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ENERGY EMPLOYEES OCCUPATIONAL ILLNESS

COMPENSATION PROGRAM: ARE WE FULFILLING THE PROMISE WE MADE TO THESE COLD

WAR VETERANS WHEN WE CREATED THIS

PROGRAM? (PART I)

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

BORDER SECURITY, AND CLAIMS

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MARCH 1, 2006

Serial No. 109–110

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS

JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

JEFF FLAKE, Arizona 

BOB INGLIS, South Carolina 

DARRELL ISSA, California 

SHEILA JACKSON LEE, Texas 

HOWARD L. BERMAN, California 

ZOE LOFGREN, California 

LINDA T. SA ́ NCHEZ, California 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel 

ART ARTHUR, Counsel 

ALLISON BEACH, Counsel 

CINDY BLACKSTON, Professional Staff 

NOLAN RAPPAPORT, Minority Counsel 

(III)

C O N T E N T S 

MARCH 1, 2006

OPENING STATEMENT 

Page 

The Honorable John N. Hostettler, a Representative in Congress from the 

State of Indiana, and Chairman, Subcommittee on Immigration, Border 

Security, and Claims ............................................................................................ 1

The Honorable Sheila Jackson Lee, a Representative in Congress from the 

State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims ..................................................................................... 5

The Honorable Howard Berman, a Representative in Congress from the State 

of California, and Member, Subcommittee on Immigration, Border Security, 

and Claims ............................................................................................................ 8

The Honorable Elton Gallegly, a Representative in Congress from the State 

of California, and Member, Subcommittee on Immigration, Border Security, 

and Claims ............................................................................................................ 8

WITNESSES 

Mr. Shelby Hallmark, Director, Office of Workers Compensation Programs, 

U.S. Department of Labor 

Oral Testimony ..................................................................................................... 10

Prepared Statement ............................................................................................. 11

John Howard, M.D., M.P.H., Director, National Institute for Occupational 

Safety and Health, Centers for Disease Control and Prevention, U.S. Department of Health and Human Services 

Oral Testimony ..................................................................................................... 19

Prepared Statement ............................................................................................. 20

James Melius, M.D., DRPH, Administrator, New York State Laborers Health 

and Safety Trust Fund, Member of the Advisory Board on Radiation and 

Worker Health 

Oral Testimony ..................................................................................................... 25

Prepared Statement ............................................................................................. 26

Mr. Richard D. Miller, Senior Policy Analyst, Government Accountability 

Project 

Oral Testimony ..................................................................................................... 29

Prepared Statement ............................................................................................. 32

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Ranking Member, Subcommittee 

on Immigration, Border Security, and Claims ................................................... 67

Prepared Statement of John Mauro, Ph.D., CHP, Project Manager, S. Cohen 

& Associates (SC&A, Inc.) ................................................................................... 68

Responses of Shelby Hallmark, Director, Office of Workers Compensation 

Programs, U.S. Department of Labor, to post-hearing questions from the 

Honorable John N. Hostettler ............................................................................. 73

Responses of John Howard, M.D., M.P.H., Director, National Institute for 

Occupational Safety and Health, Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, to post-hearing 

questions from the Honorable John N. Hostettler ............................................ 81

Page

IV

Responses of James Melius, M.D., DRPH, Administrator, New York State 

Laborers Health and Safety Trust Fund, Member of the Advisory Board 

on Radiation and Worker Health, to post-hearing questions from the Honorable John N. Hostettler ....................................................................................... 90

Responses of Richard D. Miller, Senior Policy Analyst, Government Accountability Project, to post-hearing questions from the Honorable John N. 

Hostettler .............................................................................................................. 94

Letter from Sanford Cohen, President, S. Cohen Associates, Inc. ....................... 104

(1)

ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE 

FULFILLING THE PROMISE WE MADE TO 

THESE COLD WAR VETERANS WHEN WE 

CREATED THIS PROGRAM? (PART I) 

WEDNESDAY, MARCH 1, 2006

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 4:10 p.m., in Room 

2141, Rayburn House Office Building, the Honorable John N. 

Hostettler (Chairman of the Subcommittee) presiding. 

Mr. HOSTETTLER. The Subcommittee will come to order. 

Today’s hearing is the first in a series of oversight hearings the 

Subcommittee will be holding on the Energy Employees Occupational Illness Compensation Program Act. The focus of today’s 

hearing is twofold. The immediate issue at hand is an OMB internal document brought to the Subcommittee’s attention concerning 

the granting of special exposure cohort status to groups of sick cold 

war workers. 

The Department of Energy, or DOE, or its contractors often either did not properly monitor workers’ radiation exposures or there 

are no existing records. So in these cases, this nuclear worker compensation program directs the Department of Health and Human 

Services, or HHS, after review and a recommendation by the Advisory Board on Radiation and Worker Health, the Board, to make 

such workers members of the Special Exposure Cohort, or SEC. 

Under the SEC, benefits are paid to workers with on-the-job radiation exposures of at least a year and development of cancer after 

at least 5 years. If designated an SEC member, a $150,000 lump 

sum payment plus medical benefits are provided to that member 

if diagnosed with one of 22 radio-sensitive cancers. The lack of legitimate records of exposure to radiation is, unfortunately, relatively common for these workers, especially in the earlier years of 

the DOE weapons complex. OMB’s list of possible actions to be 

taken to minimize costs in this area of the program needs to be dissected carefully to determine its potential impact on the Government promise made to these veterans of the Cold War in creating 

this program. 

Additionally, strengths, weaknesses, problems and improvements 

in the program will be discussed today. Hopefully we will all be 

2

better educated about this program by the end of the hearing as 

well as know clearly what the priority issues are that need to be 

addressed in subsequent hearings. 

The findings in the law as enacted state in part that, ‘‘since the 

inception of the nuclear weapons program, a large number of nuclear weapons workers at sites at the Department of Energy and 

at sites of vendors who supplied the cold war effort were put at risk 

without their knowledge and consent for reasons that, documents 

reveal, were driven by fears of adverse publicity, liability, and employee demands for hazardous duty pay. To ensure fairness and equity, the civilian men and women who over the past 50 years have 

performed duties uniquely related to the nuclear weapons production and testing programs should have efficient, uniform, and adequate compensation for beryllium-related health conditions and radiation-related health conditions.’’ That, in fact, was and still is 

congressional intent. This intent was not created out of speculation, 

but out of documented proof of the Government’s attempt to hide 

the truth from workers. 

For example, the 1947 Atomic Energy or AEC Director of Oak 

Ridge Operations’ memo to the AEC general manager stated, ‘‘Papers referring to levels of soil and water contamination surrounding Atomic Energy Commission installations, idol speculation 

on future genetic effects of radiation, and papers dealing with potential process hazards to employees are definitely prejudicial to 

the best interests of the Government. Every such release is reflected in an increase of insurance claims, increased difficulty in 

labor relations, and adverse public sentiment.’’

Later that year, Oak Ridge recommended that the AEC Insurance Branch review declassification decisions for liability concerns. 

Their recommendation stated, ‘‘following consultation with the 

Atomic Energy Commission Insurance Branch, the following declassification criteria appears desirable: If specific locations or activities of the Atomic Energy Commission and/or its contractors are 

closely associated with statements and information which would invite or tend to encourage claims against the Atomic Energy Commission or its contractors, such portions of articles to be published 

should be reworded or deleted. The effective establishment of this 

policy necessitates review by the Insurance Branch as well as the 

Medical Division prior to declassification.’’

In 1948, the AEC Declassification Branch found that a study of 

Los Alamos workers could be declassified as, ‘‘open research.’’ The 

Insurance Branch called for very careful study before making the 

report public and wrote, ‘‘We can see the possibility of a shattering 

effect on the morale of the employees if they become aware that 

there were substantial reasons to question the standards of safety 

under which they are working. In the hands of labor unions, the 

results of this study would add substance to demands for extra 

hazardous duty pay. Knowledge of the results of this study might 

increase the number of claims of occupational injury due to radiation and place a powerful weapon in the hands of a plaintiff’s attorney.’’

This secrecy policy was documented again in 1960 by AEC biomedical officials where they recognized that, ‘‘possibly 300 people 

at Paducah should be checked out’’ for neptunium contamination, 

3

but that there was hesitation to, ‘‘proceed to intensive studies because of the union’s use of this as an excuse for hazard pay.’’

The OMB document sent to the Labor Department sets out a 

plan to effect the current decision-making process and independent 

review on the basis of SEC status of approvals on budget concerns 

rather than on the scientific basis mandated by the law. The document commends DOL for informing OMB of a potentially large expansion of benefits due to designation of SECs and states that a 

White House-led interagency working group will be convened to 

come up with options to administratively contain growth in the cost 

of benefits paid out by the program. It then lists five options for 

discussion in that regard. 

The first option is to require the Administration clearance of 

SEC determinations. This option appears to place budget examiners with only a budget focus in the role of making the final decisions on approving SEC status for recommended groups of claimants without regard for actual health determinations on the adequacy or inadequacy of radiation records made for that purpose. 

The second option is to, ‘‘address any imbalance in membership 

of the President’s Advisory Board on radiation and worker health.’’ 

This seems to imply that OMB believes the current presidentiallyappointed Board has been unbalanced. Scientific integrity and 

processing claims has been maintained by this nuclear worker compensation program’s requirement that the Board be balanced in 

medical, scientific, and worker perspectives and independent in 

their review process. As a result, the Board has been well-balanced; 

however, when a Board member died last year whose voting record 

favored the position of DOL and NIOSH officials responsible for the 

program, two Board members not so predisposed in their voting 

were removed. The reason for their removal was stated to be that 

their term limits had expired; however, other members with the 

identical tenure were not removed, rendering this explanation hollow. 

The Judiciary Committee encouraged the White House to maintain balance in the Board’s composition and preserve the institutional knowledge. The Committee urged that these Board members 

be retained to sustain the Board’s independence and decision-making quality. The concerns were dismissed and three new Board 

members were recommended by officials running the program that 

is subject to Board review, and were placed on the Board. It appears that the balanced Board OMB contemplates may be one that 

will determine the scientific evidence available is sufficient to justify denial of the majority of SECs in order to contain growth of 

benefit payment costs. This does not coincide with balancing the 

Board or ensuring independence as contemplated in the law passed 

by Congress. 

Option three calls for an expedited review of SEC recommendations by outside experts. The law states, ‘‘the President shall establish an independent review process using the Advisory Board on 

Radiation and Worker Health,’’ thus creating and tasking the 

Board with providing independent review of science used for claims 

processing. If OMB’s concern is with costs, adding another layer of 

costly review makes no sense. The indication is OMB doesn’t trust 

the Board which the President appointed nor its team of expert 

4

health physicists to provide cost-containing results. The Committee 

has yet to find evidence during the existence of the current review 

procedure that the Board’s advice has been unsound or led to unwarranted approvals. 

Option four questions the credibility of the Board’s audit contractor. This contractor’s conflict of interest restrictions are more 

stringent than the restrictions on NIOSH, its contractors, or the 

Board members. Contrary to OMB’s view, the Committee’s review 

of conflict of interest concerns has found that significant conflicts 

of interest center on individuals employed by Oak Ridge Associated 

Universities, or ORAU, the contractor hired by NIOSH to perform 

dose reconstructions and not the Board’s contractor hired to review 

NIOSH and ORAU’s work. 

The final option is to require that NIOSH demonstrate that its 

site profiles and other dose reconstruction guidances are balanced. 

Again, it is unclear what they mean by balanced. Both site profiles 

and dose reconstructions are to be based on data and facts. Data 

and facts are not a perspective. They are either valid, comprehensive, and able to withstand public scrutiny, or they are not. One 

question that must be answered is the meaning of the term ‘‘balance’’ in this context. Hopefully our witnesses will enlighten the 

Subcommittee in this regard. 

OMB’s plan to address imbalances in the Board and conflicts of 

interest with the audit contractor seems to be an attempt to deny 

claims based on false realities and accusations. These options seem 

to attempt to replace a statutorily-mandated independent review 

process with a behind-closed-door process to cut benefit payments 

to the claimants who had the least knowledge of how hazardous 

their work conditions really were because of the lack of exposure 

information in their cases. If that is the case, their goal to cut costs 

would override the honest validation of a claim due to credible scientific evidence or lack thereof, the core purpose of the program. 

Unlike the majority of claims programs administered by the 

Labor Department, compensation provided by this nuclear worker 

compensation program addresses purposeful harm perpetrated on 

innocent employees without their knowledge. That dynamic of this 

program adds a much higher presumption that claims should be 

paid without hesitation or resistance than does a broken bone from 

a fall at the office. This is not the Federal Employees Compensation Act or the Longshore Compensation Program. 

It is troubling that the document thanks the DOL office that administers its nuclear worker compensation program for notifying 

them of the potential increased costs from SECs. That coupled with 

statements by DOL officials on the public record and in documents 

provided to the Committee expressing annoyance with the depth of 

review conducted on NIOSH scientific findings and the view that 

the Advisory Board needs to be brought under control by NIOSH 

on their decisions don’t reflect well on the underlying attitude of 

some key officials involved with the running of this program. 

DOL was tasked with running a non-adversarial claims process 

here, but at a minimum this document raises questions about 

DOL’s objectivity and neutrality as the claims administrator. It 

does not seem to lie in line, once again, with the spirit of the law. 

This plan to override science to meet OMB’s budget priorities is inVerDate 0ct 09 2002 10:20 Aug 02, 2006 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\030106\26290.000 HJUD1 PsN: 26290
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appropriate and speaks to an institutional mind set at odds with 

congressional intent. It does a disservice to these Cold War veterans. Unless we root out this problem, it will undermine Government credibility with claimants and the public. Unfortunately this 

behavior by Government officials could, due to reactive demands 

for Congress to legislatively mandate more SECs, potentially by 

this Chairman, be more costly to the Government coffers than allowing the independent process originally established by Congress 

to proceed unhindered. 

I hope our witnesses today can speak to each of these proposed 

actions and calm the furor this document has created within the 

claimant community. The purpose of this nuclear worker compensation program is as stated in the statute, to provide for timely, 

uniform, and adequate compensation of covered employees and, 

where applicable, survivors of such employees. That should be the 

Government’s guiding principle, not undermining legitimate claims 

processing to save what in reality is a minuscule fraction of the entire Federal budget. 

At this time, I would like to recognize the gentlewoman from 

Texas, the Ranking Member of the Subcommittee, Ms. Jackson Lee 

for an opening statement. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and you 

are to be commended for it is interesting as we have worked on the 

Subcommittee for a number of years, we have found that the vast 

amount of our work has focused on immigration, border security, 

and certainly as it should. Many are not aware that this is a Committee of first resort for those who are appealing and/or seeking 

claims against the United States of America. In fact, it is a Committee that I think has a very high responsibility, and that is to 

ensure to the American people that in spite of the bigness of the 

Government, the power of the Federal Government, that each individual person is special and important, that they feel if they have 

been injured by this Government, this Government has the obligation and duty and responsibility to be sensitive and responsible to 

addressing that grievance. 

So I would like to repeat the topic of this hearing, the ‘‘Energy 

Employees Occupational Illness Compensation Program Act: Are 

We Fulfilling the Promise We Made to These Veterans of the Cold 

War When We Created the Program?’’

I am very grateful that both the Chairman and myself are at 

least in sync on the idea that we should know more. So I congratulate you for this hearing. 

Today’s hearing will focus on Subtitle B of the Energy Employees 

Occupational Illness Compensation Act. Subtitle B covers three 

types of occupational illness associated with making nuclear weapons cancer where it can be shown that the cancer is at least as 

likely as not related to ionizing radiation exposure while employed 

at a nuclear weapons facility, the chronic beryllium disease or 

chronic silicosis disease as it is known. Energy Department Federal 

contractor and vendor employees who have contracted one of these 

illnesses or their survivors may be eligible for a lump sum of 

$150,000 and prospective medical benefits. The act also provides 

for a $50,000 supplemental payment to uranium miners, millers, or 

6

their survivors who are eligible to receive $100,000 under the Radiation Exposure Compensation Act and seems to be fair enough. 

The radiation-related cancer claims at the Department of Health 

and Human Services through the National Institute for Occupational Safety and Health is required to estimate a worker’s radiation dose if dose records are available. However, during the earlier 

years of the nuclear weapons programs, especially between the 

1940’s and 1970’s, some workers were not monitored and the monitoring that was done sometimes were inadequate, I might add may 

have been lost in these years between this time and the time of 

their claim. Also, some records from this period were further destroyed. 

The act provides a remedy for cases where it is not feasible to 

estimate radiation doses with sufficient accuracy and it is clear 

from job types that the worker’s health may have been endangered 

by radiation exposures. Friends, it seems unlikely to me that anyone would voluntarily suggest that they have been exposed to radiation. Who would want to be subjected to that kind of danger and 

unnecessarily make a claim before the Federal Government? I can 

assure you from those who have had this experience and who have 

been harmed it is not a pretty picture. It is painful. It is a deadly 

disease, and it alters your life drastically. 

