.

3 (b) TREATMENT AS MEMBERS OF COHORT.—A class

4 of employees at a Department of Energy facility shall be

5 considered as members of the Special Exposure Cohort for

6 purposes of section 4(a)(20) if the Secretary of Health and

7 Human Services, upon recommendation of the Advisory

8 Board on Radiation and Worker Health and in consulta9 tion with the Secretary of Energy, determines that—

10 (1) it is not feasible to estimate with sufficient

11 accuracy the radiation dose which the class received;

12 and

13 (2) there is a reasonable likelihood that the ra14 diation dose may have endangered the health of

15 members of the class.

16 (c) ACCESS TO INFORMATION.—The Secretary of En17 ergy shall, in accordance with law, provide the Secretary

18 of Health and Human Services and the members and staff

19 of the Advisory Board under section 7 access to relevant

20 information on worker exposures, including access to Re21 stricted Data (as that term is defined in section 11y. of

22 the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).
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1 SEC. 9. AUTHORITY TO PROVIDE COMPENSATION AND

2 OTHER ASSISTANCE.

3 (a) COMPENSATION.—Subject to the provisions of

4 this Act, the Secretary of Labor—

5 (1) shall pay compensation in accordance with

6 sections 8105 through 8110, 8111(a), 8112, 8113,

7 8115, 8117, 8133, 8134, 8146a(a), and 8146a(b) of

8 title 5, United States Code, for the disability or

9 death—

10 (A) from a covered beryllium illness of a

11 covered beryllium employee who was exposed to

12 beryllium while in the performance of duty as

13 determined in accordance with section 6(a) of

14 this Act;

15 (B) from chronic silicosis of a covered em16 ployee with chronic silicosis who was exposed to

17 silica in the performance of duty as determined

18 in accordance with section 6(b) of this Act; or

19 (C) from cancer of a covered employee

20 with cancer determined to have sustained that

21 cancer in the performance of duty in accordance

22 with section 6(c) of this Act or from any injury

23 suffered as a consequence of that cancer;

24 (2) shall furnish the services and other benefits

25 specified in section 8103 of title 5, United States

26 Code, to—
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1 (A) a covered beryllium employee with a

2 covered beryllium illness who was exposed to be3 ryllium in the performance of duty as deter4 mined in accordance with section 6(a) of this

5 Act;

6 (B) a covered employee with chronic sili7 cosis who was exposed to silica in the perform8 ance of duty as determined in accordance with

9 section 6(b) of this Act; or

10 (C) a covered employee with cancer deter11 mined to have sustained that cancer in the per12 formance of duty in accordance with section

13 6(c) of this Act or to have suffered any injury

14 as a consequence of that cancer; and

15 (3) may direct a permanently disabled indi16 vidual whose disability is compensable under this

17 part to undergo vocational rehabilitation and shall

18 provide for furnishing such vocational rehabilitation

19 services pursuant to the provisions of sections 8104,

20 8111(b), and 8113(b) of title 5, United States Code.

21 (b) LIMITATIONS ON COMPENSATION.—

22 (1) EMPLOYEE MISCONDUCT.—No compensa23 tion or benefits may be paid or provided under this

24 Act for a cancer (including a specified cancer),

25 chronic silicosis, covered beryllium illness, or death
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1 if the cancer (including a specified cancer), chronic

2 silicosis, covered beryllium illness, or death occurred

3 under one of the circumstances set forth in para4 graph (1), (2), or (3) of section 8102(a) of title 5,

5 United States Code.

6 (2) RETROACTIVE BENEFITS.—No compensa7 tion may be paid under this section for any period

8 before the date of enactment of this Act, except in

9 the case of compensation under section 10.

10 (3) SOURCE.—All compensation under this part

11 shall be paid from the Fund.

12 (c) COMPUTATION OF PAY.—

13 (1) IN GENERAL.—Except as otherwise pro14 vided by this Act or by regulation, computation of

15 pay under this Act shall be determined in accord16 ance with section 8114 of title 5, United States

17 Code.

18 (2) SUBSTITUTE RULE FOR SECTION

19 8114(d)(3).—If either of the methods of determining

20 the average annual earnings specified in section

21 8114(d) (1) and (2) of title 5, United States Code,

22 cannot be applied reasonably and fairly, the average

23 annual earnings are a sum that reasonably rep24 resents the annual earning capacity of the covered

25 employee in the employment in which the employee
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1 was working at the time of injury having regard to

2 the previous earnings of the employee in similar em3 ployment, and of other employees of the same em4 ployer in the same or most similar class working in

5 the same or most similar employment in the same or

6 neighboring location, other previous employment of

7 the employee, or other relevant factors. However, the

8 average annual earnings may not be less than 150

9 times the average daily wage the covered employee

10 earned in the employment during the days employed

11 within 1 year immediately preceding the time of in12 jury.

13 (d) ASSISTANCE FOR CLAIMANTS.—The Secretary of

14 Labor shall, upon the receipt of a request for assistance

15 from a claimant for compensation under this section, pro16 vide assistance to the claimant in connection with the

17 claim, including—

18 (1) assistance in securing medical testing and

19 diagnostic services necessary to establish the exist20 ence of a covered beryllium illness or cancer; and

21 (2) such other assistance as may be required to

22 develop facts pertinent to the claim.