Under these provisions, workers or their unions may petition to 

be administratively designated as a special exposure cohort which 

establishes an unrebuttable presumption that certain cancers are 

work related. Members of a special exposure cohort are eligible for 

the 150,000 lump sum benefit if they have one of 22 radio-sensitive 

cancers and in general if they work at a covered facility for at least 

1 year in a job that exposed them to radiation. 

The HHS Secretary subject to review and recommendation from 

the Advisory Board on Radiation Worker Health makes a special 

exposure cohort designation. To date, the Secretary has denied two 

special exposure cohort petitions and approved six involving approximately 1,100 cases. The Administration recently declared its 

intention to reduce the number of special exposure cohorts in a 

memorandum referred to as an Office of Management and Budget 

pass-back. My friends, it saddens me that I can characterize that 

as saving a buck. The pass-back provides for establishing a White 

House-led interagency work group to develop options for administrative procedures that will contain the growth and the cost of benefits provided by the program. My other editorial comment is that 

is the highest level of bureaucracy-ese, meaning language, that confuses and of course seeks to eliminate or deny the program. 

Options to be considered include requiring an administration 

clearance for all special exposure cohort designations, requiring an 

expedited review for outside experts, addressing any imbalance in 

the membership of the President’s Advisory Board on Radiation 

and Worker Health, and imposing constraints on the Advisory 

Board’s audit contractor. 

Let me join the Chairman and ask for the irregularities of this 

particular Advisory Board to be fixed immediately and that the fixing of the Board or the changing of the Board members not be for 

the purpose, as it has been perceived, of eliminating the benefits 

of so many. Might I suggest, as I listed the various new requireVerDate 0ct 09 2002 10:20 Aug 02, 2006 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\030106\26290.000 HJUD1 PsN: 26290
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ments, that all they represent is one bar after another for the innocent victims who offered and sacrificed their lives on behalf of their 

country. The Cold War was real. Ask anyone who lived in that period. Ask the children of the fifties who responded to the sirens 

that suggested they should go under their desks. Many today don’t 

know of the bomb shelters that were built in houses throughout the 

forties and fifties. 

People did it because their Government told them to do it. Now 

we find that the very workers who were willing to put themselves 

on the front lines to say I am a warrior of the Cold War, send me, 

allow me to serve my country, now are getting the back hand of 

America by its Government and being told that you’ll have to jump 

over the hoops in order be compensated. 

Currently a special exposure cohort petition goes through an initial evaluation by NIOSH and its recommendation is then peer reviewed by the Advisory Board before it goes to the Secretary for a 

decision. These reviews are conducted in the open and on the 

record with an opportunity for input from experts and the petitioner. We need to be concerned about this system if it is broken 

or HHS is approving special exposure cohort petitions that should 

be denied. We will hear testimony on that issue today if that is the 

case, and, of course, certainly if there are fractures in the system, 

if it doesn’t work or can be improved, we welcome the opportunity 

to do so, but personally I do not welcome the opportunity for camouflage and smoke and mirrors to deny innocent victims their right 

to their claims. Congress intended for these claims to be able to be 

compensated and they set out a very reasonable approach for those 

who are the victims of lost records or destroyed records or failed 

memory, but have the physical ailments and opportunity for affirmation of their ailments to be able to be compensated. 

Five and a half years have passed since the Energy Employees 

Occupational Illness Compensation Act was enacted while I was 

here in the United States Congress, and the sick workers who were 

supposed to be served by this program, they are now dying. The 

Administration should be doing more to help these workers, not 

trying to make it more difficult for them to establish eligibility for 

compensation. It is too difficult already. This is not a time with the 

returning Iraqi veterans themselves suffering from heinous injuries, this is not a time to deny those who are willing to serve our 

country. This is not a time to deny their families, those families of 

those who are willing to serve their country. This is not a time to 

save a buck on the patriotism of Americans. 

These workers made a commitment to our country when the 

country needed them. Now it is our turn to help them in their time 

of need. I hope this hearing will generate not only the interest, but 

the information and solutions so that we can get back on track so 

that Americans will know when you offer yourself for service and 

say send me, Americans will stand up and applaud and be welcoming you home with the necessary response and compensation 

and nurturing for the injuries you suffered in the line of duty. 

I yield back, Mr. Chairman. 

Mr. HOSTETTLER. I thank the gentlelady. 

The Chair now recognizes the gentleman from California for purposes of an opening statement. 

8

Mr. BERMAN. Thank you very much, Mr. Chairman. I hadn’t intended to give an opening statement, but unfortunately the timing 

of my own schedule conflicts and I’m not able to stay. I will have 

staff remaining to hear the witnesses; but I just want to say I was 

very pleased and I would say stunned by the openings that you and 

the Ranking Member gave and particularly, Mr. Chairman, sort of 

your reference to the historical development of this whole issue, the 

efforts to hide and conceal and the notion that right now you have 

this process that’s called an effort to make it fair or balanced that 

is in reality focused on those workers where these historical events 

meant they were the least likely to know what they were being exposed to because there was no measurement. 

So I think you made just a number—point after point, you were 

so on the case. The notion that this is a balance, it’s a balance between justice and trying to save some bucks, a balance between exposure and trying to save some bucks, a balance between serious 

illnesses and life-threatening and in some cases life-taking illnesses 

and trying to save some bucks. This effort as revealed by the reports of this memo aren’t about finding balance. It’s about tying to 

bias the entire process in defiance of what congressional intent was 

and I think defiance of reasonable compensation. 

One hundred and fifty thousand wasn’t an effort to try and 

measure the full extent of the pain and suffering of these people. 

It was a lump sum payment in lieu of that process to be done expeditiously for people for whom there was no measurements of exposure and they will have no other way to get compensated for their 

clearly employment-related illnesses, and I think both of you have 

called this exactly right. I support what you’re doing, efforts to create new bureaucratic tiers for people to have to jump through in 

a context, by the way, where the process is already very slow. 

Large number of people who have filed claims haven’t gotten them 

adjudicated yet, and as Ms. Jackson Lee pointed out, my guess is 

large numbers of people who are eligible aren’t even aware that 

this program exists. That’s where the efforts should be going, not 

finding ways to stack advisory committees and create new criteria 

to, ‘‘make it look better on a budget score sheet.’’

So I look forward to the reports of this hearing and the other 

hearings and both of your excellent efforts to try and hopefully 

keep this from being implemented. 

Thank you very much. 

Mr. HOSTETTLER. I thank the gentleman. 

The Chair recognizes the other gentleman from California for 

purposes of an opening statement when ready. 

[The Chairman confers with counsel.] 

Mr. HOSTETTLER. At that time, we will be ready to hear the gentleman’s opening statement. At this time, I will introduce the witnesses and——

[The Chairman further confers with counsel.] 

Mr. HOSTETTLER. It seems at this point, he’s ready for that opening statement, and the Chair recognizes the gentleman from California. 

Mr. GALLEGLY. I appreciate the Chairman’s recognition and allowing me to make an opening statement. I apologize for being a 

9

little late. I’ve been on the Intelligence Committee in a briefing 

that kind of ran over. 

On January 31st of this year, I wrote a letter to Secretary Chao 

expressing concern that a bare few Santa Susana field laboratory 

workers who had filed claims for the Energy Employees Occupational Illness Compensation Program had been compensated and 

asking the status of the other requests. I’ve not received a response. 

So today I ask you, A, why is it that only 10 of 434 cases for 

workers who may be eligible for compensation under the Energy 

Employees Occupational Illness Compensation Program Act have 

received benefits? How many claims have been for workers, how 

many claims under EEOICPA by Santa Susana workers has the 

Department of Labor declined benefits on? C, many of Santa 

Susana workers sacrificed their health for the country. They are 

aging in population. When they can expect their final determination and payout on their applications for relief? 

On its web site, the Department of Labor indicates that 31 

claims have been referred to NIOSH and returned from NIOSH 

with dose reconstructions, yet when I look at the site profile at 

Santa Susana, the threshold studies, from what I understand, for 

the site have not been completed. The Department of Labor lists 

their status as under development. Can you explain how it is that 

31 claims have been returned from NIOSH with dose reconstruction when the occupational environmental dose, the occupational 

internal dose, and the occupational external dose have not been 

completed? 

Why is it that the Department of Labor requests less funding for 

settlement of these claims in FY 2007 than it did in FY 2006 when 

so many in my district still have seen no relief or help for their 

medical bills whatever? 

I yield back the balance of my time. 

Mr. HOSTETTLER. I thank the gentleman from California. 

At this time, I will introduce our panel—Mr. Shelby Hallmark is 

the Director for the Office of Workers Compensation Programs in 

the United States Department of Labor. Dr. John Howard is the 

Director of the National Institute for Occupational Safety and 

Health, or NIOSH. Dr. James Melius is the Administrator for the 

New York State Laborers Health and Safety Trust Fund and is a 

member of the Advisory Board on Radiation and Worker Health. 

Finally, Mr. Richard Miller is a Senior Policy Analyst with the 

Government Accountability Project. 

Gentlemen, thank you for your presence here. As standard operating procedure for the Judiciary Committee, I will ask you now to 

stand, raise your right hand, and take the oath. 

[Witnesses sworn.] 

Mr. HOSTETTLER. You may be seated. Let the record show that 

the witnesses responded in the affirmative. 

You will notice a set of lights that will help to aid us in the process of expediting the testimony process. You will have 5 minutes 

for your testimony. Without objection, your written statements will 

be made a part of the record. I’m going to ask you to stay as close 

to your 5 minutes as possible so that we can get to questions by 

the panel, and you will see a green light and then I believe it’s an 

10

amber light and then a red light when the 5 minutes is up. Thank 

you. 

Mr. Hallmark. 

TESTIMONY OF SHELBY HALLMARK, DIRECTOR, OFFICE OF 

WORKERS COMPENSATION PROGRAMS, U.S. DEPARTMENT 

OF LABOR 

Mr. HALLMARK. Thank you, Mr. Chairman, for the chance to describe the Department of Labor’s efforts regarding the program we 

call EEOICPA. I’m proud of what we and other agencies have done 

to build this program. 

First I’d like to say my staff are committed to delivering these 

benefits promptly and accurately. We know that many energy 

workers have been harmed and many are deeply disillusioned by 

their Government’s actions and by the long wait they’ve had to 

have their cases fairly heard. Our goal has been to make the Federal compensation program a reality that people can count on and 

quickly. 

In 2001, we worked hard to bring the new Part B program on 

line. Secretary Elaine Chao presented the first check less than 10 

months after enactment. Day one, we had a backlog of 30,000 cases 

and that backlog was under control within a year. To date, we’ve 

paid out $1.4 billion under Part B. Our management of Part B has 

been credible to the served community. We have only three cases 

so far that have been appealed to court. A GAO review had no findings with respect to DOL’s stewardship, and in October 2004, Congress chose to entrust the new Part E program to us as well. 

Part E brought a new backlog of 25,000 cases that had been 

pending for years under the old Part D program with the Department of Energy. This time, the first check went out within less 

than 2 months and we paid out $57 million under Part E before 

our regulations were even issued—on time—in May of 2005. To 

date, we’ve paid almost $300 million under Part E, which is a good 

start but only a start, and to demonstrate even broader progress, 

we have committed to making initial decisions on at least threequarters of all the old Part D cases by this September. We need 

to make this a real program. 

We need to move faster on some aspects on computing benefits 

for living employees under this program. The pay-outs so far have 

been largely to survivors since that can be done quickly, but all aspects of the program are now fully operable and we’re monitoring 

progress daily on wage loss and impairment payments for living 

workers. We will also use the feedback from our recent ombudsman’s report to sharpen our processes. 

The ombudsman’s report also reported concerns regarding the 

dose reconstruction process. While we all agree this process has 

taken longer than we would like, it has been a massive undertaking and NIOSH has taken the job very seriously and is working 

very hard to expedite it. 

We hear there are concerns with respect to the process of adding 

special exposure cohort classes, as you have spoken of, which conveys presumptive approval bypassing dose reconstruction for 22 

listed cancers. 

11

As the lead agency for EEOICPA, we have long supported close 

coordination between all the departments which share its administration. We’ve tried to help NIOSH and the Advisory Board in their 

deliberations on SEC expansions especially in terms of the impact 

that new class designations have on the claims process. For example, designation of a class may extinguish the chance for benefits 

for some workers with non-listed cancers. 

While HHS does the science of reconstructing radiation dose and 

deciding on new SEC classes, DOL must defend those findings in 

Federal Court. It’s a key value for us as the adjudicator and the 

entity entrusted with explaining to the public the overall workings 

of EEOICPA that critical action such as extension of the SEC are 

based on fair understandable and consistent principles. Under no 

circumstances does DOL seek to cut benefits through our coordination efforts in this matter. 

Determining the size and shape of an SEC class depends not only 

on scientific questions about radiation, but also on more mundane 

issues like placing workers in various locations within a facility. 

DOL has important information and insights with respect to those 

kinds of nonscientific issues. Also, clear definition of the boundaries 

of an SEC class is very important in individual case adjudication. 

DOL has sought input in the past designation process to ensure 

that we’ll be able to fairly adjudicate those boundaries once a class 

is established. For example, the SEC class for the Oak Ridge Y-12 

plant includes workers engaged in uranium enrichment operations 

or other radiological activities. Since the latter term has been hard 

to pin down, claims for various categories of work such as 

custodians, guards, construction workers, and so on could be judged 

either to be in or out of the class, which could cause adjudicatory 

problems and concerns for the claimants. 

DOL has a fiduciary responsibility for EEOICPA to make sure 

that payments are in accord with the law as established by Congress, but our main focus is that the program is administered fairly, accurately, and consistently and that it will be understandable 

to claimants throughout the nuclear weapons complex now and for 

years to come. We’ve worked hard to achieve that result and we’ll 

continue to so. 

I’ll be glad to answer questions when that time comes. 

[The prepared statement of Mr. Hallmark follows:]

PREPARED STATEMENT OF SHELBY HALLMARK

Mr. Chairman, and Members of the Committee, my name is Shelby Hallmark. I 

am the Director of the Office of Workers’ Compensation Programs (OWCP), a component of the Employment Standards Administration (ESA), Department of Labor 

(DOL). 

I am pleased to appear before the Subcommittee today to discuss the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). While we are 

proud of the progress DOL has made in implementing both Parts B and E of the 

Act, the EEOICPA has been and continues to be an interdepartmental activity, involving the closely coordinated efforts of the Departments of Energy (DOE), Health 

and Human Services (HHS), Department of Justice (DOJ), as well as Labor. 

PROGRAM HISTORY

The EEOICPA was initially enacted on October 30, 2000. It established a federal 

payment program (Part B) under which DOE contractor employees and certain 

other employees and their eligible survivors are entitled to receive monetary compensation and medical benefits from the federal government for radiation-induced 

12

cancer, beryllium disease or silicosis. Executive Order 13179 of December 7, 2000, 

assigned primary responsibility for Part B’s administration to DOL to ensure that 

the program was up and running by July 31, 2001. We succeeded in issuing interim 

final regulations in May of that year and established a fully functioning program 

on schedule. Secretary of Labor Elaine Chao presented the first EEOICPA check on 

August 9, 2001. 

Since then, DOL has received over 71,800 Part B claims covering 51,200 cases. 

(Each case relates to a single employee; more than one claim can be associated with 

a single case when multiple survivors are involved.) Our district office staff have 

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

in over 95 percent of the cases received. There have been 47,877 Final Decisions 

with 19,280 approvals and 28,597 denials. DOL has issued in excess of $1.3 billion 

in Part B compensation payments to over 17,600 claimants. Additionally, over $88 

million in medical benefits has been paid. The vast majority of denied claims are 

for conditions claimed that are non-covered conditions under Part B, largely due to 

confusion between Part B, which covers only three types of conditions, and the other 

segment of the statute, which covers all diseases caused by toxic exposures. 

EEOICPA originally included a second assistance program, under Subpart D of 

the Act, that established a process under which DOE contractor employees and their 

eligible survivors could seek assistance from DOE in obtaining state workers’ compensation benefits. Under this program, if a contractor employee’s claim satisfied 

certain preliminary criteria, DOE was required to submit the employee’s claim to 

a Physicians Panel, to determine whether the employee had contracted a covered 

illness as a result of exposure to a toxic substance at a DOE facility. If the Panel 

returned a positive finding that was accepted by the agency, DOE was authorized, 

to the extent permitted by law, to direct the DOE contractor not to contest the claim 

for state workers’ compensation benefits. 

In the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 

2005, Pub. L. 108–375 (October 28, 2004), Congress abolished Part D of EEOICPA. 