23 (e) ASSISTANCE FOR POTENTIAL CLAIMANTS.—The

24 Secretary of Energy, in consultation with the Secretary

25 of Labor, shall take appropriate actions to inform and as-
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1 sist covered employees who are potential claimants under

2 this part, and other potential claimants under this part,

3 of the availability of compensation under this part, includ4 ing actions to—

5 (1) ensure the ready availability, in paper and

6 electronic format, of forms necessary for making

7 claims;

8 (2) provide such covered employees and other

9 potential claimants with information and other sup10 port necessary for making claims, including—

11 (A) medical protocols for medical testing

12 and diagnosis to establish the existence of a

13 covered beryllium illness, silicosis, or cancer;

14 and

15 (B) lists of vendors approved for providing

16 laboratory services related to such medical test17 ing and diagnosis;

18 (3) provide such additional assistance to such

19 covered employees and other potential claimants as

20 may be required for the development of facts perti21 nent to a claim.

22 (f) INFORMATION FROM BERYLLIUM VENDORS AND

23 OTHER CONTRACTORS.—As part of the assistance pro24 gram provided under subsections (d) and (e), and as per25 mitted by law, the Secretary of Energy shall, upon the
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1 request of the Secretary of Labor, require a beryllium ven2 dor or other Department of Energy contractor or subcon3 tractor to provide information relevant to a claim or poten4 tial claim under this Act to the Secretary of Labor.

5 SEC. 10. ALTERNATIVE COMPENSATION.

6 (a) IN GENERAL.—Subject to the provisions of this

7 section, a covered employee eligible for benefits under sec8 tion 9(a), or the survivor of such covered employee if the

9 employee is deceased, may elect to receive compensation

10 in the amount of $200,000 in lieu of any other compensa11 tion under section 9(a)(1).

12 (b) DEATH BEFORE ELECTION.—

13 (1) IN GENERAL.—Subject to the provisions of

14 this section, if a covered employee otherwise eligible

15 to make an election provided by this section dies be16 fore the date of enactment of this Act, or before

17 making the election, whether or not the death is a

18 result of a cancer (including a specified cancer),

19 chronic silicosis, or covered beryllium illness, a sur20 vivor of the covered employee on behalf of the sur21 vivor and any other survivors of the covered em22 ployee may make the election and receive the com23 pensation provided for under this section.

24 (2) PRECEDENCE OF SURVIVORS.—The right to

25 make an election and to receive compensation under
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1 this section shall be afforded to survivors in the

2 order of precedence set forth in section 8109 of title

3 5, United States Code.

4 (c) TIME LIMIT FOR ELECTION.—An election under

5 this section may be made at any time after the submittal

6 under this part of the claim on which such compensation

7 is based, but not later than 30 days after the latter of

8 the date of—

9 (1) a determination by the Secretary of Labor

10 that an employee is eligible for an award under this

11 section; or

12 (2) a determination by the Secretary of Labor

13 awarding an employee or an employee’s survivors

14 compensation for total or partial disability or com15 pensation in case of death.

16 (d) IRREVOCABILITY OF ELECTION.—

17 (1) IN GENERAL.—An election under this sec18 tion when made is irrevocable.

19 (2) BINDING EFFECT.—An election made by a

20 covered employee or survivor under this section is

21 binding on all survivors of the covered employee.

22 SEC. 11. SUBMITTAL OF CLAIMS.

23 (a) CLAIM REQUIRED.—A claim for compensation

24 under this part shall be submitted to the Secretary of
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1 Labor in the manner specified in section 8121 of title 5,

2 United States Code.

3 (b) GENERAL TIME LIMITATIONS.—A claim for com4 pensation under this part shall be filed under this section

5 not later than the later of—

6 (1) seven years after the date of enactment of

7 this Act;

8 (2) seven years after the date the claimant first

9 becomes aware that a cancer (including a specified

10 cancer), chronic silicosis, covered beryllium illness,

11 or death from any of the foregoing of a covered em12 ployee may be connected to the exposure of the cov13 ered employee to beryllium, radiation, or silica in the

14 performance of duty.

15 (c) NEW PERIOD FOR ADDITIONAL ILLNESSES AND

16 CONDITIONS.—A new period of limitation under sub17 section (b)(2) shall commence with each new diagnosis of

18 a cancer (including a specified cancer), chronic silicosis,

19 or covered beryllium illness that is different from a pre20 viously diagnosed cancer (including a specified cancer),

21 chronic silicosis, or covered beryllium illness.

22 (d) DEATH CLAIM.—The timely filing of a disability

23 claim for a cancer (including a specified cancer), chronic

24 silicosis, or covered beryllium illness shall satisfy the time

25 requirements of this section for death benefits for the
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1 same cancer (including a specified cancer), chronic sili2 cosis, or covered beryllium illness.

3 SEC. 12. ADJUDICATION AND ADMINISTRATION.

4 (a) IN GENERAL.—

5 (1) REQUIREMENT.—The Secretary of Labor

6 shall determine and make a finding of fact and

7 make an award for or against payment of compensa8 tion under this part after—

9 (A) considering the claim presented by the

10 claimant, the results of any medical test or di11 agnosis undertaken to establish the existence of

12 a cancer (including a specified cancer), chronic

13 silicosis, or covered beryllium illness, and any

14 report furnished by the Secretary of Energy

15 with respect to the claim; and

16 (B) completing such investigation as the

17 Secretary of Labor considers necessary.

18 (2) SCOPE OF ALLOWANCE AND DENIAL.—The

19 Secretary may allow or deny a claim, in whole or in

20 part.