In its place, a new Part E was created, and administration of the new program was 

assigned to DOL. Part E establishes a new system of federal payments for DOE contractor employees and eligible survivors of such employees. Part E benefits were 

also extended to uranium miners, millers and ore transporters covered by section 

5 of the Radiation Exposure Compensation Act. Congress also amended certain 

other provisions contained in EEOICPA that applied to Part B and specified that 

DOL prescribe interim final regulations implementing the amendments to 

EEOICPA within 210 days of enactment. 

When the amendment was passed in October 2004, there were more than 25,000 

cases pending with the old Part D program, many for more than four years, thus 

creating an instant backlog for the new program. Accordingly, DOL identified certain types of claims that met specific, straightforward criteria contained in the 

amendment itself that could be adjudicated without detailed regulations. Within two 

months of enactment, DOL began providing compensation under the newly established Part E of the EEOICPA, using preliminary procedural guidance. Under the 

preliminary procedures, DOL issued over $55 million to 447 recipients prior to the 

issuance of regulations. 

On May 26, 2005, DOL successfully met the congressionally mandated deadline 

to prescribe regulations and begin full implementation of the new Part E. The release of interim final rules (IFR), published in the Federal Register on June 8, 2005, 

provided guidance regarding DOL’s administration of the Act and how the claims 

adjudication process will function. With the rule in effect, DOL can render decisions 

on all aspects of program. To further facilitate this process, DOL issued additional 

comprehensive procedural guidance in May 2005 and conducted training for all District Office field staff regarding the proper implementation of the new amendment. 

These procedures will be updated based upon the issuance of the Final Rule, and 

additional training will be conducted as needed. 

DOL can and will make changes to the new regulations that are appropriate given 

public comment and its actual experience in implementing the Act when it issues 

final regulations. Because of DOL’s experience in administering similar programs, 

and because of the close relationship of Part E of EEOICPA to the existing Part B, 

DOL is confident that this process will again work well. 

As noted, many claimants whose cases were transferred to DOL from DOE had 

been waiting for a decision for four years. To demonstrate our sense of urgency in 

addressing these claims, the Labor Department established a primary goal to issue 

1,200 Part E payments by the end of FY 2005, less than a year following enactment 

of the program. That goal was exceeded. By September 30, 2005, 1,535 payments 

totaling over $194 million in compensation benefits had been issued. The bulk of 

these compensation payments were made to surviving family members because the 

13

process for assessing impairment and wage loss to living workers was complex and 

took longer to establish under statutory and regulatory guidelines. Payments are 

now also being made to living employees, and DOL is committed to the swift, sure, 

and accurate adjudication of these cases as quickly as possible. 

Between the effective date of the enactment of the EEOICPA amendments on October 28, 2004, and February 21, 2006, DOL received the 25,000 plus occupational 

illness claims from the previous DOE program, as well as over 12,800 new Part E 

claims. We have made more than 7,200 Part E recommended decisions (the initial 

determination made in one of our four district offices), and more than 3,400 of those 

have gone through to final decision (the administrative judgment rendered by our 

Final Adjudication Branch). Compensation in excess of $292 million has been issued 

to 2,319 recipients under the new Part E program. An additional 1,359 cases are 

in the pipeline for payment. 

The DOL also initiated a series of Town Hall meetings to explain to affected workers or their survivors the benefits available, as well as explaining the IFR and other 

issues related to the implementation of Part E to affected workers or their survivors. Eighty-two meetings were held in cities that had the most claimants and potential claimants, such as Los Alamos, New Mexico; Oak Ridge, Tennessee; and 

Hanford, Washington. 

For greater efficiency and speed, OWCP is implementing the October 28, 2004, 

EEOICPA amendments, to the extent possible, by adjudicating all claims for benefits under Parts B and E of the EEOICPA as one EEOICPA claim. Where possible, 

decisions will be issued addressing both Part B and Part E simultaneously. However, partial decisions will be issued in cases where benefits under some provisions 

can be awarded but claims under other provisions require further development and 

documentation. 

ADMINISTRATION OF EEOICPA

EEOICPA is administered by the Division of Energy Employees Occupational Illness Compensation (DEEOIC) in OWCP. Claim adjudication is accomplished 

through four EEOICPA District Offices located in the OWCP regional offices. These 

District offices are located in Jacksonville, FL; Cleveland, OH; Denver, CO; and Seattle, WA with jurisdiction based on the location of the employee’s last employment. 

Headquarters, in Washington, DC, provides planning, budgeting, performance measures, accountability evaluations, policy, central medical bill processing, and administrative leadership. Additionally, final decisions are issued by the Final Adjudication 

Branch (FAB), which is independent from the District offices, through a National 

FAB office in Washington, DC, and four District FAB offices collocated with the District offices. DOL has hired over 180 additional personnel to administer both Parts 

B and E. 

DEEOIC Resource Centers continue to assist employees and families filing claims. 

Assistance is provided through eleven strategically placed Resource Centers located 

in Oak Ridge, TN; North Augusta, SC; Paducah, KY; Portsmouth, OH; Denver, CO; 

Espanola, NM; Livermore, CA; Idaho Falls, ID; Richland, WA; Las Vegas, NV; and 

Amherst, NY. As a result of a successful cost-comparison competition under OMB 

Circular A–76, the resource centers, as part of the government’s Most Efficient Organization (MEO), assumed additional responsibilities in employment verification 

and developing occupational histories for new Part E claims. Since August 2005, the 

resource centers fully completed 4,028 initial employment verification requests and 

3,151 Occupational History Questionnaires. 

EEOICPA PART B

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 future medical treatment for the covered condition 

(medical services and evaluations only for beryllium sensitivity). Qualified survivors 

of deceased covered employees may also be eligible for the lump sum compensation 

amount of $150,000. The EEOICPA also provides compensation in the amount of 

$50,000 to individuals or their eligible survivors awarded benefits by the Department of Justice (DOJ) under Section 5 of the Radiation Exposure Compensation Act 

(RECA). 

14

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 (DOJ) 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. 

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

SEC facility because the Act provided a presumption that any of the twenty-two listed cancers incurred by an SEC worker was caused by radiation exposure at the SEC 

facility. In cases involving cancers other than the twenty-two specified cancers in 

the Act, the case will be referred to the National Institute for Occupational Safety 

and Health (NIOSH) for a dose reconstruction so that a determination can be made 

whether to award benefits based upon the probability that radiation caused the cancer. The dose is the relevant amount and character of radiation to which the individual was exposed related to his or her employment in the nuclear weapons complex. 

After NIOSH completes the dose reconstruction and calculates a dose estimate for 

the worker, DOL takes this estimate and applies the methodology also promulgated 

by the Department of Health and Human Services in its probability of causation 

regulation to determine if the statutory causality test is met. The standard is met 

if the cancer was ‘‘at least as likely as not’’ related to the covered employment, as 

indicated by a determination of at least a 50 percent probability. 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. 

NIOSH recently designated several classes for inclusion in the Special Exposure 

Cohort. To date, these include the Uranium Division of Mallinckrodt Chemical 

Works at the Destrehan Street facility (St. Louis, MO) from 1942–1948 and from 

1949–1957; AEC operations during the period from March 1949 through 1974 for 

the Iowa Army Ammunition Plant (IAAP); IAAP employees who worked as 

radiographers from May 1948 to March 1949 in support of AEC operations; employees involved in uranium enrichment operations or other radiological activities at the 

Y–12 Plant from March 1943 through December 1947; and certain employees at the 

Linde Ceramics Plant in Tonawanda, New York, 1942–1947. DEEOIC has issued 

special procedures for the proper handling of these claims and stands poised to develop and adjudicate claims arising out of these and any future new SEC designations. 

The DEEOIC strives to achieve quality agency decisions and provide clear and effective communications to its customers and stakeholders. In its September 2004 report entitled ‘‘Energy Employees Compensation; Many Claims Have Been Processed, 

but Action Is Needed to Expedite Processing of Claims Requiring Radiation Exposure Estimates,’’ the Government Accountability Office (GAO) evaluated ‘‘how. . . 

Labor’s procedures and practices ensure timely and consistent processing of claims 

not referred to NIOSH.’’ Through January 2004, 83% of all claims not requiring 

NIOSH dose reconstruction were fully processed. GAO indicated it saw no need ‘‘to 

issue formal recommendations regarding DOL performance.’’

The Final Adjudication Branch (FAB) continues to perform well. To accommodate 

the anticipated Part E caseload, staff for the FAB has been doubled. In FY 2005 

FAB issued 11,709 claim-level final decisions under Part B and 2,110 claim-level 

final decisions under Part E, significantly surpassing the operational plan goals. 

FAB conducted 656 hearings and responded to 897 requests from claimants for review of the written record during the year. 

EEOICPA PART E

The creation of Part E of EEOICPA established a new system of federal payments 

for DOE contractor employees and eligible survivors of such employees for illnesses 

determined to result from exposures to any toxic substances at a DOE facility. 

These benefits are also provided to uranium miners, millers, and ore transporters 

covered by Section 5 of the Radiation Exposure Compensation Act (RECA). Part E 

provides up to $250,000 in compensation and medical benefits for accepted illnesses. 

Benefits are provided for any illness if it is established that it is at least as likely 

as not that exposure to a toxic substance was a significant factor in causing, contributing to, or aggravating an illness or death of the employee. Additionally, the Act 

provides that any determination to award benefits under Part B (including for 

15

RECA Section 5 claims), as well as any positive finding by DOE under Part D, is 

an automatic acceptance of causation under Part E. 

Part E compensation determinations involve components of impairment, wage- loss, and survivor benefits. The maximum benefit is $250,000 for all claims relating 

to any individual employee. Medical benefits do not count against the maximum 

compensation cap. Living employees are eligible for benefits based on impairment 

and years of qualifying wage-loss and survivors are eligible for survivor benefits 

that include additional benefits if there were also significant years of qualifying 

wage-loss associated with the accepted illness. 

The statute defines survivors under Part E as a living spouse who was married 

to the employee for at least one year immediately prior to the death of the employee, 

and certain dependent children. If there is no living spouse, unlike in Part B, children are only eligible survivors if at the time of death of the employee they were 

under the age of 18 years old, under 23 years old and a full time student continuously since age 18, or any age if incapable of self support. The Act provides a ‘‘basic’’ lump sum benefit of $125,000 to eligible survivors 

where it is established that the employee was exposed to a toxic substance at a DOE 

facility; that it is at least as likely as not that the exposure caused, contributed to, 

or aggravated an illness; and, that the illness then caused, or contributed to the 

death of the employee. It also provides $25,000 in additional benefits to eligible survivors of a deceased Part E employee, beyond the ‘‘basic’’ lump-sum payment in the 

amount of $125,000, if the deceased employee had, up to his or her ‘‘normal retirement age’’ under the Social Security Act, at least ten aggregate calendar years of 

wage-loss of at least 50 percent of his ‘‘average annual wage.’’ If an employee had 

at least twenty such years, the additional amount paid to an eligible survivor of 

such employee increases to $50,000. 

DEEOIC has contracted with a variety of health care professionals from a diverse 

background of medical disciplines to evaluate claims for causation and impairment. 

DEEOIC is assembling a network of physicians to review case files and will have 

physicians on-site at each of our four district offices to provide input to its claims 

professionals regarding complex medical issues. In addition, DEEOIC added a Medical Director to its National Office staff to assist with case file review and policy 

determinations. 

ADMINISTRATIVE CHALLENGES

The primary difficulty in implementing both parts of EEOICPA has been to get 

an effective claims processing system up and running in a very short period of time, 

so as to address large initial backlogs. 

PART B

The statistics provided above indicate that we have been largely successful in addressing the Part B backlog, with the exception of those cases that require a dose 

reconstruction. More than 21,000 cases have been referred to NIOSH for dose reconstruction since the program’s inception, and about 11,600 dose reconstructions have 

been completed, leaving roughly 8,500 cases pending at NIOSH. This time-consuming process has been the source of significant concern, and NIOSH has taken 

numerous steps to speed up its production of completed reconstructions. During FY 

2006, NIOSH has returned an average of 500 completed dose reconstructions per 

month, and they project resolving a large portion of the current inventory by the 

end of this fiscal year. 

The creation of new SEC classes requires close coordination between DOL and 

NIOSH to determine which cases at the site in question have been affected by the 

new class and which continue to require dose reconstruction. Because each new SEC 

class designation has been unique in its rationale and in its impact on how (or if) 

dose reconstruction can be done for cancers that are not granted presumptive coverage, DOL and NIOSH have had to work out unique procedures for each class for 

determining how such cases will be processed. The return of large numbers of SEC 

cases also creates large unanticipated workload increases in DOL’s district offices, 

and DEEOIC leadership has had to respond to those bulges in workload by shifting 

caseloads among the four district offices. 

Once a class is added, DOL must also use the designated class definition to identify claims that meet the requirements for adjudication as an SEC claim. Recent additions to the SEC have proven to be problematic due to ambiguous or inconsistent 

class definitions. For example, the HHS designation document defined the Oak 

Ridge Y–12 class as employees who worked in uranium enrichment operations or 

‘‘other radiological activities.’’ It is not clear what functions or employee groups are 

covered by the latter term. Numerous claims from employees such as calutron buildVerDate 0ct 09 2002 10:20 Aug 02, 2006 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\030106\26290.000 HJUD1 PsN: 26290
16

ing custodians, security workers, laborers, and others who could have been exposed 

in these facilities may not meet the definition as designated. Conversely, individuals 

who were likely not significantly exposed may be included in the SEC class due to 

the ambiguity of the class definition. DOL continues to coordinate with HHS/NIOSH 

to achieve the clearest and most accurate class definitions possible, so that claims 

decisions flowing from these determinations are understandable and fair. 

PART E

While we are proud of our ability to get the new program up and running on time 

and within Congressional deadlines—and particularly of our ability to make a significant number of payments in the first year—Part E is more complex than the 

older program and has presented challenges in ensuring that all aspects are fully 

operational. In addition, efforts to ramp up case processing under the new Part E 

must be balanced with continued timely support of Part B claims processing, which 

has itself become more complicated with the declaration of several new SEC classes. 

The start-up time for Part E was somewhat more protracted than we had hoped, 

especially with respect to the full implementation of procedures for handling wageloss and impairment rating determinations. These processes required the development of complex procedural guidance, engagement of medical consultants and retainers to carry out case evaluations, and extensive staff training. As a result, the 

great majority of payments made under Part E to date have gone to survivors, 

whose benefits are much simpler to compute. 

Nevertheless, all the necessary components of the Part E program are now in 

place and, for the remainder of FY 2006, we anticipate a substantial increase in 

both the total number of cases being adjudicated and the numbers and types of payments being issued. 

OFFICE OF THE OMBUDSMAN

The 2004 amendments also created an Office of the Ombudsman. In compliance 

with statutory requirements, on February 24, 2005, the Secretary appointed Donald 

Shalhoub to serve as the Ombudsman. The role of the Ombudsman is to conduct 

outreach to claimants and potential claimants; make recommendations to the Secretary of Labor on where to locate Resource Centers; submit an Annual Report to 

Congress by February 15, setting forth the number and types of complaints, grievances and requests for assistance received by the Ombudsman, and an assessment 

of the most common difficulties encountered by claimants and potential claimants 

under Part E. In making her selection, the Secretary picked an extremely qualified 

individual with long experience in addressing occupational safety and health issues 

and a commitment to assisting workers. 

As you know, Mr. Shalhoub recently submitted his first Report to Congress. While 

his report naturally highlights the complaints and concerns some 600 claimants 

brought to his attention, we believe it is important to compare this number to the 

more than 45,000 individuals who have filed a Part E claim thus far. We believe 

the great majority of this community understands that DOL is working hard to respond to their needs, and recognizes that a new program of this kind will take some 

time to address everyone’s claim, particularly since we inherited a backlog of 25,000 

claims. 

A significant percentage of the specific concerns raised by claimants relate to statutory restrictions (e.g., the exclusion of adult children from survivor benefits under 

Part E) which are beyond the purview of DOL. An additional group complains about 

the dose reconstruction process, which is being addressed by HHS/NIOSH. With respect to issues that do relate to DOL’s administrative responsibilities, we take the 

concerns expressed in the Report seriously and will use them to improve our processes and especially our offices’ communications with claimants. 

In several areas, the issues raised indicate confusion about how existing policies 

and procedures actually work, or a lack of clarity of the program documentation we 

provide. To address these concerns and the Ombudsman’s related recommendations, 

we will, among other actions, work with NIOSH and our own staff to ensure that 

the waiver and appeals processes involving dose reconstruction and the related Part 

B and Part E adjudications are more clearly explained; ensure that DEEOIC decisions and other documents make it clear whether they apply to Part B, Part E, or 

both; and issue general information materials explaining in more detail how wageloss and impairment rating decisions will be handled. 

The Report discloses that the Ombudsman received 23 complaints that claims examiners do not always return phone calls. DOL is working hard to avoid such service lapses. We carefully track phone calls received from claimants and hold our employees accountable for meeting program standards for prompt response. In FY 

17

2005, OWCP received 53,164 EEOICPA-related telephone calls, of which 37,060 

were responded to at the time of the call. Of the remaining 16,104 which required 

a return call, over 96 percent were completed within 2 days. The program is striving 

to improve upon its customer service, and will seek to better those statistics in FY 

2006. 

The Report stated that 10 claimants believe that OWCP’s District Offices do not 

share their sense of urgency because their claims have been reassigned to new 

claims examiners. We hope that the public will recognize that such reassignments 

have been necessary due to the addition of nearly 200 new employees during the 

past year and are part of our effort to expedite case processing across-the-board. We 

understand the concern and frustration of claimants who have been awaiting a decision for several years, we are committed to working as quickly as possible to resolve 

these cases, and we are keenly aware of the urgency for claimants who are ill, and 

in many cases, very elderly. 

A number of claimants’ comments stated that they believe the burden of presenting employment and exposure records rests solely on claimants. However, 

OWCP and NIOSH systematically gather employment and exposure information 

from DOE, the Former Worker Medical Screening programs, contractors who employed covered employees, the Social Security Administration, and many other 

sources. Thus, the vast majority of information used by NIOSH in creating a dose 

reconstruction is obtained from sources other than claimants. Similarly, most of the 

employment documentation used by OWCP in determining covered employment is 

obtained by OWCP from sources other than claimants, and we have created a database called ‘‘site exposure matrices’’ to assist claims examiners in determining the 

types of chemicals and toxic substances that existed at the major DOE facilities. 

These databases also help DEEOIC claims professionals assess relationships between potential exposures and a claimed illness. In addition, DEEOIC has added 

industrial hygienists and a toxicologist to its National Office staff to assist in exposure evaluation. It should be noted that no Part E claim was denied based on inadequate evidence of toxic exposure during 2005. 

DOL PERFORMANCE GOALS AND OUTCOMES

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

all the programs we administer. With respect to Part B of the EEOICPA, the 

DEEOIC 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 (FY 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 from RECA claims, and 

within 180 days for Atomic Weapons Employer, beryllium vendor, and subcontractor 

cases (for which employment and other critical information is generally more difficult to obtain). Because we had received nearly 30,000 cases when our authority 

under Part B commenced on July 31, 2001, 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, 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 full year of operation (FY 2002), despite the backlog of cases from the previous year. The smaller number of final decisions completed 

in FY 2002 met our GPRA timeliness goals in 76 percent of cases. 

During FY 2003, the DOL program was able to eliminate the initial backlog of 

claims, leaving only a working inventory of about two to three months’ incoming 

claims pending in our district offices. At the same time, and despite making decisions on many older cases as we cleared the backlog, the program was able to exceed its GPRA timeliness goals. Our district offices issued initial decisions within 

the target timeframe in 79 percent of all cases processed, in excess of the 75 percent 

goal. Our Final Adjudication Branch issued 77 percent of its final decisions within 

the program standards, also in excess of a goal of 75 percent. 

During FY 2004, we continued to improve on these results, exceeding our GPRA 

standards on all counts and driving down the average times to complete each phase 

of the different types of Part B claims. For example, the average time to complete 

an initial decision for cases from DOE facilities has been reduced from 98 to 73 

18

days, and the average for cases from all other facilities and subcontractors is down 

from 123 to 99 days. 

During implementation of Part E during FY 2005 our district offices continued to 

adjudicate Part B claims timely in 81 percent of the cases, exceeding the 80 percent 

goal. The Final Adjudication Branch issued 95 percent of its final decisions timely, 

well in excess of the 80 percent goal. 

Accomplishment of these goals took the persistent, case-by-case effort of the entire 

staff, as well as the continuing support of our Solicitor’s Office. Close and frequent 

coordination with HHS allowed us to move cases smoothly and efficiently to NIOSH 

when dose reconstruction is needed. In addition, DOL and DOE worked cooperatively to improve the employment verification process and reduce the average time 

for completion of DOE verifications from nearly 90 days at the beginning of FY 2003 

to a current average of less than 45 days. These cooperative measures were instrumental in reducing Part B processing times. 

The number of requests for administrative review has been relatively low, and 

only three Part B cases have been appealed in Federal district court, suggesting 

that the new program has reached a level of accuracy that builds credibility for its 

decisions. 

With respect to Part E, as previously noted, DOL exceeded its FY 2005 GPRA goal 

for this Part by issuing more than 1,500 payments during the first 10 months following enactment. Cognizant of the long wait experienced by those who filed originally with the DOE Part D program, our GPRA goal for FY 2006 is to complete initial processing for at least 75% of the more than 25,000 cases transferred from DOE. 

NIOSH projected that by the end of FY 2006 most of the backlog of cases pending 

for dose reconstruction would be finalized and returned to DOL as well. Largely for 

these two reasons, we projected a major bulge (an increase of nearly $1 billion) in 

EEOICPA payouts for FY 2006. We anticipate receiving a stable stream of new 

claims in FY 2006 and FY 2007 (approximately 10,000 under each Part); but, whereas many payments are expected to result in FY 2006 from the backlog clearance efforts both with respect to the old Part D claims and the cases pending at NIOSH, 

that volume was projected to decline in FY 2007, resulting in total payouts that will 

substantially exceed the FY 2005 experience, but will be much lower than FY 2006. 

The estimated decrease in Part B benefits from FY 2006 to FY 2007 is not based 

on any projection of reductions or limitations in the number of additions to the Special Exposure Cohort. The budget impact of the Special Exposure Cohort process is 

not readily predictable because too many factors are unknown, e.g., which petitions 

will be successful, how many employees are involved, what new petitions will be 

forthcoming, etc. Since the compensation benefits are mandatory funding, if additions to the Special Exposure Cohort were greater than anticipated, benefits would 

still be paid regardless of the projections presented in the President’s Budget. 

In summary, I am pleased to report that all aspects of the EEOICPA, both Part 

B and E, are fully operational, and we anticipate accomplishing our challenging performance goals for both programs in FY 2006. We believe we have established a 

credible program and forged effective working relationships with our participating 

agencies—DOE, HHS and DOJ, as well as DOE contractors and labor unions. Between FY 2001 and FY 2006, DOL implemented two brand-new compensation programs with widely divergent benefit schemes. We promulgated new regulations, formalized procedures, hired and trained nearly 500 Federal employees nationwide, 

and administered benefit disbursement in accord with congressionally mandated criteria. We are confident that we will be able to rise to the challenge of resolving the 

remaining backlog of Part E cases, and, working with NIOSH, to similarly resolve 

the dose reconstruction backlog. Every member of the DEEOIC staff is keenly aware 

that many workers have been waiting many years for compensation and we are 

doing our best to serve them. 

Thank you for the opportunity to describe our efforts in implementing EEOICPA. 

I would be pleased to answer any questions the Subcommittee may have.

Mr. HOSTETTLER. Thank you, Mr. Hallmark. 

Dr. Howard. 

19

TESTIMONY OF JOHN HOWARD, M.D., M.P.H., 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, and Members of the 

Subcommittee. I’m pleased to appear before you today to talk about 

the HHS activities. 

In 2002, HHS promulgated two regulations on the same day, one 

a dose reconstruction regulation and the other to assist the Department of Labor in determining probability of causation. In 2004, 

HHS promulgated a third regulation on the special exposure cohort 

petition and petition evaluation processes. 

NIOSH began developing a dose reconstruction program in the 

summer of 2001, establishing a robust scientific foundation as the 

basis for our program. We’ve hired two contractors to assist us with 

that activity. The first contract was awarded in 2003 to the Oak 

Ridge Associated Universities, and the second was awarded in 2005 

to Battelle Science and Technology International. Of the 21,123 

cases that we have received from the Department of Labor for dose 

reconstruction, we have returned to DOL as completed cases 13,813 

or 65 percent of our program’s caseload. 

In addition to processing individual dose reconstructions, we’ve 

also been actively working on evaluating special exposure cohort 

petitions. Since HHS promulgated our role in 2004, we’ve received 

a total of 55 submissions for adding classes to the SEC. Of those, 

26 did not qualify for evaluation, 14 are in the stage of being qualified, six have qualified as petitions and are being evaluated now, 

and nine were approved for addition to the SEC representing six 

classes of employees at four sites. Five of these six classes were initiated by petitions by former employees, survivors, or their representatives. One class, however, Linde Ceramics Plant, was added 

because NIOSH, on its own initiative, determined that data to estimate radiation doses with sufficient accuracy was not available for 

a specified time period. 

To date, 20 submissions have been closed because they did not 

qualify. Some of these petitions were withdrawn by the applicants. 

Some lacked appropriate evidence despite substantial assistance 

from NIOSH, and some requested the addition of classes that were 

already statutorily included in the congressional cohort. 

Finally, the President charged HHS with administering a new 

Federal Advisory Committee, the Advisory Board on Radiation and 

Worker Health, to advise the Secretary of HHS. The Board is 

chaired by Dr. Paul Ziemer, an internationally-recognized health 

physicist, and consists of 12 distinguished members, one who is 

present here today, representing scientists, physicians, and representative workers, a membership which reflects the act’s requirement that the Board include a balance of scientific medical and 

worker perspectives. 

Since the Board first met in January 2002, Board members have 

met a total of 46 times in work groups, Subcommittees, or as the 

full Board. The Board made recommendation to the Secretary for 

the addition of all of the six SEC classes that have been added thus 

far. A technical support contractor was secured in 2003 to address 

the Board’s request for assistance in better managing its workload. 

20

Many of the review comments of this contractor have been extremely constructive to us and to the Board and very useful in 

making sure that we have rigorous scientific peer review of our 

work. 

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

[The prepared statement of Dr. Howard follows:]

PREPARED STATEMENT OF JOHN HOWARD

Mr. Chairman and Members of the Subcommittee, my name is John Howard and 

I am director of the National Institute for Occupational Safety and Health (NIOSH), 

part of the Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services (HHS). I am joined today by Mr. Larry Elliott, 

Director of the NIOSH Office of Compensation Analysis and Support, and Dr. Lewis 

Wade, Senior Science Advisor at NIOSH. I am pleased to appear before you today 

to provide testimony on the status of HHS activities under the Energy Employees 

Occupational Illness Compensation Program Act of 2000 (‘‘the Act’’). 

I will describe and summarize the progress of the HHS responsibilities under the 

Act, delegated by the President under Executive Order 13179 issued on December 

7, 2000:

• Develop scientific guidelines for determining whether a worker’s cancer is related to the worker’s occupational exposure to radiation (‘‘probability of causation’’) and methods to estimate worker exposure to radiation (‘‘dose reconstruction’’),

• Use the dose reconstruction regulation to develop estimates of radiation dose 

for workers who apply for compensation,

• Establish a process by which classes of workers can be considered for inclusion in the Special Exposure Cohort, and

• Provide support for the Advisory Board on Radiation and Worker Health 

REGULATIONS FOR DOSE RECONSTRUCTIONS AND CANCER CAUSATION

HHS was charged with promulgating two regulations. One regulation establishes 

methods for conducting radiation dose reconstructions for cancer claimants (42 

C.F.R. pt. 82). Dose reconstruction is a science-based process for retrospectively estimating the amounts and types of radiation doses incurred by a person. This effort 

included substantial scientific work by NIOSH to develop specialized analytical 

methods and tools needed to estimate the occupational radiation doses of nuclear 

weapons workers. 

The second HHS-promulgated regulation establishes guidelines by which the Department of Labor (DOL) determines whether the cancer of an employee is ‘‘at least 

as likely as not’ related to the radiation doses estimated for that employee through 

a dose reconstruction (42 C.F.R. pt. 81). This regulation is for determining the 

‘‘probability of causation,’’ which is the probability that a person’s cancer was related to radiation from employment at the specified facility, required the further development of a scientific tool, the ‘‘Interactive RadioEpidemiological Program’’ 

(IREP). IREP is a computer program that uses ‘‘risk models’’ for associating radiation doses with risk information on different cancers. IREP estimates the probability of disease causation specific to each employee’s unique history of exposures 

to different types and quantities of radiation during the course of his or her employment. In the final development of this tool, NIOSH collaborated with the National 

Cancer Institute, which had created the initial paper version in the 1980s and was 

in the process of updating it in response to an extensive scientific review by the National Research Council. 

In promulgating the two regulations, HHS invited and considered comments of 

the public and the Presidentially-appointed Advisory Board on Radiation and Worker Health (‘‘the Board’’). The Board reviewed and advised HHS on both of these 

rules during the public comment and supported the final rules, which were finalized 

on May 2, 2002. The regulations are designed to provide efficiencies in dose reconstruction efforts for purposes of arriving at timely decisions on compensation. The 

regulations allow for new scientific findings and consensus to be integrated after 

proper scientific consideration. 

An example of this recently occurred when NIOSH published a Federal Register 

Notice and provided an opportunity for the public to comment on a proposed change 

in the process for selection of target organs used in dose reconstructions for energy 

21

employees with lymphoma cancers. This change was in response to an evaluation 

by NIOSH of current scientific data on lymphoma, which revealed that the site of 

the radiation injury can differ from the site of the tumor or cancer origin documented in the medical files of a lymphoma cancer patient. On February 15, 2006, 

NIOSH finalized the new process (for selecting the dose reconstruction target organs 

for energy employees with lymphoma cancers). The new process selects the organ 

that would have received the highest radiation dose from among relevant, possibly 

irradiated organs, as determined through the dose reconstruction process, when the 

identity of the target organ is in question. This change is now being used to complete dose reconstructions for lymphoma cases and may result in DOL calculating 

a higher probability of causation determinations for select lymphoma cases. NIOSH 

is also reviewing the dose reconstructions for lymphoma cases that have already 

been completed and returned to DOL. If the new process will result in DOL calculating a higher 

probability of causation that will result in approval of a denied case, a new dose 

reconstruction will be provided to the claimant and to DOL. 

DOSE RECONSTRUCTION PROGRAM

The second responsibility of HHS, delegated to NIOSH, is the development and 

administration of a dose reconstruction program to serve cancer claimants under the 

Act. This is the largest and most challenging responsibility assigned to HHS. The 

production scale and scientific complexity of the dose reconstruction program required by the Act are significant compared to other Federal compensation programs 

requiring dose reconstructions. 

NIOSH began developing a dose reconstruction program in the summer of 2001. 

In accordance with its responsibilities to date, NIOSH established a broad scientific 

foundation, the cornerstones of which are the radiation dose reconstruction methods 

and cancer risk models for occupational radiation exposures. The scientific fields 

and disciplines needed for dose reconstructions include mathematics; health physics; 

bio-kinetic modeling; statistical treatment, analyses, and testing; exposure assessment; and nuclear engineering. The development and maintenance of the cancer 

risk models for this compensation program require epidemiology; statistical treatment, analyses, and testing; medical interpretation; and risk assessment modeling 

and communication. 

To assist in conducting individual dose reconstructions, NIOSH develops different 

kinds of informational documents and updates them as necessary if more information is obtained. 

Site Profile documents provide information on the radiation protection practices 

of a facility. The six sections of a Site Profile document are called Technical Basis 

Documents, and each address a specific topic, such as a site description, occupational medical dose, or occupational internal dose. Completion of individual dose reconstructions may require all, none, or only certain sections of a Site Profile document. As each Technical Basis Document is completed, it is used to complete dose 

reconstructions and assure consistency. 

We also develop Technical Information Bulletins, which provide clarification on 

how a specific method can be used to complete a dose reconstruction, on how the 

information in a Technical Basis Document or Site Profile can be used to meet a 

specific need in the dose reconstruction process, or on how to provide specific technical information that supports or justifies the tables or information included in a 

Technical Basis Document or Site Profile. 

NIOSH also developed and implemented procedures for performing dose reconstructions; developed a records and data management system; and initiated numerous records retrieval efforts. NIOSH established and coordinated efforts with DOL, 

the Department of Energy (DOE), and the Defense Threat Reduction Agency in the 

Department of Defense. 

NIOSH has two contractors to assist with the development of site profile information and completion of dose reconstructions. The first contract was awarded on October 12, 2003, to Oak Ridge Associated Universities (ORAU). The contract involves 

personal interviews with the claimants, retrieval and validation of individual monitoring data, reconstruction of exposure conditions at various DOE and DOE contractor facilities (site profile development), and the completion of individual dose reconstructions. The second contract was awarded on October 12, 2005, to Battelle 

Science and Technology International (Battelle). The contract involves the reconstruction of exposure conditions at various Atomic Weapons Employer facilities and 

the completion of individual dose reconstructions. 

Following are the status and accomplishments of the dose reconstruction program: 

22

General Claim Information 

• EEOICPA encompasses 362 covered sites. NIOSH has received claims from 

195 of those sites, over 100 of which have five or fewer claims.

• Of the 362 covered sites, approximately 40 are DOE sites and represent the 

majority of claims; more than 300 sites are Atomic Weapons Employer sites 

(sites which processed or produced material that emitted radiation and was 

used in the production of atomic weapons, excluding uranium mining and 

milling). 