21 (b) AVAILABLE AUTHORITIES.—

22 (1) IN GENERAL.—Except as provided in para23 graph (2), in carrying out activities under subsection

24 (c), the Secretary of Labor may utilize the authori25 ties available to the Secretary under sections 8123,
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1 8124(b), 8125, 8126, 8128(a), and 8129 of title 5,

2 United States Code.

3 (2) DISAGREEMENT.—If there is a disagree4 ment under section 8123(a) of title 5, United States

5 Code, between the physician making the examination

6 for the United States and the physician of the em7 ployee, the Secretary of Labor shall appoint a third

8 physician from a roster of physicians with relevant

9 expertise maintained by the Secretary of Health and

10 Human Services.

11 (c) RIGHTS OF CLAIMANT.—

12 (1) IN GENERAL.—Except as provided by para13 graph (2), the provisions of section 8127 of title 5,

14 United States Code, shall apply.

15 (2) SUITS TO COMPEL INFORMATION.—A claim16 ant may commence an action in the appropriate dis17 trict court of the United States against a beryllium

18 vendor, or other contractor or subcontractor of the

19 Department of Energy, to compel the production of

20 information or documents requested by the Sec21 retary of Labor under this part if such information

22 or documents are not provided within 180 days of

23 the date of the request. Upon successful resolution

24 of any action brought under this paragraph, the

25 court shall award the claimant reasonable attorney
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1 fees and costs to be paid by the defendant in such

2 action.

3 (d) DEADLINES.—Beginning on the date that is two

4 years after the date of enactment of this Act, the Sec5 retary of Labor shall allow or deny a claim under this sec6 tion not later than the later of—

7 (1) 180 days after the date of submittal of the

8 claim to the Secretary under section 11; or

9 (2) 120 days after the date of receipt of infor10 mation or documents produced under subsection

11 (c)(2).

12 (e) RESOLUTION OF REASONABLE DOUBT.—Except

13 as provided in subsection (b)(2), in determining whether

14 a claimant meets the requirements of this part, the Sec15 retary of Labor shall find in favor of the claimant in cir16 cumstances where the evidence supporting the claim of the

17 claimant and the evidence controverting the claim of the

18 claimant is in equipoise.

19 (f) SERVICE OF DECISION.—The Secretary of Labor

20 shall have served upon a claimant the Secretary’s decision

21 denying the claim under this section, including the finding

22 of fact under subsection (a)(1).

23 (g) HEARINGS AND FURTHER REVIEW.—

24 (1) REGULATIONS.—The Secretary of Labor

25 may prescribe regulations necessary for the adminis-
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1 tration and enforcement of this Act including regula2 tions for the conduct of hearings under this section.

3 (2) APPEALS PANELS.—

4 (A) IN GENERAL.—Regulations issued by

5 the Secretary of Labor under this Act shall pro6 vide for one or more Energy Employees’ Com7 pensation Appeals Panels of three individuals

8 with authority to hear and, subject to applicable

9 law and the regulations of the Secretary, make

10 final decisions on appeals taken from deter11 minations and awards with respect to claims of

12 employees filed under this part.

13 (B) INTERAGENCY AGREEMENT.—Under

14 an agreement between the Secretary of Labor

15 and another Federal agency (except the Depart16 ment of Energy), a panel appointed by the

17 other Federal agency may provide these appel18 late decisionmaking services.

19 (3) APPEAL.—An individual seeking review of a

20 denial of an award under this section shall submit

21 an appeal in accordance with the regulations under

22 this subsection.

23 (h) RECONSIDERATION BASED ON NEW CRITERIA OR

24 EVIDENCE.—
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1 (1) NEW CRITERIA OR METHODS FOR ESTAB2 LISHING WORK-RELATED ILLNESS.—A claimant may

3 obtain reconsideration of a decision awarding or de4 nying coverage under this part within one year after

5 the effective date of regulations setting forth—

6 (A) new criteria for establishing a covered

7 beryllium illness pursuant to section 5(b); or

8 (B) additional or revised methods for de9 termining whether a cancer was at least as like10 ly as not related to employment pursuant to

11 section 6(c)(1)(B)(i);

12 by submitting evidence that is relevant and pertinent

13 to the new regulations.

14 (2) NEW EVIDENCE.—A covered employee or

15 covered employee’s survivor may obtain reconsider16 ation of a decision denying an application for com17 pensation or benefits under this Act if the employee

18 or employee’s survivor has additional medical or

19 other information relevant to the claim that was not

20 reasonably available at the time of the decision and

21 that likely would lead to the reversal of the decision.

22 PART B—EXPOSURE TO OTHER TOXIC

23 SUBSTANCES

24 SEC. 13. DEFINITIONS.

25 In this part:
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1 (1) DIRECTOR.—The term ‘‘Director’’ means

2 the Director of the Office of Workers’ Compensation

3 Advocate under section 217 of the Department of

4 Energy Organization Act, as added by section 22 of

5 this Act.

6 (2) PANEL.—The term ‘‘panel’’ means a physi7 cians panel established under section 14(d).

8 (3) SECRETARY.—The term ‘‘Secretary’’ means

9 the Secretary of Energy.

10 SEC. 14. AGREEMENTS WITH STATES.

11 (a) AGREEMENTS.—The Secretary, through the Di12 rector, may enter into agreements with the Governor of

13 a State to provide assistance to a Department of Energy

14 contractor employee in filing a claim under the appro15 priate State workers’ compensation system.

16 (b) PROCEDURE.—Pursuant to agreements under

17 subsection (a), the Director may—

18 (1) establish procedures under which an indi19 vidual may submit an application for review and as20 sistance under this section, and

21 (2) review an application submitted under this

22 section and determine whether the applicant sub23 mitted reasonable evidence that—
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1 (A) the application was filed by or on be2 half of a Department of Energy contractor em3 ployee or employee’s estate, and

4 (B) the illness or death of the Department

5 of Energy contractor employee may have been

6 related to employment at a Department of En7 ergy facility.

8 (c) SUBMITTAL OF APPLICATIONS TO PANELS.—If

9 provided in an agreement under subsection (a), and if the

10 Director determines that the applicant submitted reason11 able evidence under subsection (b)(2), the Director shall

12 submit the application to a physicians panel established

13 under subsection (d). The Director shall assist the em14 ployee in obtaining additional evidence within the control

15 of the Department of Energy and relevant to the panel’s

16 deliberations.