Dose Reconstructions 

• Cases sent to NIOSH by DOL for dose reconstruction: 21,092

• Cases returned to DOL: 13,742 (65% of total 21,092)

The chart below illustrates NIOSH progress in monthly caseloads:

Documents 

• Developed 129 Technical Basis Documents, 40 Technical Information Bulletins

• Developed 63 implementation procedures (45 ORAU procedures and 18 OCAS 

procedures) 

SPECIAL EXPOSURE COHORT

The next responsibilities of HHS are directly related to the dose reconstruction 

program: defining the requirements for adding classes of employees to the Special 

Exposure Cohort (‘‘the Cohort’’) and developing a process for receiving, evaluating, 

and processing Cohort submissions received. 

Under the Act, claims for members of the Cohort who have any of 22 specified 

cancers designated by the Act would not require dose reconstructions or a determination by DOL of probability of causation. Congress included in the Cohort certain employees of three DOE facilities, known as the gaseous diffusion plants, as 

well as employees of a nuclear weapons test site in Amchitka, Alaska. In addition, 

the President has authority, delegated to HHS, to designate additional classes of 

employees to be members of the Cohort, subject to Congressional review, if two tests 

are met:

(1) it is not feasible to estimate with sufficient accuracy the radiation dose that 

the class received; and

(2) there is a reasonable likelihood that such radiation dose may have endangered the health of members of the class.


HowardX.eps
23

On May 28, 2004, HHS promulgated a regulation to allow it to implement this 

authority—Procedures for Designating Classes of Employees as Members to the Special Exposure Cohort under EEOICPA (42 C.F.R. pt. 83). The guidelines used to 

evaluate the feasibility of reconstructing doses for a proposed Cohort class are established in this rule. It states that dose reconstructions can be performed with sufficient accuracy if: ‘‘NIOSH has established that it has access to sufficient information 

to estimate the maximum radiation dose for every type of cancer for which radiation 

doses are reconstructed, that could have been incurred in plausible circumstances 

by any member of the class or if NIOSH has established that it has access to sufficient information to estimate the radiation doses of members of the class more precisely than an estimate of the maximum radiation dose.’’

The regulation provides for petitions in two circumstances. One circumstance is 

when NIOSH has attempted to conduct a dose reconstruction for a cancer claimant 

and finds that the dose reconstruction cannot be completed because there is insufficient information to estimate the radiation doses of the claimant with sufficient accuracy. The second circumstance includes all other possibilities. For example, a petition may be submitted representing a class of employees whose members have yet 

to file claims under EEOICPA, or even have yet to be diagnosed with cancer. 

Once the Cohort regulation was promulgated, NIOSH was able to begin considering petitions, working closely with petitioners to assist with their Cohort submissions in order to qualify the submission as a petition for evaluation. To qualify for 

evaluation, a submission must contain sufficient information to establish that the 

radiation exposures sustained by employees at a site were not monitored, either 

through personal or area monitoring; or that such records have been lost, falsified, 

or destroyed; or that there is no information regarding monitoring, source, source 

term, or process from the site. This information may be provided by documents, affidavits, reports from a health physicist or other individual with expertise, or a government report of a scientific or technical nature. 

NIOSH uses a hierarchical approach to evaluate the types of information available to reconstruct doses. The primary data used for determining internal exposures 

are from personal monitoring data, such as urinalysis, fecal samples, and whole 

body counting results. If these are unavailable, the air monitoring data from breathing zone and area monitoring is used to estimate the potential internal exposure. 

If personal monitoring and area monitoring are unavailable, internal exposure estimates can be made from modeling potential exposures from the source term and 

process information. The source term is developed from the quantity of the radioactive material(s) involved or the exposure potential of the radiation generating device. 

The same hierarchy is used for determining the external exposures to the cancer 

site. Personal monitoring data from film badges or thermal luminescent detectors 

are the primary data used for determining external exposures to the cancer site. If 

there are no personal monitoring data, exposure rate surveys and source term modeling can be used to determine the potential external exposure. In addition to the 

occupational external exposures from facility operations, occupational medical exposures from routine X-ray examinations given to the energy employee as a condition 

of employment are also included in the external exposures. These exposures are estimated using technical information relative to the type of X-ray equipment used at 

a point-in-time at the facility. When all of the sources of data described above have 

been determined to be unsuitable for establishing maximum plausible radiation 

doses, it can be concluded that doses cannot be reconstructed with sufficient accuracy. 

Once a submission has qualified for evaluation, NIOSH evaluates the petition 

based on the issues discussed above. A completed evaluation report is sent to both 

the petitioners and the Board. The Board reviews the petition and provides a recommendation to the Secretary of HHS on the feasibility of conducting dose reconstructions for members of the petitioning class. As required by the Act, the final 

step in the petitioning process is an opportunity for Congress to review certain designations by the Secretary of HHS. These decisions become effective in 30 days, unless Congress provides otherwise. 

Current Cohort Information 

• Six classes of employees at four sites have been added to the cohort. Three 

of these classes (Mallinckrodt Chemical Company—Destrehan Street; Iowa 

Army Ammunition Plant; and Y-12 Facility) were added due to petitions received from former employees, survivors, or their authorized representatives. 

One class, Linde Ceramics Plant, was added because NIOSH determined that 

data to estimate radiation doses with sufficient accuracy were not available 

for a specified time period.

24

• NIOSH is currently evaluating six submissions and will send completed evaluation reports to the petitioners and the Board. These submissions are Pacific 

Proving Grounds, Y-12 (Oak Ridge), Rocky Flats Plant, Oak Ridge Institute 

for Nuclear Studies, Ames Laboratory, and Chapman Valve.

• NIOSH notifies applicants of any requirements that are not met by the submission and assists the applicants with guidance through phone consultations 

and written communication in developing necessary information. Currently, 

NIOSH is providing such assistance to applicants involved with 11 submissions. It is not known which, if any, of these submissions will ultimately qualify for evaluation as a Cohort petition.

• To date, 20 submissions have failed to qualify for evaluation as Cohort petitions, and have been closed. Some submissions have been withdrawn by the 

applicants, and some submissions requested the addition of classes of employees to the Cohort that were already included in the statutory Cohort. Other 

submissions lacked appropriate evidence despite substantial assistance from 

NIOSH.

• On December 22, 2005, NIOSH published a notice in the Federal Register requesting public review and comment on proposed changes to the Cohort rule 

(42 C.F.R. pt. 83) to address changes to the Act authorized by the National 

Defense Authorization Act for Fiscal Year 2005 (codified as amended in scattered sections of 42 U.S.C.). Comments on the interim final Cohort ruled will 

be accepted until March 23, 2006. 

ADVISORY BOARD ON RADIATION AND WORKER HEALTH

Finally, the President charged HHS with administering a new Federal advisory 

committee, the Advisory Board on Radiation and Worker Health (‘‘the Board’’), to 

advise the Secretary of HHS. Members are invited to serve overlapping terms of up 

to four years, except that any member appointed to fill a vacancy for an unexpired 

term shall be appointed for the remainder of that term. HHS provides administrative services, funds, facilities, staff, and other necessary support services. 

HHS nominated and the President appointed the initial member of the Board in 

2001. The Board is chaired by Dr. Paul Ziemer, an internationally recognized health 

physicist, and consists of 12 members representing scientists, physicians, or representatives of nuclear weapons workers—a membership which reflects the Act’s requirements that the Board include a balance of scientific, medical, and worker perspectives. 

Board Accomplishments 

• Since the first Board meeting in January 2002, Board members have met a 

total of 46 times in workgroups, subcommittees, as the full Board. The most 

recent meeting occurred this week.

• CDC secured a technical support contractor, Sanford Cohen & Associates 

(SC&A), on October 10, 2003 to address the Board’s request for assistance in 

better managing its workload. SC&A is currently assisting the Board with 

their work on dose reconstruction reviews, site profile reviews, and the Cohort 

petitioning process.

• The Board has reviewed 60 dose reconstructions and 21 procedures of the 

NIOSH program. The Board’s review of dose reconstruction procedures has 

been constructive. Many of the review comments raised by the Board’s contractor, SC&A, have already been examined and changes for improvement 

have been made or are underway. Other comments are being addressed with 

feedback to the Board.

• The Board has made eight recommendations to the Secretary of HHS. 

SUMMARY

In conclusion, NIOSH has made much progress in carrying out the responsibilities 

of HHS under EEOICPA and looks forward to continuing to improve its performance 

to assist workers who have cancer as a result of exposure to unique hazards in 

building the Nation’s nuclear defense. 

Thank you again for the opportunity to testify. I’m happy to answer any questions 

you may have.

Mr. HOSTETTLER. Thank you, Dr. Howard. 

Dr. Melius. 

25

TESTIMONY OF JAMES MELIUS, M.D., DRPH, ADMINISTRATOR, 

NEW YORK STATE LABORERS HEALTH AND SAFETY TRUST 

FUND, MEMBER OF THE ADVISORY BOARD ON RADIATION 

AND WORKER HEALTH 

Dr. MELIUS. Thank you for inviting me to speak today. Although 

I will not be speaking on behalf of the Advisory Board, I will be 

speaking as a member of that Advisory Board and certainly can reflect the work of the Advisory Board that Dr. Howard described, 

has done as part of this program. 

In your opening statement and others, you pointed out the problem for the many people that worked at these site, the secrecy. 

They were not given complete information about what they worked 

with. I think that’s very important to understand. These people, 

they did this work willingly. They understood the importance of 

this program for their country, but now that that has passed and 

now that there are compensation programs in place for them and 

one that is well-justified by their exposures as well as their sacrifices, I think it’s very important that we maintain a fair program, 

a transparent, open program, that they feel that they are being 

treated fairly at this point in time. And one of the things that we’ve 

worked through the Advisory Board is to ensure that fairness and 

openness—that people see what the reasons are and that we have 

a sound and open process. 

I am extremely concerned by some of the suggested changes. 

That we would lose that openness, that we would lose that perception of fairness, and therefore, lose the whole credibility of this program. 

As Dr. Howard has mentioned, the Advisory Board as established 

under the act are 12 members. We have distinct duties under the 

act that we need to carry out, and really in order to do them, in 

order to do really the volume of work required, we requested an 

outside contractor be hired to assist us. We went to hire that contractor through an open procurement process, a typical Government process, brought on Sanford, Cohen and Associates, and I 

would share with Dr. Howard that they have done an excellent job. 

They provide excellent and outstanding technical and scientific review and really what we would call in the scientific community 

peer review of the many technical documents, the many scientific 

issues that we need to deal with. 

We also pay special attention to conflict of interest issues, both 

for everyone involved in it, the contractor that NIOSH has hired, 

but also for our own contractor (the Board’s contractor), and the 

members of the Board, and we put our contractor through requirements that were much more stringent for some of the other groups 

that were involved in working on this program because we wanted 

to make sure that the claimants were reassured that they were receiving fair and unbiased review of their claims—that whoever was 

checking on them was not being tainted by past work or past associations or whatever, so take the extra step to make sure with that. 

We’ve also used that contractor recently in reviewing the special 

exposure cohort petitions, and NIOSH, as Dr. Howard mentioned, 

produces a report. The Board then has to review this, again a lot 

of technical information that has to be dealt with in doing this, and 

it’s taken time. We’ve paid a lot of attention to this area to make 

26

sure that we are reaching correct recommendations that were then 

passed on to the Secretary of Health and Human Services, and our 

contractor again played a critical role in helping us to do that, 

again an open, transparent process. People petitioning for the special cohort, exposure cohort, are allowed to speak and to present 

their case and really to be part of all the proceedings that take 

place for this. 

After we have gained some experience recently in doing this, especially particularly the initial eight special exposure cohort petitions that we were reviewing, we have sort of stepped back and we 

formed a small work group of the Advisory Board. I chaired that 

Board, and we developed a set of guidelines that we thought would 

improve the efficiency of the review process as well as provide a 

fair assessment and one that we could do in a way that would assure that from petition to petition that we were providing the same 

type of criteria for each petition. (We were treating everybody fairly.) 

That report, I attached to my testimony. It’s been made public. 

We received comments from the public and we’ll continue to do so, 

again, what can we do to improve the process, make it more efficient, but maintain the fairness and openness of this process. 

Recently the Office of Management and Budget have suggested 

a number of changes to the program. You’ve listed those changes 

in your opening remarks. I think it’s important to realize that we 

have a process in place that works. This is a process that was envisioned in the act. It’s open. It provides sound technical peer review 

of these evaluations for special exposure cohort consideration. We 

don’t need to make changes in it. We can improve it in some ways. 

The process really is good. It provides a balanced scientific and 

technical review, and I think to make the changes that have been 

suggested in the OMB document would simply destroy the credibility of this program. We can’t have a secret review process underway. 

Let me end my testimony there. I will be glad to answer questions at the appropriate time. 

[The prepared statement of Dr. Melius follows:]

PREPARED STATEMENT OF JAMES MELIUS

Thank you for the opportunity to testify here today before the Subcommittee on 

Immigration. Border Security, and Claims regarding the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). Over my past twenty-years 

of work in occupational and environmental health, I have considerable experience 

evaluating occupational illness issues at Department of Energy nuclear weapons facilities while working for the National Institute for Occupational Safety and Health 

and later as a member of various review and advisory committees including the Advisory Board on Radiation and Worker Health established under EEOICPA. I appreciate the Subcommittee’s exercising its oversight with regard to this important program. 

I should note that I testify here today as a member of the Advisory Board on Radiation and Worker Health but do not speak on behalf of the Board. However, I can 

address the workings of the Board and its stated positions on various issues relevant to this hearing. 

ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT

EEOCIPA was established to address the work-related cancers and other illnesses 

suffered by the thousands of men and women who helped build and maintain our 

nation’s nuclear weapons starting during World War II and continuing into the 

present time. Especially during the early years of the program, these people worked 

27

under very difficult conditions. They worked under very tight deadlines using new 

manufacturing processes handling very dangerous materials, often with minimal 

protection from exposure to dangerous radioactive elements. They also worked 

under great secrecy, facing severe criminal penalties for any breach of secrecy. Often 

they were given very minimal information about the materials that they worked 

with and the potential health consequences of their exposures. 

I want to emphasize that these people worked under these conditions willingly, 

knowing the critical importance of their work to our nation’s security. However, 

many of these people and their families are now angry that this past secrecy and 

those difficult working conditions have not been acknowledged and have been used 

to deny their past claims for work-related illnesses. The credibility of the EEOICPA 

program to these people is very dependent on the fairness and transparency of the 

program’s procedures. 

As a consequence of this work, these workers are at increased risk of developing 

cancer and other occupational illnesses. Because information on the exposures and 

the consequent health risks were hidden from these workers for so many years, 

Congress established the Energy Employees Occupational Illness Program in 2000 

to provide some compensation to these workers and their survivors for their workrelated health problems. In doing so, Congress recognized that attempting to provide fair and equitable compensation for people working at these facilities for the 

past 50 years or more was difficult and, in many cases, would not fully compensate 

these people or their families for their suffering and sacrifice for our country. 

The part of the Act under consideration at this hearing involves compensation for 

people with work-related cancer due to radiation exposures. The program as established in EEOICPA and implemented through the Department of Labor and the National Institute for Occupational Safety and Health (NIOSH) attempts to evaluate 

the past radiation exposures for the claimants at nuclear weapons facilities and 

then calculates the probability that their cancer was caused by exposures at the facility(s). 

NIOSH’s major task under this part of EEOICPA is to obtain past monitoring 

records for the claimant along with other technical information on the facility(s) 

where they worked that would help to estimate the claimant’s exposure. NIOSH 

then utilizes this information to estimate the cumulative radiation exposure for that 

individual. This is a complex task requiring review of many different sources of 

records and other information. A claimant may have had exposure to many different 

radioactive elements and have been exposed in many different manners. The monitoring records may extend back over 50 years and reflect time periods when monitoring methods were less precise than today. NIOSH has had to develop new procedures and correction factors to appropriately estimate these past exposures. 

If a ‘‘reasonable’’ estimate of a claimant’s exposure can be made, the probability 

that a claimant’s cancer was due to this exposure is estimated. This procedure (established by the EEOICPA) utilizes a mathematical model developed by the National Cancer Institute and modified by NIOSH for use in this compensation program. The model is based on cancer studies of people exposed to radiation whose 

health status was traced for many years (mainly those exposed from the atomic 

weapon explosions in Japan during World War II). The procedure established under 

EEOICPA takes into account the risk that the claimant’s particular cancer could be 

caused by their radiation exposures as well as the precision of that estimate (i.e., 

the possible error in the estimate due to the limitations of the health and exposure 

data). NIOSH then provides these data to the Department of Labor who performs 

the final calculations for the purposes of accepting or denying the cancer claim. 