17 (d) PANEL.—

18 (1) NUMBER OF PANELS.—The Director shall

19 inform the Secretary of Health and Human Services

20 of the number of physicians panels the Director has

21 determined to be appropriate to administer this sec22 tion, the number of physicians needed for each

23 panel, and the area of jurisdiction of each panel.

24 The Director may determine to have only one panel.

25 (2) APPOINTMENT.—
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1 (A) IN GENERAL.—The Secretary of

2 Health and Human Services shall appoint panel

3 members with experience and competency in di4 agnosing occupational illnesses under section

5 3109 of title 5, United States Code.

6 (B) COMPENSATION.—Each member of a

7 panel shall be paid at the rate of pay payable

8 for level III of the Executive Schedule for each

9 day (including travel time) the member is en10 gaged in the work of a panel.

11 (3) DUTIES.—A panel shall review an applica12 tion submitted to it by the Director and determine,

13 under guidelines established by the Director, by rule,

14 whether the illness or death that is the subject of

15 the application arose out of and in the course of em16 ployment by the Department of Energy and expo17 sure to a toxic substance at a Department of Energy

18 facility.

19 (4) ADDITIONAL INFORMATION.—At the re20 quest of a panel, the Director and a contractor who

21 employed a Department of Energy contractor em22 ployee shall provide additional information relevant

23 to the panel’s deliberations. A panel may consult

24 specialists in relevant fields as it determines nec25 essary.
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1 (5) DETERMINATIONS.—Once a panel has made

2 a determination under paragraph (3), it shall report

3 to the Director its determination and the basis for

4 the determination.

5 (6) INAPPLICABILITY OF FACA.—A panel estab6 lished under this section shall not be subject to the

7 Federal Advisory Committee Act (5 U.S.C. App.).

8 (e) ASSISTANCE.—If provided in an agreement under

9 subsection (a)—

10 (1) the Director shall review a panel’s deter11 mination made under subsection (d), information the

12 panel considered in reaching its determination, any

13 relevant new information not reasonably available at

14 the time of the panel’s deliberations, and the basis

15 for the panel’s determination;

16 (2) as a result of the review under paragraph

17 (1), the Director shall accept the panel’s determina18 tion in the absence of compelling evidence to the

19 contrary;

20 (3) if the panel has made a positive determina21 tion under subsection (d) and the Director accepts

22 the determination under paragraph (2), or the panel

23 has made a negative determination under subsection

24 (d) and the Director finds compelling evidence to the

25 contrary—
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1 (A) the Director shall—

2 (i) assist the applicant to file a claim

3 under the appropriate State workers’ com4 pensation system based on the health con5 dition that was the subject of the deter6 mination;

7 (ii) recommend to the Secretary of

8 Energy that the Department of Energy not

9 contest a claim filed under a State work10 ers’ compensation system based on the

11 health condition that was the subject of

12 the determination and not contest an

13 award made under a State workers’ com14 pensation system regarding that claim; and

15 (iii) recommend to the Secretary of

16 Energy that the Secretary direct, as per17 mitted by law, the contractor who em18 ployed the Department of Energy con19 tractor employee who is the subject of the

20 claim not to contest the claim or an award

21 regarding the claim; and

22 (B) any costs of contesting a claim or an

23 award regarding the claim incurred by the con24 tractor who employed the Department of En25 ergy contractor employee who is the subject of
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1 the claim shall not be an allowable cost under

2 a Department of Energy contract.

3 (f) INFORMATION.—At the request of the Director,

4 a contractor who employed a Department of Energy con5 tractor employee shall make available to the Director or

6 the employee, information relevant to deliberations under

7 this section.

8 (g) GAO REPORT.—Not later than February 1,

9 2002, the Comptroller General shall submit a report to

10 the Congress evaluating the implementation by the De11 partment of Energy of the provisions of this part and of

12 the effectiveness of the program under this part in pro13 viding compensation to Department of Energy contractor

14 employees for occupational illness.

15 PART C—GENERAL PROVISIONS

16 SEC. 15. TREATMENT OF COMPENSATION AND BENEFITS.

17 (a) IN GENERAL.—Any compensation or benefits al18 lowed, paid, or provided under this Act—

19 (1) shall not be included as income for purposes

20 of the Internal Revenue Code and shall not be sub21 ject to Federal income tax, and shall not be included

22 as income or resources for purposes of determining

23 eligibility to receive benefits described in section

24 3803(c)(2)(C) of title 31, United States Code, or the

25 amount of those benefits; and
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1 (2) shall not be subject to offset under chapter

2 37 of title 31, United States Code.

3 (b) INSURANCE.—(1) Compensation or benefits paid

4 or provided under this Act shall not be considered as any

5 form of compensation or reimbursement for a loss for pur6 poses of imposing liability on an individual receiving the

7 compensation or benefits to repay any insurance carrier

8 for insurance payments made.

9 (2) The payment or provision of compensation or ben10 efits under this Act shall not be treated as affecting any

11 claim against an insurance carrier with respect to insur12 ance.

13 (c) PROHIBITION ON ASSIGNMENT OR ATTACHMENT

14 OF CLAIMS.—The provisions of section 8130 of title 5,

15 United States Code, shall apply to claims under this Act.

16 (d) RETENTION OF CIVIL SERVICE RIGHTS.—If a

17 Federal employee found to be disabled under this Act re18 sumes employment with the Federal Government, the em19 ployee shall be entitled to the rights set forth in section

20 8151 of title 5, United States Code.