SPECIAL EXPOSURE COHORT

In establishing this program, Congress recognized that there would be circumstances where dose reconstruction would not be feasible due to the lack of adequate information on the claimant’s exposure at the nuclear weapons facilities. Exposure records may not be available. The claimant may not have had their exposure 

to a particular radioactive material monitored during that time period. A method 

for measuring that particular exposure may not have been available at that time. 

Rather than requiring the claimant to somehow prove that they had sufficient exposures to warrant compensation (an almost impossible task given the length of time 

involved and the secrecy in place at the facilities), Congress established the Special 

Exposure Cohort. 

The Special Exposure Cohort provides compensation for claimants with 22 specified cancers who worked at certain facilities for a specified length of time. Congress 

established four such groups in the legislation and gave the Department of Health 

and Human Services the power to add additional groups. Individuals or groups repVerDate 0ct 09 2002 10:20 Aug 02, 2006 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\030106\26290.000 HJUD1 PsN: 26290
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resenting claimants or potential claimants can petition NIOSH requesting that a 

specific group be added to the Special Exposure Cohort. If the petition is deemed 

valid by NIOSH, NIOSH then evaluates the merits of the petition and presents a 

report to the Advisory Board regarding the merits of adding the group to the Special 

Exposure Cohort. The Act provides that a new group may be added to the Special 

Exposure Cohort when the ‘‘it is not feasible to estimate the dose that they received 

with sufficient accuracy’’ and if their health was endangered as a result of their exposures. The Board then reviews the NIOSH evaluation report and makes an independent recommendation to the Secretary of HHS regarding the petition. 

ADVISORY BOARD ON RADIATION AND WORKER HEALTH

The Advisory Board on Radiation and Worker Health was established under 

EEOICPA to review the regulations establishing the methods to be used in the dose 

reconstruction effort and Special Exposure Cohort evaluations; to review the scientific validity and quality of the dose reconstruction effort; and to review the additional groups proposed for inclusion in the Special Exposure Cohort (described 

above). The Board is required to represent ‘‘a balance of scientific, medical, and 

worker perspectives’’. 

The Board is appointed by the President. The Board has had up to thirteen members. One resigned due to a conflict of interest, and another died. Recently, two 

members were dismissed from the Board, and three new members were added. The 

current Board represents diverse view points including people who formerly worked 

for the Department of Energy or their nuclear facility contractors as well as union 

representatives from DOE nuclear facilities. This balance of diverse perspectives 

helps to ensure that the Board’s deliberations are thorough and that different views 

on issues are discussed. 

The Board meets approximately four or five times per year with most meetings 

lasting three days. Public meetings by conference call take place between meetings. 

In addition, work groups set up by the Board also meet by phone or in person between meetings. Most of these work group meetings are open to parties involved in 

the facility under consideration. Transcripts of these Work Group meetings are also 

made and posted on the NIOSH OCAS website. 

Given the considerable workload required by the Act to review the dose reconstruction program, the Advisory Board has obtained the services of a technical contractor (Sanford Cohen and Associates) to assist in the technical review of dose reconstructions, related technical procedure documents, and the special cohort evaluation technical documents. This contractor was selected through a full and open government procurement process. The contractor provides a number of highly qualified 

technical specialists to assist the Board and has greatly facilitated the work of the 

Board. 

Working with the contractor, the Board has established a program for reviewing 

dose reconstructions for a sample of individual claims and the NIOSH procedures 

and developed technical documents that provide the basis for NIOSH’s dose reconstruction program. The Board’s contractor conducts its review under the direction 

of the Board and the contractor’s technical review is presented to the Board for discussion before being finalized and transmitted to the Secretary of HHS. The procedures used by the contractor for its audit were established and approved by the 

Board. After the initial review of cases, procedures, and/or documents by the contractor, the Board has established a standard process to ensure that NIOSH has the 

opportunity to review and comment on the contractor’s review before the Board finalizes our comments to the Secretary. The review covers a wide range of technical 

issues related to individual dose reconstruction to ensure that the dose reconstructions are being done in a scientifically sound and balanced manner. 

The Board has paid special attention to issues of potential conflict of interest 

among all groups working on this program. Given the concern of the people who 

worked at these facilities about ensuring that the compensation program is handled 

in a fair and impartial manner, strong conflict of interest provisions are necessary 

to ensure the credibility of the program. In selecting a contractor for assisting the 

Board, specific conflict of interest requirements were included in the review and operation of this contract. Conflict of interest information for our contractor and for 

Board members are available to the public through the NIOSH website for this program. 

THE ADVISORY BOARD AND SPECIAL EXPOSURE COHORT REVIEWS

The Advisory Board has reviewed approximately 8 new special exposure cohort 

groups (NIOSH has sometimes combined petitions or split proposed groups into different time periods). Seven have been approved, and one denied by the Board. SevVerDate 0ct 09 2002 10:20 Aug 02, 2006 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\030106\26290.000 HJUD1 PsN: 26290
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eral are pending including one that was reviewed at a recent Board meeting and 

then deferred pending the receipt of further information from NIOSH (Pacific Proving Ground). 

All of these petitions have involved the early years of nuclear weapons production 

when monitoring data were sparse. In some cases, NIOSH’s recommendation has 

been followed, while in others the Board’s recommendation has differed from that 

of NIOSH. In some cases, the discussion of the petition has stretched over several 

Board meetings. In nearly, all cases the Board’s vote on our recommendation has 

been close to unanimous despite the diversity of viewpoints on the Board. 

The Board has worked with NIOSH to establish a sound and thorough independent technical and scientific review of the NIOSH evaluation of the special exposure cohort petition. I believe that this is what is envisioned under EEOICPA. The 

Board’s contractor has done substantial work to review relevant scientific and technical documents and data, and there has been a thorough discussion of the scientific 

issues at the meetings. The petitioners have had good access to the review process 

and a fair opportunity to provide their input. 

Recently, the Board has worked with NIOSH to improve the process. Late last 

year, the Board established a working group of four Board members that I chaired 

to review our procedures for evaluating Special Exposure Cohort petitions and evaluations. The Working Group held a meeting in November 2005 with NIOSH staff 

participating to develop draft guidelines for our review. Draft guidelines were developed, and this document was reviewed by other Board members and by NIOSH and 

made available to the public for review and comment. After some revisions based 

on comments from Board members, the draft guidelines were discussed at our January Board meeting. The Board voted to adopt the guidelines with the understanding 

that they could be modified at a later time based on additional comments received 

from outside parties. I have attached a copy of the guidelines with my testimony. 

These guidelines provide a framework for the Board’s review of Special Exposure 

Cohort petitions and NIOSH’s evaluation of those petitions. The guidelines provide 

general criteria for evaluating information that might be used for dose reconstruction to determine whether or not that information provides a basis for adequate 

dose reconstruction (i.e., ‘‘feasible to estimate the dose that they received with sufficient accuracy’’). The Board believes that the guidelines will help to make the Special Exposure Cohort process more efficient, more timely, and provide a fair process 

for all groups seeking that status. The Advisory Board has also established a specific role for our contractor to assist in the review of Special Exposure Cohort actions. 

My understanding is that the Department of Labor and the Office of Management 

and Budget have suggested some actions to address a perception that the current 

Special Exposure Cohort process is not working adequately. On the contrary, I believe that the current procedures provide what was called for in the EEOICPA legislation. First, the process is open to the public and to input from the public. Failure 

to ensure this level of transparency would severely damage the credibility of the 

program. Secondly, the process provides for sound scientific and technical review of 

any SEC recommendation by an independent advisory board with the assistance of 

a contractor with relevant scientific and technical expertise. This review process is 

similar to the scientific peer review programs in place for other government programs that are based on scientific and technical information. Thirdly, the recent 

changes to the process in accordance with the working group report should help to 

facilitate a more timely review process and, at the same, time one that ensures consistency and fairness in SEC recommendations. 

In summary, I believe that the Advisory Board with the assistance of our technical contractor is providing sound and fair independent reviews of groups proposed 

for inclusion in the Special Exposure Cohort as required by the EEOICPA legislation. I would be glad to answer any questions that you may have.

Mr. HOSTETTLER. Thank you, Dr. Melius. 

Mr. Miller. 

TESTIMONY OF RICHARD D. MILLER, SENIOR POLICY 

ANALYST, GOVERNMENT ACCOUNTABILITY PROJECT 

Mr. MILLER. Thank you, Mr. Chairman. 

My name is Richard Miller. I’m a Senior Policy Analyst for the 

Government Accountability Project. Among its functions, GAP oversees agencies implementing the Energy Employees Compensation 

Program and serves as an information hub for claimants, Congress, 

30

and the media. I have been privileged to work on the bipartisan effort that led to the enactment of this landmark legislation in 2000, 

which included testifying before this Subcommittee in September of 

2000. We appreciate the opportunity to testify again before the 

Subcommittee and commend the Chairman of the Subcommittee 

for using the Committee’s jurisdiction to conduct oversight hearings. 

Congressional investigations an numerous oversight reports have 

documented that radiation dose records of the Department of Energy and its vendors were, as you have stated earlier, nonexistent, 

incomplete, or unreliable. My written statement lists three examples in Nevada, Iowa, and Kentucky, but there are many more. In 

cases where there is inadequate monitoring, Congress wanted to 

ensure that nuclear weapons workers with cancer would not face 

an insurmountable burden of proof when they filed a claim. Congress put in place a relief valve that when it is not feasible to estimate dose with sufficient accuracy and there is a reasonable likelihood that the class of workers may have been endangered from radiation exposure. They have a remedy, and that is to be designated 

as a member of the special exposure cohort. 

There is a four-step process for evaluating these special exposure 

cohorts —with built-in checks and balances to ensure that all viewpoints are heard and that each SEC designation is scientifically 

credible. The Secretary of HHS, as you have heard, makes the final 

decision after receiving a recommendation from the Advisory 

Board. 

While there are six special exposure cohorts that have been approved to date, HHS has denied two and disqualified nearly 20 at 

its earliest stages of review, and the inference in the OMB passback document that these are being handed out like candy simply 

is not supported by the record. We have seen in particular wellmerited approvals at Mallinckrodt in St. Louis, at the Iowa Army 

Ammunition Plant in Burlington, Iowa, at Linde in Tonowanda, 

New York, and for the Y-12 Calutron workers in Oak Ridge, Tennessee. 

Today my testimony will primarily focus on the pass-back memo 

which outlines five options to reduce the number of SECs approved 

by the Secretary of HHS in order to, quote, contain the growth in 

benefit costs. OMB has proposed four actions in a document which, 

I note, was not included in the President’s budget request. That 

came to light independently and separately, which if adopted constitute a direct attack on the checks and balances set forth in the 

law: One, by requiring the Secretary to secure through the Administration or White House-led task force before making any approvals; by addressing this so-called, ‘‘imbalance,’’ in the Advisory 

Board; by adding yet another outside review on top of the Advisory 

Board’s review; and by imposing unspecified constraints, quote-unquote, on the Advisory Board’s audit contractor. 

These administrative changes if implemented in whole or in part 

will undermine the credibility of benefit determinations. By requiring Administration clearance, the OMB memo implies a lack of 

trust in the Secretary of HHS’s decisions. Administration clearance—and I want to be very clear on this point. Administration 

clearance is not merely an innocent call for improved communicaVerDate 0ct 09 2002 10:20 Aug 02, 2006 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\030106\26290.000 HJUD1 PsN: 26290
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tions as we have heard from OMB and other witnesses here today. 

This is not about drawing sharper boundaries about SECs in order 

to more precisely adjudicate claims. It is a plan for preempting the 

legal authority and the professional judgment of the Secretary and 

the Advisory Board. The term ‘‘imbalance’’ and ‘‘constraints’’ that 

are discussed in this OMB memo must be defined. Frankly, the 

memo committed the error of candor by using those words. 

It appears that the OMB considers the advice provided by the 

President’s Advisory Board and even perhaps its audit contractor 

as not trustworthy and that absent Administration intervention, 

unwarranted benefits are going to be paid out through special exposure cohorts, and yet, as we have heard, the Advisory Board is 

required by law to have a balance of medical, scientific, and worker 

perspectives and as well there has to be a balance proscribed under 

the Federal Advisory Committee Act. 

It’s with that in mind that we note that two members of the Advisory Board were removed without cause in January of 2006, and 

three members were appointed, including two with potential conflicts of interest. That too is troubling. 

Given the OMB’s goal of reducing special group cohort approvals 

as a way to cut benefit costs, the call to address any imbalances 

in the Advisory Board looks like a prescription to add new Board 

members with a philosophical tilt against special cohorts. Indeed, 

the Office of Management and Budget memo commends the Employment Standards Administration within the Labor Department 

for bringing concerns about SEC benefits costs to the attention of 

OMB. DOL’s fingerprints on this OMB memo has regrettably 

stained its reputation as a dispassionate claims adjudicator. 

The Energy Employee Compensation Act was an apology for putting defense nuclear workers in harm’s way and not adequately 

protecting them, and in turn these workers expect that the Government will honor its commitment to provide fair compensation decisions. Yet this OMB memo suggests that they, the Administration, 

are intent on dishonoring this commitment. It rubs salt in the 

wounds of these patriotic Cold War workers to hear that the goal 

is to constrain benefit costs. 

There are six new special exposure cohort petitions currently 

under evaluation, and this pass-back memo hangs ominously over 

these and future SEC evaluations. If HHS is directed to deny SECs 

as a way to reduce benefits costs, even though there are inadequate 

records to make a fair compensation decision, then these workers 

and their families have every reason to be cynical. 

In conclusion, unless the OMB’s options outlined in this passback memo are disavowed at the highest levels of the Administration, these Cold War veterans can justifiably question whether each 

SEC denial is a product of OMB budget-cutting and political meddling rather than a scientifically-credible decision. It is imperative 

that we restore the program’s credibility. 

I thank you for your time. 

[The prepared statement of Mr. Miller follows:]

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PREPARED STATEMENT OF RICHARD D. MILLER


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Mr. HOSTETTLER. Thank you, Mr. Miller. 

At this time, we will move to questions from the Subcommittee. 

First of all, Mr. Hallmark, I’d like to ask you about the issue of 

balance. Do you believe that the Advisory Board is unbalanced? According to the OMB memo, there is a desire for there to be balance 

on the Advisory Board, and what type of balance would be required 

to assist in what the OMB seems to say should be the mission of 

containing costs for the program? 

Mr. HALLMARK. Well, Mr. Chairman, as I said, cost containment 

is not part of any strategy or involvement that the Department of 

Labor has had in this process. I would say, however, that the 

Board is a balanced FACA committee in the sense that it’s representing different groups involved in the activity; however, from 

our perspective, we have seen indications, especially in terms of the 

presentations of the Board’s contractor, of a not complete adherence to the instructions given by Congress to the Board, that is, 

that the Congress gave the Board the responsibility to evaluate the 

‘‘scientific validity and quality’’ of dose reconstruction activities. 

It appears from our hearing and reading of the activities of the 

Board and the contractor that the criterion has been shifted to be 

one of ‘‘can dose reconstructions become more overestimated than 

they started out to be.’’ To back up a little bit, the statute rightly 

and NIOSH I think correctly makes every effort to give the benefit 

of the doubt to the worker and to provide where estimation ranges 

are open, to provide as much overestimation as is appropriate to 

make sure that the individual is getting a fair shake and that obstacles are removed. That’s the baseline. 

The discussion that has occurred in the Board and especially 

from the contractor has been almost exclusively focused on whether 

or not further examples or further additions of overestimation can 

be added to that process. There has been almost no discussion 

about whether any of the dose reconstructions under review are, in 

fact, overestimates beyond plausibility that yield an outcome that 

is not what was intended by Congress. 

That’s the balance issue that I would say needs to be addressed 

with respect to the Board. 

Mr. HOSTETTLER. I appreciate the fact that you point out that 

cost containment was not something that the law called for and 

that DOL does not recognize that, but it’s my understanding that 

the pass-back memo actually commends a DOL employee for potentially large expansion of the benefits due to special exposure cohorts. Who at the Department at Labor would have suggested the 

impetus for the OMB pass-back memo regarding the expansion of 

benefits and the cost containment? Because either the Department 

of Labor was not thinking about that issue or they were asked by 

OMB, but somehow OMB took what DOL gave them and created 

a discussion memo talking about containing costs. 

Who at DOL gave that input to OMB? 

Mr. HALLMARK. Well, I am the face of DOL with regard to this 

program with respect to the interfaces with NIOSH, the Department of Energy, OMB, and others. So if there’s a party who is involved in those kind of discussions, and as I said, the Department 

of Labor believes close coordination and discussion is appropriate 

in this multi-department entity and we have pursued that. It 

50

wouldn’t be appropriate for me to discuss the internal discussions 

about budget, which are always outside of the general discussion, 

but that’s part of my role. 

Mr. HOSTETTLER. All right. Thank you. 

Dr. Howard, what do you make of the five options that are listed 

in the OMB document? OMD’s suggestion that, first of all, the 

SEC, special exposure cohort, designation should be okayed by the 

Administration as opposed to the Secretary of HHS would tend to 

inform us that somebody at OMB or the Administration does not 

trust the Secretary to make this determination. I don’t want to put 

words in your mouth, but that’s kind of what it looks like at its 

surface. 

Is there some reason for us to believe that? 

Dr. HOWARD. I don’t think so, Mr. Chairman. We’re very proud 

of our Secretary, Secretary Michael Leavitt, and he does an excellent job with understanding our program and receiving our information that comes to us through this process that we start out 

with the petitioner, our evaluation, the Board presentation, the 

Board deliberation, their contractor’s review, their vote, and finally 

it goes through me to the Secretary. 

I think it’s fair to say that in terms of the balances issue, one 

could say that balance, like beauty, is sometimes in the eye of the 

beholder, and we try very hard at NIOSH as the primary source 

to receive nominations that eventually work their way through our 

department to the White House that makes the final decision about 

individuals. That’s an open process. We invite anyone who has a 

nominee that fits in to these three categories that are statutorily 

based—the medical, scientific, and worker perspectives—invite 

them to give us those names and to vet them and bring them 

through the process. 

So we think, as Dr. Melius mentioned, even to the point of nomination of members to the Board, we want to be as transparent as 

possible. 

Despite having those folks in those capacities, when you get on 

Board, as we all are, we’re biased in various ways, and I think Mr. 

Miller referred to conflict of interest issues. We’re trying to have 

the state-of-the-art conflict of interest for us, for our contractors, 

for the Board members. So we hope that despite whatever biases 

members bring to the Board, that they work hard on these very difficult scientific issues, and for the last 4 years that I’ve been in this 

program, I really have to applaud each of them for doing that. They 

spend countless hours going through extremely technical material, 

and I think they are personally very assiduously aware of their 

own biases and controlling that and looking at the science. 

So I would say that we’re trying very hard to achieve balance in 

every way possible. 

Mr. HOSTETTLER. Have you been informed, has NIOSH or the department been informed, in general of this notion of a two-track approval of SEC designation? 

Dr. HOWARD. Well, we are aware of that language. I would just 

say from the transactional process point of view, we have some 

very stringent statutory time lines that we honor, we try to honor 

in every way possible. We’re not perfect in that, but we certainly 

try very hard. I don’t see how there is room time-wise for any other 

51

kind of review, even if such a review was thought to be in the best 

interest of the Government. It’s a very tight process. So I don’t see 

how it’s practicable. 

Mr. HOSTETTLER. Thank you. I agree, Dr. Howard. 

Then one more question. My clock hasn’t been up, and so we will 

officially designate my time as 5 minutes. 

Dr. Melius, you referred to the OMB document as creating 

changes in the program, and do you believe that the document actually creates substantive changes in the program if the document 

is enforced, executed, if the provisions of the document are enforced? 

Dr. MELIUS. It certainly would, because it would change the 

whole process of the program, would make large parts of the process closed because it would be done within the Administration, not 

as part of an open review process, and as well as—you know, 

again, it’s hard to tell what’s meant by balance of the Board, but 

one would then also change the Board. So the whole workings of 

the program be changed, but particularly the lack of transparency 

to the process for what I see to be very little gain. I mean, we have 

I think a strong peer review. We continue to work to make it 

stronger, a scientific review. As I said, we have an excellent contractor as well as Board members, and I think it’s important to 

clarify our contractor doesn’t tell us what to do. We tell the contractor what to do. 

The reviews that they do are under our direction. The reports 

that are submitted to the Secretary and the final recommendations 

are made by the Board members, not by our contractor. We asked 

our contractor to look at issues such as the benefit of the doubt or 

claimant favorability. That was one of the criteria they are supposed to look at in doing the reviews. So we have in essence tried 

to have a full and open review process, and I think the proposed 

changes would just change that so drastically. As I said in my testimony, I think it would very seriously undermine the whole credibility of the program, which is critical. 

Mr. HOSTETTLER. Thank you, Dr. Melius. 

The Chair recognizes the gentlelady from the Texas, Ms. Jackson, for questions. 

Ms. JACKSON LEE. Thank you again, Mr. Chairman, and again 

I offer my appreciation. 

Let me say to the witnesses that I found your testimony to a one 

very instructive. Forgive me if I have to leave after this first line 

of questioning inasmuch as another Committee will be having a 

classified briefing in a few minutes, and so I will have to depart. 

I know that we’ll have a follow-up meeting and hearing where 

other officials will provide information as well. 

Let me ask, Mr. Hallmark, is the Department of Labor attempting to cut the benefits of these potential victims? 

Mr. HALLMARK. No, we are not. As I said in my comments earlier, Ms. Jackson Lee, the department’s interest is to make sure 

that the program is, in fact, fair and consistent. The benefits that 

we pay are mandatory entitlement benefits. They are adjudicated 

case by case, and the Treasury fills our funding to make sure that 

the moneys are there to pay whatever cases we approve. 

52

We’re not in business of trying to change the outcome in that respect, nor do we have particular views of a particular class being 

included or not included as an SEC. 

Ms. JACKSON LEE. In the course of attempting to, and I put this 

in quotes, fix the Advisory Board or fix the problem, did OMB engage the Department of Labor in your assessment of the program 

or your assessment of their potential changes? Did you have discussions with OMB? 

Mr. HALLMARK. As I said earlier, the discussions within the 

realm of putting together the President’s budget are not open to 

the public, obviously, but we do talk about costs and streams of 

benefits and projections and so on as a normal discussion that goes 

on back and forth between Federal agencies and OMB each year. 

Ms. JACKSON LEE. Well, would you have made recommendations 

for this program to be cut? 

Mr. HALLMARK. No. Are you referring, perhaps, to the projections 

in the 2007 budget? 

Ms. JACKSON LEE. I am and the fact that the program is perceived as being costly and that some of the procedural changes that 

OMB may be offering go more to saving money than to the substance of the program. So in the course of having to report on your 

budget, would DOL have inadvertently recommended that this program be cut? 

Mr. HALLMARK. No, not at all. 

Ms. JACKSON LEE. Inadvertently or advertently. 

Mr. HALLMARK. No. I don’t think that happened at all. The issue 

is with respect to projected budget outlays that are in the President’s 2007 budget. These are estimates that we make based on 

our experience with the program to date and our understanding of 

the flow of cases through the pipeline. There is a reduction between 

2007 and 2006 because we estimated a large increase in 2006, over 

$1.5 billion being paid out this year with a reduction back to a 

more normal level in 2007. That had nothing to do with any assumption of changes to the program or policy implications at all. 

It was strictly based on our best understanding of how cases would 

be adjudicated in that time period. 

Ms. JACKSON LEE. So there was no advocacy on your part to 

eliminate and/or downsize the program? 

Mr. HALLMARK. Not at all, no. As I said, we want to see this program work as it was intended by Congress to work, and that’s been 

our goal right from the beginning. 

Ms. JACKSON LEE. Thank you. 

Dr. Melius, thank you for your presentation. You are a Board 

member at this point. What is your tenure, sir? When were you appointed? 

Dr. MELIUS. I was appointed as part of the original Board. So I 

think we started meeting in 2002. 

Ms. JACKSON LEE. And do you have a sense of when your term 

ends? 

Dr. MELIUS. My term is actually up, I believe. There have been 

delays in—we’re continuing to serve. There are delays in the process, and we will see what happens. I don’t know what will happen. 

Ms. JACKSON LEE. And the Board is comprised of how many 

members? 

53

Dr. MELIUS. Currently, 12 members, and with the three additional members, I believe that brings us up to 13. 

Ms. JACKSON LEE. And are they all filled at this point? 

Dr. MELIUS. They are all filled. We have three new Board members that have—as I mentioned before, two of the Board members 

were dismissed that had served really since the beginning, essentially, and then three new Board members were added. Those 

Board members will officially start serving at our next meeting, I 

believe, in April. 

Ms. JACKSON LEE. Obviously you may not be able to speak to the 

new Board members, but the distinguished members who served, 

were they competent and concerned about the program to your understanding or maybe what you saw of their work? 

Dr. MELIUS. Yes. They’ve all spent a lot of hours, a lot of time 

devoted to this program. They represent—it’s a diverse group. We 

represent a range of backgrounds, a range of views on a number 

of issues. We have struggled and had disagreements on certain 

issues, and we have worked very hard to try to reach consensus. 

I think most of our votes on issues, such as SEC recommendations, 

have been not unanimous, but close to unanimous. We work hard 

to reach agreement, to reach a complete understanding of the 

issues and so forth. We all have different backgrounds. I think 

that’s helpful to the process. 

Ms. JACKSON LEE. You have offered some very important testimony. 

Mr. Chairman, I hope that we take note of Dr. Melius, who I understand is an M.D. and a Ph.D. and seems to be competent to me, 

and we should track whether or not after he leaves this room today 

he gets a very open-ended letter thanking him for his service. I will 

be outraged and I would like us to be collectively outraged, and I 

would like to insist upon his ability to continue his work. The fact 

that he has extended himself to come to this hearing should be 

noted. 

Dr. Melius, you mentioned secrecy, and obviously that’s not what 

we went intend to do with the Advisory Board, but on the other 

hand seeks to ensure fairness. The outside contractor was to add 

to that fairness and transparency. So, in essence, what could we 

possibly be fixing with the new options that seem to now being recommended? And let me share them with you: requiring the Administration clearance for all special exposure cohort designations, requiring an expedited review to outside experts, addressing any imbalance in membership of the President’s Advisory Board on Radiation Worker Health, and imposing constraints on the Advisory 

Board’s audit contractor. 

What help does that give the decision-making and the ability for 

petitions or claimants to be heard? 

Dr. MELIUS. As I said in my testimony, I think we have a good 

sound process in place. The changes proposed, I do not think will 

add significantly to that. As Dr. Howard has pointed out, the only 

thing that some of those changes would add would be more time, 

and we already have a significant problem with this program, people waiting many years for their claims to be reviewed and adjudicated. We don’t need to add that to the special exposure cohort 

process. 

54

So I can see no significant benefit to the proposed changes and 

I can see losses in terms of time and timeliness and losses in terms 

of credibility by not maintaining an open and transparent process. 

Ms. JACKSON LEE. In the work that you do, is your work paperwork, or do you actually get to see the claimants? 

Dr. MELIUS. Our Advisory Board holds meetings. Dr. Howard 

was warning me. We actually have to be careful not to interact too 

much on specific claims. 

Ms. JACKSON LEE. I understand. 

Dr. MELIUS. Because of legal issues that are beyond me, but they 

are real. However, we do hold all of our Advisory Board meetings, 

nearly all of them at sites that are near the Department of Energy 

sites. We have public meetings usually in the evening so it’s more 

convenient for people. So we hear from many of the claimants and 

their families in that general session. 

Ms. JACKSON LEE. And that’s where I’m going. In the course of 

hearing from individuals, can you say that you have heard some 

very powerful stories, some very devastating stories, that most of 

what you’ve heard would err on the side of overwhelming as opposed to frivolous? 

Dr. MELIUS. Oh, absolutely. These are not frivolous claims. These 

are people with cancer. Often we’ve had people come before our 

Board who are literally dying of cancer and are obviously frustrated by the delays in adjudicating their claims. We also have survivor family members with some very heart-wrenching stories 

about what their father did in working at the facility and with 

their frustration at not being able to have some of that information 

understood or not understanding why it takes so long for their 

claims to be adjudicated, but these are all people that, again, who 

worked so hard and sacrificed so much for our country. 

I’ve spent 20 years working around these sites with doing studies 

and meeting with people, and people are all so dedicated and work 

so hard and again are just so frustrated by the secrecy, the denial, 

the initial denial that there was any problem, very happy that Congress recognized that something needed to be done, that they deserved compensation with this program, and some continued frustration with the fact that it takes time, that it’s such a complicated 

and difficult program, and I think we need to keep that in mind 

as we work on this program and certainly in anything we do to try 

the fix this program. 

Ms. JACKSON LEE. I’d like to thank you very much. 

If the Chairman would indulge me just to pose a question to Mr. 

Miller since he was so intimately involved in the constructing of 

this process, Mr. Miller, you mostly likely have been engaged in, 

I guess, partly the writing or the necessity of this legislation. One, 

do you have any knowledge of whether there’s any whistle-blower 

protection for the Board or advisory members? Would that be a 

worthy addition? Do you know of the number of former representatives of unions that may be on the Board? And then, lastly, would 

you just comment for me your view as to whether or not the 

layering that seems to be offered by OMB is more stifling and stymieing the work of the Advisory Board or does it help the claimant 

in terms of making his or her case? 

55

Mr. MILLER. Let me answer your questions, if I may, in reverse 

order. 

First, I’d just like to point out that the OMB pass-back memo is, 

in fact, part of the deliberative process that Mr. Hallmark was 

talking about and was not made public, and had it not been made 

public, we would not know that this was the real hidden hand influencing who is on the Board, what happened to the audit contractor, and that the White House was second-guessing these decisions. So I’m very pleased, at least, that you held this hearing to 

air this out. 

I think the problems are fairly straightforward. If the Government is going to stack the deck by dictating to HHS that they must 

deny special cohorts as a way to save money, then the credibility 

of the program crumbles. Period. It’s not a science-driven process. 

It’s a budget-driven process, and what Mr. Hallmark said here, 

frankly, is that the Department of Labor is very concerned about 

this becoming a budget-driven process, and while they may profess 

that it is not, his fingerprints or that of his colleagues are all over 

this document. 

So I’m concerned that we have a process where scientificallycredible decisions are going to be subordinated to White House demands for budget cost constraints, and I think at the end OMB 

may have already started to play their hand in this process, as 

we’ve seen with the recent Board changes. 

Secondly, with respect to the question of whistle-blower status 

for Board members, you point out that perhaps Dr. Melius took 

some courage to appear here today since his tenure is up, as is it 

for three other members and that the question of, ‘‘balance’’ as implied at least in this memo is that they need a balance of people 

who are going to put their elbow on the scale to deny benefits. The 

balance that I would hope the Board would have would be a six to 

six balance, which we have had over the previous three or 4 years, 

and in a genuinely balanced situation—and I have been to 32 of 

34 open Board meetings—what we witness is a debate going on 

amongst the various perspectives and viewpoints and expertise 

that actually forces consensus decisions. If one side dominates over 

the other, you rubber stamp decisions or you allow people’s biases 

to run amuck. It is my concern that the two Board members that 

were dismissed without cause and replaced with three new members may, in fact, affect that balance going forward. 

Whether Advisory Board members need whistle-blower protection 

is a good question. I think everyone deserves and should have 

whistle-blower protection, particularly those who come to Congress 

and express their views and concerns. I believe there’s a bill called 

the Paul Revere Act which specifically addresses that point. 

Having said that, I would hope that you all would continue your 

vigilance with respect to what happens to the Board members as 

we go forward, and I very much appreciate it. Chills went up my 

spine when I noted that you picked up on the risk and exposure 

that these Board members have. 

Thank you. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

Might I just say that as I depart, I know there are other questions, that with all of our work that we have to do with the raging 

56

debate on immigration, I can’t imagine that this is no less important, and I hope we’ll follow this through to very end. 

And I yield back. Thank you. 

Mr. HOSTETTLER. Thank you. The Chair recognizes the gentleman from California for questions. 

Mr. GALLEGLY. I thank for the Chairman for yielding, and I 

won’t take my full 5 minutes because I know the witnesses probably wouldn’t appreciate an hour and 20 minutes of my questions. 

In any event, I’d just like to preface my remarks. I’m sure some 

of you are aware that I have represented the folks in the 21st, the 

23rd, and the 24th Congressional District over the past 20 years 

which takes in the Santa Susana site, better known by many as 

Rockadine. In fact, my home has been within just a few miles of 

that site for the last 40 years. 

I’d like to pose a question to both or either or Dr. Howard or Mr. 

Hallmark going back to my opening statement. In fact, I made reference to the fact that this site study or side profile or the threshold studies had not been completed yet. Some of these claims, the 

31 specifically had been returned from NIOSH with instructions, 

and I do understand. The two questions I have, number one, is it 

is my understanding that as of two o’clock this afternoon, the study 

was reported out on the web site after we had sent many letters 

and made many phone calls, and I found it interesting that it was 

posted at two o’clock this afternoon, yet it was dated February 

22nd. Now, I know it takes a long time to get through that little 

wire, and I’m not really totally computer literate, but it seems like 

even the mail service is faster than that. 

So in any event, maybe you can explain that little detail, but 

more importantly than that is the issue of how you can explain 31 

claims being sent back with instructions before you had a study to 

refer to. Either Mr. Hallmark or Dr. Howard. 

Dr. HOWARD. I guess I’m being volunteered to start, and I may 

have to get back to you on the record on the details of this, sir, but 

as I understand it, in terms of the claims that we had at NIOSH 

that were pulled, the issue was over the eligibility of the claimants. 