21 SEC. 16. FORFEITURE OF BENEFITS BY CONVICTED FEL22 ONS.

23 (a) FORFEIT COMPENSATION.—Any individual con24 victed of a violation of section 1920 of title 18, United

25 States Code, or any other Federal or State criminal stat-
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1 ute relating to fraud in the application for or receipt of

2 any benefit under this Act or under any other Federal or

3 State workers’ compensation law, shall forfeit (as of the

4 date of such conviction) any entitlement to any benefit

5 under this Act such individual would otherwise be awarded

6 for any injury, illness or death covered by this Act for

7 which the time of injury was on or before the date of the

8 conviction. This forfeiture shall be in addition to any ac9 tion the Secretary of Labor takes under sections 8106 or

10 8129 of title 5, United States Code.

11 (b) DEPENDENTS.—(1) Notwithstanding any other

12 provision of law, except as provided under paragraph (2),

13 compensation under this Act shall not be paid or provided

14 to an individual during any period during which such indi15 vidual is confined in a jail, prison, or other penal institu16 tion or correctional facility, pursuant to that individual’s

17 conviction of an offense that constituted a felony under

18 applicable law. After this period of incarceration ends, the

19 individual shall not receive compensation forfeited during

20 the period of incarceration.

21 (2) If an individual has one or more dependents as

22 defined under section 8110(a) of title 5, United States

23 Code, the Secretary of Labor may, during the period of

24 incarceration, pay to such dependents a percentage of the

25 compensation that would have been payable to the indi-
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1 vidual computed according to the percentages set forth in

2 section 8133(a) (1) through (5) of title 5, United States

3 Code.

4 (c) INFORMATION.—Notwithstanding section 552a of

5 title 5, United States Code, or any other Federal or State

6 law, an agency of the United States, a State, or a political

7 subdivision of a State shall make available to the Sec8 retary of Labor, upon written request from the Secretary

9 of Labor and if the Secretary of Labor requires the infor10 mation to carry out this section, the names and Social Se11 curity account numbers of individuals confined, for convic12 tion of a felony, in a jail, prison, or other penal institution

13 or correctional facility under the jurisdiction of that agen14 cy.

15 SEC. 17. LIMITATION ON RIGHT TO RECEIVE BENEFITS.

16 (a) CLAIMANT.—A claimant who receives compensa17 tion for any claim under this Act, except for compensation

18 provided under the authority of section 8103(b) of title

19 5, United States Code, shall not receive compensation for

20 any other claim under this Act.

21 (b) SURVIVOR.—If a survivor receives compensation

22 for any claim under this Act derived from a covered em23 ployee, except for compensation provided under the au24 thority of section 8103(b) of title 5, United States Code,

25 such survivor shall not receive compensation for any other
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1 claim under this Act derived from the same covered em2 ployee. A survivor of a claimant who receives compensa3 tion for any claim under this Act, except for compensation

4 provided under the authority of section 8103(b) of title

5 5, United States Code, shall not receive compensation for

6 any other claim under this Act derived from the same cov7 ered employee.

8 (c) WIDOW OR WIDOWER.—A widow or widower who

9 is eligible for benefits under this Act derived from more

10 than one husband or wife shall elect one benefit to receive.

11 SEC. 18. COORDINATION OF BENEFITS—STATE WORKERS’

12 COMPENSATION.

13 (a) IN GENERAL.—An individual who is eligible to

14 receive compensation under this Act because of a cancer

15 (including a specified cancer), chronic silicosis, covered be16 ryllium illness, or death and who is also entitled to receive

17 benefits because of the same cancer (including a specified

18 cancer), chronic silicosis, covered beryllium illness, or

19 death from a State workers’ compensation system shall

20 elect which such benefits to receive, unless—

21 (1) at the time of injury, workers’ compensation

22 coverage for the employee was secured by a policy or

23 contract of insurance; and

24 (2) the Secretary of Labor waives the require25 ment to make such an election.
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1 (b) ELECTION.—The individual shall make the elec2 tion within the time allowed by the Secretary of Labor.

3 The election when made is irrevocable and binding on all

4 survivors of that individual.

5 (c) COORDINATION.—Except as provided in para6 graph (d), an individual who has been awarded compensa7 tion under this Act and who also has received benefits

8 from a State workers’ compensation system because of the

9 same cancer (including a specified cancer), chronic sili10 cosis, covered beryllium illness, or death, shall receive com11 pensation as specified under this Act reduced by the

12 amount of any workers’ compensation benefits that the in13 dividual has received under the State workers’ compensa14 tion system as a result of the cancer (including a specified

15 cancer), chronic silicosis, covered beryllium illness, or

16 death attributable to the period subsequent to the effective

17 date of this Act, after deducting the reasonable costs, as

18 determined by the Secretary of Labor, of obtaining bene19 fits under the State workers’ compensation system.

20 (d) WAIVER.—An individual described in paragraph

21 (a) who has also received, under paragraph (a)(2), a waiv22 er of the requirement to elect between compensation under

23 this Act and benefits under a State workers’ compensation

24 system shall receive compensation as specified in this Act

25 for the cancer (including a specified cancer), chronic sili-
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1 cosis, covered beryllium illness, or death, reduced by 80

2 percent of the net amount of any workers’ compensation

3 benefits that the claimant has received under a State

4 workers’ compensation system attributable to the period

5 subsequent to the effective date of this Act, after deduct6 ing the reasonable costs, as determined by the Secretary

7 of Labor, of obtaining benefits under the State workers’

8 compensation system.

9 SEC. 19. COORDINATION OF BENEFITS—FEDERAL WORK10 ERS’ COMPENSATION.

11 (a) IN GENERAL.—An individual who is eligible to

12 receive compensation under this Act because of a cancer

13 (including a specified cancer), chronic silicosis, covered be14 ryllium illness, or death and who is also entitled to receive

15 benefits because of the same cancer (including a specified

16 cancer), chronic silicosis, covered beryllium illness, or

17 death from another Federal workers’ compensation system

18 shall elect which such benefits to receive.

19 (b) ELECTION.—The individual shall make the elec20 tion within the time allowed by the Secretary of Labor.

21 The election when made is irrevocable and binding on all

22 survivors of that individual.

23 (c) COORDINATION.—An individual who has been

24 awarded compensation under this Act and who also has

25 received benefits from another Federal workers’ com-
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1 pensation system because of the same cancer (including

2 a specified cancer), chronic silicosis, covered beryllium ill3 ness, or death, shall receive compensation as specified

4 under this Act reduced by the amount of any workers’

5 compensation benefits that the individual has received

6 under the other Federal workers’ compensation system as

7 a result of the cancer (including a specified cancer), chron8 ic silicosis, covered beryllium illness, or death.

9 SEC. 20. RECEIPT OF BENEFITS—OTHER STATUTES.

10 An individual may not receive compensation under

11 this Act for cancer and also receive compensation under

12 the Radiation Exposure Compensation Act (42 U.S.C.

13 2210 note) or the Radiation-Exposed Veterans Compensa14 tion Act (38 U.S.C. 112(c)).

15 SEC. 21. DUAL COMPENSATION—FEDERAL EMPLOYEES.

16 (a) LIMITATION.—While a Federal employee is re17 ceiving compensation under this Act, or such employee has

18 been paid a lump sum in commutation of installment pay19 ments until the expiration of the period during which the

20 installment payments would have continued, such em21 ployee may not receive salary, pay, or remuneration of any

22 type from the United States, except—

23 (1) in return for service actually performed;

24 (2) pension for service in the Army, Navy or

25 Air Force;
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1 (3) other benefits administrated by the Depart2 ment of Veterans Affairs unless such benefits are

3 payable for the same covered illness or the same

4 death; and

5 (4) retired pay, retirement pay, retainer pay, or

6 equivalent pay for service in the Armed Forces or

7 other uniformed service.

8 However, eligibility for or receipt of benefits under sub9 chapter III of chapter 83 of title 5, United States Code,

10 or another retirement system for employees of the Govern11 ment, does not impair the right of the employee to com12 pensation for scheduled disabilities specified by section

13 8107 of title 5, United States Code.

14 SEC. 22. DUAL COMPENSATION—OTHER EMPLOYEES.

15 An individual entitled to receive compensation under

16 this Act because of a cancer (including a specified cancer),

17 chronic silicosis, covered beryllium illness, or death cov18 ered by this Act of a covered employee, who also is entitled

19 to receive from the United States under a provision of a

20 statute other than this Act payments or benefits for that

21 injury, illness or death (except proceeds of an insurance

22 policy), because of service by such employee (or in the case

23 of death, by the deceased) as an employee or in the Armed

24 Forces, shall elect which benefits to receive. The individual

25 shall make the election within the time allowed by the Sec-
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1 retary of Labor. The election when made is irrevocable,

2 except as otherwise provided by statute.

3 SEC. 23. EXCLUSIVITY OF REMEDY AGAINST THE UNITED

4 STATES, CONTRACTORS, AND SUBCONTRAC5 TORS.

6 (a) IN GENERAL.—The liability of the United States

7 or an instrumentality of the United States under this Act

8 with respect to a cancer (including a specified cancer),

9 chronic silicosis, covered beryllium illness, or death of a

10 covered employee is exclusive and instead of all other

11 liability—

12 (1) of—

13 (A) the United States;

14 (B) any instrumentality of the United

15 States;

16 (C) a contractor that contracted with the

17 Department of Energy to provide management

18 and operation, management and integration, or

19 environmental remediation of a Department of

20 Energy facility (in its capacity as a contractor);

21 (D) a subcontractor that provided services,

22 including construction, at a Department of En23 ergy facility (in its capacity as a subcontractor);

24 and
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1 (E) an employee, agent, or assign of an en2 tity specified in subparagraphs (A) through

3 (D);

4 (2) to—

5 (A) the covered employee;

6 (B) the covered employee’s legal represent7 ative, spouse, dependents, survivors and next of

8 kin; and

9 (C) any other person, including any third

10 party as to whom the covered employee has a

11 cause of action relating to the cancer (including

12 a specified cancer), chronic silicosis, covered be13 ryllium illness, or death, otherwise entitled to

14 recover damages from the United States, the

15 instrumentality, the contractor, the subcon16 tractor, or the employee, agent, or assign of one

17 of them;

18 because of the cancer (including a specified cancer), chron19 ic silicosis, covered beryllium illness, or death in any pro20 ceeding or action including a direct judicial proceeding,

21 a civil action, a proceeding in admiralty, or a proceeding

22 under a tort liability statute or the common law.

23 (b) APPLICABILITY.—This section applies to all cases

24 filed on after July 31, 2000.
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1 (c) WORKERS’ COMPENSATION.—This section does

2 not apply to an administrative or judicial proceeding under

3 a State or Federal workers’ compensation statute subject

4 to sections 18 through 22.

5 SEC. 24. ELECTION OF REMEDY AGAINST BERYLLIUM VEN6 DORS AND ATOMIC WEAPONS EMPLOYERS.

7 (a) BERYLLIUM VENDORS.—If an individual elects to

8 accept payment under this Act with respect to a covered

9 beryllium illness or death of a covered employee, that ac10 ceptance of payment shall be in full settlement of all tort

11 claims related to such covered beryllium illness or death—

12 (1) against—

13 (A) a beryllium vendor or a contractor or

14 subcontractor of a beryllium vendor; and

15 (B) an employee, agent, or assign of a be16 ryllium vendor or of a contractor or subcon17 tractor of a beryllium vendor;

18 (2) by—

19 (A) that individual;

20 (B) that individual’s legal representative,

21 spouse, dependents, survivors, and next of kin;

22 and

23 (C) any other person, including any third

24 party as to whom a covered employee has a

25 cause of action relating to the covered beryllium
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1 illness or death, otherwise entitled to recover

2 damages from the beryllium vendor, the con3 tractor or subcontractor of the beryllium ven4 dor, or the employee, agent, or assign of the be5 ryllium vendor, of the contractor or subcon6 tractor of the beryllium vendor;

7 that arise out of the covered beryllium illness or death in

8 any proceeding or action including a direct judicial pro9 ceeding, a civil action, a proceeding in admiralty, or pro10 ceeding under a tort liability statute or the common law.

11 (b) ATOMIC WEAPONS EMPLOYER.—If an individual

12 elects to accept payment under this Act with respect to

13 a cancer (including a specified cancer) or death of a cov14 ered employee, that acceptance of payment shall be in full

15 settlement of all tort claims—

16 (1) against—

17 (A) an atomic weapons employer; and

18 (B) an employee, agent, or assign of an

19 atomic weapons employer;

20 (2) by—

21 (A) that individual;

22 (B) that individual’s legal representative,

23 spouse, dependents, survivors, and next of kin;

24 and
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1 (C) any other person, including any third

2 party as to whom a covered employee has a

3 cause of action relating to the cancer (including

4 a specified cancer) or death, otherwise entitled

5 to recover damages from the atomic weapons

6 employer, or the employee, agent, or assign of

7 the atomic weapons employer;

8 that arise out of the cancer (including a specified cancer)

9 or death in any proceeding or action including a direct

10 judicial proceeding, a civil action, a proceeding in admi11 ralty, or proceeding under a tort liability statute or the

12 common law.

13 (c) APPLICABILITY.—

14 (1) IN GENERAL.—With respect to a case filed

15 after the date of enactment of this Act, alleging li16 ability of—

17 (A) a beryllium vendor or a contractor or

18 subcontractor of a beryllium vendor for a cov19 ered beryllium illness or death of a covered be20 ryllium employee; or

21 (B) an atomic weapons employer for a can22 cer (including a specified cancer) or death of a

23 covered employee;
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1 the plaintiff shall not be eligible for benefits under

2 this Act unless the plaintiff files such case within

3 the applicable time limits in paragraph (2).

4 (2) TIME LIMITS.—

5 (A) SUITS AGAINST BERYLLIUM VEN6 DORS.—Except as provided in subparagraph

7 (B), a case described in paragraph (1)(A) shall

8 be filed not later than the later of—

9 (i) 180 days after the date of enact10 ment of this Act; or

11 (ii) 180 days after the date the plain12 tiff first becomes aware that a covered be13 ryllium illness or death of a covered beryl14 lium employee may be connected to the ex15 posure of the covered employee to beryl16 lium in the performance of duty.

17 (B) NEW DIAGNOSES.—A new period of

18 limitation under subparagraph (A)(ii) shall

19 commence with each new diagnosis of a covered

20 beryllium illness that is different from a pre21 viously diagnosed covered beryllium illness.

22 (C) SUITS AGAINST ATOMIC WEAPONS EM23 PLOYERS.—Except as provided in subparagraph

24 (D), a case described in paragraph (1)(B) shall

25 be filed not later than the later of—
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1 (i) 180 days after the date of enact2 ment of this Act; or

3 (ii) 180 days after the date the plain4 tiff first becomes aware that a cancer (in5 cluding a specified cancer) or death of a

6 covered employee may be connected to the

7 exposure of the covered employee to radi8 ation in the performance of duty.

9 (D) NEW DIAGNOSES.—A new period of

10 limitation under subparagraph (C)(ii) shall

11 commence with each new diagnosis of a cancer

12 (including a specified cancer) that is different

13 from a previously diagnosed cancer.

14 (c) WORKERS’ COMPENSATION.—This section does

15 not apply to an administrative or judicial proceeding under

16 a State or Federal workers’ compensation statute subject

17 to sections 3534 through 3538.

18 SEC. 25. SUBROGATION OF THE UNITED STATES.

19 (a) IN GENERAL.—If a cancer (including a specified

20 cancer), covered beryllium illness, chronic silicosis, dis21 ability, or death for which compensation is payable under

22 this Act is caused under circumstances creating a legal

23 liability in a person other than the United States to pay

24 damages, sections 8131 and 8132 of title 5, United States
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1 Code, shall apply, except to the extent specified in this

2 Act.

3 (b) APPEARANCE OF EMPLOYEE.—For the purposes

4 of this Act, the provision in section 8131 of title 5, United

5 States Code, that provides that an employee required to

6 appear as a party or witness in the prosecution of an ac7 tion described in that section is in an active duty status

8 while so engaged shall only apply to a Federal employee.

9 SEC. 26. ENERGY EMPLOYEES’ OCCUPATIONAL ILLNESS

10 COMPENSATION FUND.

11 (a) ESTABLISHMENT.—There is hereby established

12 on the books of the Treasury a fund to be known as the

13 Energy Employees’ Occupational Illness Compensation

14 Fund. The Secretary of the Treasury shall transfer to the

15 Fund from the general fund of the Treasury the amounts

16 necessary to carry out the purposes of this Act.

17 (b) USE OF THE FUND.—Amounts in the Fund shall

18 be used for the payment of compensation under this Act

19 and other benefits and expenses authorized by this Act

20 or any extension or application thereof, and for payment

21 of all expenses of the administration of this Act.

22 (c) COST DETERMINATIONS.—(1) Within 45 days of

23 the end of every quarter of every fiscal year, the Secretary

24 of Labor shall determine the total costs of compensation,

25 benefits, administrative expenses, and other payments
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1 made from the Fund during the quarter just ended; the

2 end-of-quarter balance in the Fund; and the amount an3 ticipated to be needed during the immediately succeeding

4 two quarters for the payment of compensation, benefits,

5 and administrative expenses under this Act.

6 (2) In making the determination under paragraph

7 (1), the Secretary of Labor shall include, without amend8 ment, information provided by the Secretary of Energy

9 and the Secretary of Health and Human Services on the

10 total costs and amounts anticipated to be needed for their

11 activities under this Act.

12 (3) Each cost determination made in the last quarter

13 of the fiscal year under paragraph (1) shall show, in addi14 tion, the total costs of compensation, benefits, administra15 tive expenses, and other payments from the Fund during

16 the preceding 12-month expense period and an estimate

17 of the expenditures from the Fund for the payment of

18 compensation, benefits, administrative expenses, and other

19 payments for each of the immediately succeeding two fis20 cal years.

21 (d) ASSURING AVAILABLE BALANCE IN THE

22 FUND.—Upon application of the Secretary of Labor, the

23 Secretary of the Treasury shall advance such sums from

24 the Treasury as are projected by the Secretary of Labor

25 to be necessary, for the period of time equaling the date
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1 of a projected deficiency in the Fund through 90 days fol2 lowing the end of the fiscal year, for the payment of com3 pensation and other benefits and expenses authorized by

4 this Act or any extension or application thereof, and for

5 payment of all expenses of administering this Act.

6 SEC. 27. EFFECTIVE DATE.

7 This Act is effective upon enactment, and applies to

8 all claims, civil actions, and proceedings pending on, or

9 filed on or after, the date of enactment of this Act.

10 SEC. 28. TECHNICAL AND CONFORMING AMENDMENTS.

11 (a) Section 1920 of title 18 is amended by inserting

12 in the title ‘‘or Energy employee’s’’ after ‘‘Federal employ13 ee’s’’ and by inserting ‘‘or the Energy Employees’ Occupa14 tional Illness Compensation Act of 2000’’ after ‘‘title 5’’.

15 (b) Section 1921 of title 18 is amended by inserting

16 in the title ‘‘or Energy employees’’ after ‘‘Federal employ17 ees’’ and by inserting ‘‘or the Energy Employees’ Occupa18 tional Illness Compensation Act of 2000’’ after ‘‘title 5’’.

19 (c) Section 210(a)(1) of the Energy Reorganization

20 Act of 1974 (42 U.S.C. 5851(a)(1)) is amended by—

21 (1) in subparagraph (E), striking ‘‘or;’’ and in22 serting ‘‘;’’,

23 (2) in subparagraph (F), striking the period

24 and inserting ‘‘; or’’, and
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1 (3) after subparagraph (F) inserting a new sub2 paragraph as follows:

3 ‘‘(G) filed an application for benefits or as4 sistance under the Energy Employees Occupa5 tional Illness Compensation Act of 2000’’.

6 (d) Title II of the Department of Energy Organiza7 tion Act (Public Law 95–91) is amended by adding at the

8 end of the title the following:

9 ‘‘OFFICE OF WORKERS’ COMPENSATION ADVOCATE

10 ‘‘SEC. 217. (a) There shall be within the Department

11 an Office of Workers’ Compensation Advocate. The Office

12 shall be headed by a Director who shall be appointed by

13 the Secretary. The Director shall be compensated at the

14 rate provided for in level IV of the Executive Schedule

15 under section 5315 of title 5, United States Code.

16 ‘‘(b) The Director shall be responsible for providing

17 information, research reports, and studies to support the

18 implementation of the Energy Employees’ Occupational

19 Illness Compensation Act of 2000. Not later than 90 days

20 after the date of enactment of this section, the Director

21 shall enter into memoranda of agreement to provide for

22 coordination of the efforts of the office with the Depart23 ment of Labor and the Department of Health and Human

24 Services.

25 ‘‘(c) The Director shall coordinate efforts within the

26 Department to collect and make available to present and
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1 former employees of the Department and its predecessor

2 agencies, present and former employees of contractors and

3 subcontractors to the Department and its predecessor

4 agencies, and other individuals who are or were present

5 at facilities owned or operated by the Department or its

6 predecessor agencies information on occupational condi7 tions and exposures to health hazards. Such information

8 shall include information on substances and their chemical

9 forms to which employees may have been exposed, records

10 and studies relevant to determining occupational hazards,

11 raw dosimetry and industrial hygiene data, results from

12 medical screening programs, accident and other relevant

13 occurrence reports, and reports, assessments, or reviews

14 by contractors, consultants, or external entities relevant

15 to assessing risk of occupational hazards or illness.

16 ‘‘(d) If the Director determines that—

17 ‘‘(1) an entity within the Department or an en18 tity that is the recipient of a Departmental grant,

19 contract, or cooperative agreement possesses infor20 mation necessary to carry out the provisions of the

21 Energy Employees’ Occupational Illness Compensa22 tion Act of 2000; and

23 ‘‘(2) the production and sharing of that infor24 mation under the provisions of the Energy Employ-
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1 ees’ Occupational Illness Compensation Act of 2000

2 is being unreasonably delayed;

3 the Director shall have the authority, notwithstanding sec4 tion 3213 of the National Nuclear Security Administration

5 Act, to direct such entity to produce expeditiously such

6 information in accordance with the provisions of this sec7 tion and the Energy Employees’ Occupational Illness

8 Compensation Act of 2000.

9 ‘‘(e) The Director shall take actions to inform and

10 assist potential claimants under the Energy Employees’

11 Occupational Illness Compensation Act of 2000, pursuant

12 to section 10(e) of such Act.’’.

Æ