My understanding is that the site is quite large. Portion of it are 

covered. Portions of it are not covered. And it was not a data access 

problem. I’ve been told that the site contact that we have for data 

is excellent and quite capable and is giving us any data that we 

require to do individual dose reconstructions. 

That’s my understanding right now, the information that I have 

with regard to this. Which portions of the site is covered, where the 

cases that we have, the employees that we have, which part of the 

site did they work at in terms of being eligible or not eligible, those 

are the issues that I think NIOSH was dealing with, and since 

those are not issues that we determine, those are more eligibility 

issues between DOE and DOL. That’s my understanding. 

Mr. GALLEGLY. For the record then, just so I understand, the 31 

claims that had been returned, the threshold studies or the site 

profile would have been irrelevant for those specific 31 cases. 

Dr. HOWARD. I don’t think we got to the science issues in those 

cases. We were still at the eligibility issues. 

Mr. HALLMARK. John, if I can interrupt, I think it is possible and 

does happen often that even if the site profiles have not all been 

57

completed at a given site, there are some cases which on their face 

can be addressed without that further documentation. In other 

words, the case may be clearly compensable or clearly not compensable. 

Mr. GALLEGLY. Can you say specifically for the record that was 

the case in these 31 cases? 

Mr. HALLMARK. I cannot say that for the record today. 

Mr. GALLEGLY. I would appreciate, Mr. Chairman, if we could 

make the request that the Committee direct DOL to get us a formal response on that, because I think it’s a very legitimate question. 

Mr. HALLMARK. It’s a very legitimate question. 

Mr. GALLEGLY. And it’s hard for me as a layperson to comprehend how you can make a final determination on something as 

important as this without the information necessary to make the 

adjudication, and so from a layman’s standpoint, I ask that question, but that’s one of the purposes of us being up here, to ask 

those type of questions. 

Mr. Hallmark, I know that my friend from Houston, Ms. Jackson 

Lee, made a reference to the funding and the differential between 

’06 and ’07. 

Mr. HALLMARK. Yes. 

Mr. GALLEGLY. And yet I’m still having a little problem with 

that, and maybe you can help me, because of the 434 cases that 

I’m aware of, only 10 have actually received any form of compensation through EEOICPA. I guess that’s the way some pronounce it. 

In any event, you know what I mean. 

Mr. HALLMARK. Yes. 

Mr. GALLEGLY. If only 10 of 434 have received compensation, it’s 

hard for me to understand why the budget is being cut in the future, through the next year from the present year, when you have 

basically maybe 5 percent, if that, and 95 percent that haven’t been 

adjudicated. 

Mr. HALLMARK. First of all, you weren’t in the room when I addressed the question earlier, I believe. The issue here with regard 

to the budget is we make projections of what we think the outlays 

are going to be. 

Mr. GALLEGLY. Pardon me, but I was in the room and I did hear 

you say that, and I did make reference to Ms. Jackson Lee’s question was, but my question was I still wasn’t clear because there 

wasn’t the analogy of 10 of 434, and that’s why I’d like to have that 

part addressed. 

Mr. HALLMARK. The projections for the large increase in the pipeline were for 2006, that a very large number of cases would be 

cleared out of the pipeline both under Part B, because my good 

friend Dr. Howard’s staff would be clearing a lot of the cases that 

are currently in their jurisdiction and would come to us and then 

we would be able to pay them at the Department of Labor. With 

respect to the new Part E, a large number of the cases which we 

inherited from the Department of Energy would be moving through 

our adjudication process and reaching fruition in 2006. So we projected that compared to a $600 million pay-out in ’05, we would have a $1.5 billion paid out in ’06, then falling back to, 

I believe, around $800 million in ’07. That appears to be a reducVerDate 0ct 09 2002 10:20 Aug 02, 2006 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\030106\26290.000 HJUD1 PsN: 26290
58

tion in the ’07 context, but it’s really just the projections as best 

we make them about how cases were going to come to fruition. 

Now, obviously, if they don’t, if fewer cases get adjudicated in ’06, 

then that 1.5 number will turn out to be too high and more cases 

will probably end up falling into the 2007, and whatever money is 

required to make these payments will be provided by the Treasury. 

Mr. GALLEGLY. Would it be safe for me then to say that my question is answered with great optimism on the part of the department, that the real answer to the question is we should be excited 

about the fact that it is going to be less next year than this year 

because it’s your projection of those 434 cases, the overwhelming 

majority of them will be resolved this year even though only a pittance has been resolved in the past? 

Mr. HALLMARK. Well, first of all, the 400 is a small percentage 

of the total value volume we’re talking about. 

Mr. GALLEGLY. I understand that, but I would think that Santa 

Susana should be represented pretty much as well as the other 

sites, and, believe me, I’m as concerned about the other sites as I 

am this. I’m just more intimately involved in this with the sheer 

numbers, and I would think that that percentage would bear pretty 

much a fair relationship across the country. 

Mr. HALLMARK. Well, I would actually have to take issue with 

that notion in the case of Santa Susana, because as Dr. Howard 

alluded, there was a fairly substantial delay in coming to closure 

on what the actual dimensions of coverage are at that site under 

this program. This had to do with the designation that was originally produced by the Department of Energy with respect to which 

parts of the Santa Susana/E-Tech Rocketdyne facility were, in fact, 

to be covered, and there was a lengthy period of trying to come to 

closure on that. A relatively narrow original designation has now 

been broadened to cover a much larger area. That decision was 

reached in September of 2005, but as a result of the interplay that 

went on before that, these cases, the cases that you’re particularly 

concerned about, and I understand why that is, were not moving 

forward on the same track as at many other sites. 

So, in fact, while we will do our best, and I’m sure Dr. Howard’s 

staff will do their best, to move them forward, now that those 

issues have been put behind us. They are behind the curve vis-avis a number of other facilities. 

Mr. GALLEGLY. Well, to say that I haven’t been aware of what’s 

gone on for the past 20 years there would be an understatement 

or an overstatement, however you want to refer to it, but I don’t 

think there’s been a meeting in the last at least 19 years where my 

staffers or myself, where someone hasn’t been present; and prior to 

that, I happened to be Mayor of the city for 7 years of Simi Valley. 

So for 27 years, I have been very well connected with the problems 

of what we refer to as ‘‘on the hill’’. 

I hope that now that we’ve got some of these roadblocks or diversions behind us that there will be an extra effort to clear these 

files, because folks, these people are dying. There are people that 

are dying, and the clock means more to them than it does to maybe 

some other Federal projects that we might have out there, if it was 

a bridge or a highway or whatever, because these folks are living 

with a very short clock, and I would just appeal to you from a huVerDate 0ct 09 2002 10:20 Aug 02, 2006 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\030106\26290.000 HJUD1 PsN: 26290
59

manitarian standpoint to try to do the right thing. I’ve got a lot of 

folks that are directly physically affected by this, and I make that 

appeal to you. 

With that, Mr. Chairman, I yield back. 

Mr. HOSTETTLER. I thank the gentleman. I’m going to have a few 

more questions, not many, but I would like to elaborate on the 

budgetary implications of the OMB memo vis-a-vis the actual budget, and to quote from the OMB memo, quote, ESA, the Employment 

Standards Administration is to be commended for identifying the 

potential for large expansion of EEOICPA Part B benefits with the 

designation of special exposure cohorts, or SEC, unquote. Now, as 

far as the budget is concerned, if there is a large expansion of Part 

B benefits without the creation of a new regime or significant 

changes to the program, I would think that the budget would reflect a, ‘‘large expansion or increase in expenditures on the part of 

the EEOICPA Part B benefits.’’

But as I look at the actual budget appendix on page 733, the estimated expenditures for 2006 are $460 million and the budget estimation for 2007 is $277 million, a significant reduction in Part B 

benefits to be paid out, and we’re discussing this memo in depth, 

at length. So if there hasn’t been significant changes and the Department of Labor is suggesting to OMB that there’s going to be 

to a large expansion of benefits, how are we—once again, without 

substantial changes to the program, how are we projecting significant reductions in the expenditure of Part B benefits? 

Mr. HALLMARK. Mr. Chairman, the estimates for both Part B and 

Part E are based on our actuarial projections, primarily based on 

the experience to date with some input of information about known 

incoming changes in the process through the pipeline, as I’ve mentioned earlier. In the case of Part B as in the case of Part E, we 

projected an increase in ’06. In the case of Part B, that was because 

we anticipated a larger number of cases coming back from NIOSH 

than in the past, and the anticipation was that that was then going 

to taper off in 2007. That’s the reason for the number going somewhat down in 2007. 

We did not try to make the projections contingent upon the outcome of the SEC class determination process as that is in a sense 

unpredictable in terms of which classes might be acted upon at 

which timeframe. So those kinds of forecasts are not included in 

the projections that are in the President’s budget. 

Mr. HOSTETTLER. But these are mandatory expenditures. I guess 

my question is which one is right. Is the memo right? Because if 

they’re mandatory expenditures, there would have to be the provision, if there was—if they’re mandatory expenditures and they are 

being projected to be a large expansion in mandatory expenditures, 

I guess my question is, once again, which one is right? Is the budget right or is the identification of large expansion of Part B benefits 

right? 

Mr. HALLMARK. Well, if there were a large number of broad SEC 

classes created, that would change the budget projections that we 

have presented. 

Mr. HOSTETTLER. Actually, that would change the actual outlays. 

60

Mr. HALLMARK. The projections are what they are, but it would 

change the outlays, and that would cause a differential vis-a-vis 

what we’ve projected. 

Mr. HOSTETTLER. Right. And I guess what my question is, is that 

OMB creates the budget, that helps in the budget process, is being 

informed by DOL that there’s going be a large expansion of benefits 

just as they would be from HHS with regard to a large expansion 

of prescription drug benefits for seniors through Part D. They 

would reflect that in their budget authority requested. Now, if instead of a third of seniors signing up for prescription drugs, twothirds of seniors signed up, then the outlays would far outpace the 

B.A., that was projected, but if everyone recognized that probably 

two-thirds of seniors were going to sign up the B.A. request, the 

budget authority request, would reflect that. They would be consistent. I guess that’s my question. I appreciate the response. It’s 

just a little confusing. 

If I can go on to Mr. Miller. Let me ask you about the audit contractor’s work. Is it your understanding, your experience, that the 

audit contractor’s work product is satisfactory and useful to the 

process? 

Mr. MILLER. Thank you, Mr. Chairman. The audit contractor’s 

process is governed by the series of procedures that the Advisory 

Board had to put in place first, and so they work within a set of 

very standardized sets of questions. If they review a site profile, 

they look at data adequacy, compliance with regulations. Yes, they 

do look at questions of claimant favorability, because that’s written 

into virtually every single NIOSH guidance document, and so to 

that extent, Mr. Hallmark is right. Where Mr. Hallmark, though, 

perhaps may be overstating the case is that this audit contractor 

has produced audits that I have reviewed, redacted, that show 

overestimates and they flag it when NIOSH or its dose reconstruction staff have overestimated cases. They have recently identified 

cases that were referenced at the most recent Advisory Board 

meeting where the improper procedures were used and it may have 

led to significant overestimates which may have actually even led 

to inappropriate compensation, although we don’t know that because that has yet to be revealed; but the very fact that they put 

up a red flag and call it as they see no matter what is I think what 

you want to count on in a peer review process. 

The characterization I think that Mr. Hallmark made was both 

unfair and unsupported by the record. From a claimant’s perspective, there is something very important about having this audit 

contractor. They do not bring to the table a set of baggage from 

having been at the Department of Energy creating and running 

those dosimetry programs, and they take a wire brush over the assumptions that NIOSH and its dose reconstruction contractor—

which is a major DOE contractor—and they bring, they dig right 

into the assumptions and the roots and the adequacy of the data 

and the validity of what’s being looked at. 

They ask the questions which, frankly, claimants lack the expertise to even dig into. And in the end, claimants if their claim is denied, don’t have ability to say you’re misestimating my dose unless 

it’s something really obvious and glaring, and they’re counting on 

the Advisory Board and a truly independent audit contractor to 

61

give credibility to the process that the problems are caught wholesale, that the procedures that are found get fixed across the Board. 

Claimants aren’t bringing individual claims and saying I want to 

appeal to the Advisory Board. They’re not allowed to do that, but 

the generic problems that have to get rooted out can’t get rooted 

out there, particularly, as Dr. Howard was saying, they’re very focused, I think recently, on conflict of interest. But as our testimony 

points out, many of the people writing the core guidance documents 

for this dose reconstruction program managed the health physics 

programs at DOE sites. They have significant professional conflicts 

of interest, and we have documented that this has tainted the quality of science coming out of this program, and the only way to effectively get at the taint and the quality of the science in this program 

is for there to be an effective check and balance. Without that, we 

all have to walk away, throw up our hands, and say it lacks credibility. 

And so for the OMB document and Mr. Hallmark to try to knock 

the knees out from underneath this check and balance, this peer 

review process, it is really quite troubling, because at the end of 

the day, if he prevails and the OMB prevails in this process, I’m 

not sure claimants are going to have much confidence at all that 

they have anybody who is really looking at it, looking at all these 

assumptions under a microscope and scrubbing them. 

Mr. HALLMARK. Mr. Chairman, if I could respond. 

Mr. HOSTETTLER. Yes, Mr. Hallmark. 

Mr. HALLMARK. I’m sorry to interrupt, but since I’ve been taken 

issue with, I’d like to just respond a moment. 

I think it’s fair to say that the SC&A folks have a clear statement of conflict of interest with respect to having responsibilities 

or having prior experience in dealing with DOE contractors as support for DOE contractors or working for DOE contractors. They do 

not, however, come to table with no baggage since many of the analysts for SC&A, in fact SC&A itself, have served as retainers for 

individuals who are suing either the Department of Energy or the 

United States Government or similar entities. So they’re on the 

other side of the table. 

So Mr. Miller’s view of balance in this respect is different than 

mine. I believe that conflict of interest requirements should apply 

on both sides of the house and that we should look to see whether 

individuals who are making judgments about a particular site have 

had involvement at that site on the DOE side or on the other side. 

Mr. HOSTETTLER. I appreciate that. I think we received testimony from Dr. Melius that there was stringent conflict of interest 

provisions from the audit contractor that even exceeded those of 

the dose reconstruction contractor. 

Is that not accurate, Dr. Melius? Is that what I heard? 

Dr. MELIUS. Correct. 

Mr. HALLMARK. I believe that the stringency is on the issue of 

making sure that the SC&A individuals have had no dealings 

whatever as support for DOE. I’m looking at the SC&A disclosure 

documents that are on their web site now, and the question that 

is answered is have they served as an expert witness in litigation 

defending workers’ compensation or other radiation claims, and the 

answer is no. The answer, I think would be, yes, however, if the 

62

question were posed have you served as an expert witness in litigation for the plaintiff’s side, and in my view, that kind of involvement is also a potential conflict of interest and has not been addressed, at least in the documents that SC&A has on its web site. 

Mr. MILLER. Mr. Chairman, if I could respond. 

Mr. HOSTETTLER. If I could just ask a question, and the question, 

I guess, is why isn’t that question asked? 

Mr. HALLMARK. The issue of plaintiff status? 

Mr. HOSTETTLER. Yes. 

Mr. HALLMARK. I assume because the answer would be yes, and 

that would raise the question of whether there was, in fact, a conflict of interest that should bar at least the participation of those 

individuals at particular sites where they have a current interest. 

Mr. HOSTETTLER. I guess my question is isn’t that the purpose 

of an audit contractor—to actually give a reason for the claimant 

community to believe that the process is transparent. I mean, if I 

were going to choose one, and I think actually Dr. Howard pointed 

out the very true fact of human nature that we’re all going to come 

to the table with some perspective, some bent, and that’s totally 

understandable. As a person who is a budget hawk, potentially 

sometimes to a fault, I would come to a lot of these issues looking 

at the dollar figures. This does not happen to be one of those and 

is far from it, but so we all come to the table with a certain perspective. 

So as an audit contractor, I would think we would want someone 

that if they had a bent, then they would have a bent toward the 

claimant community. I think we would recognize that. But the individual that is actually the entity that is actually doing the science, 

is the dose reconstruction contractor, and would be the one that we 

would want to have as little conflicts of interest because science, 

being somewhat familiar with it as I am, is not an issue of interest. 

It is an issue of science, and so we would want that standard, and 

then we would want this other entity that would be more like I 

said, because as Mr. Miller pointed out, the claimant community, 

by and large lay people, they want somebody that’s looking into 

this situation, that’s asking all the right questions, that are meddling, however you want to put it, and are keeping us all honest, 

including Congress, about this process. 

So you have a very good point, Mr. Hallmark. I understand that, 

and I would presume that the audit contractor would be bent that 

way, because, in fact, the Federal Government harmed these people 

knowingly, and so I would want somebody in the process that 

would be looking over our shoulder, because if we did it once, we 

might be predisposed to doing it again, collectively, all of us. All 

of us, not any one particular entity, not any one Administration, 

Congress, nobody, no one person. 

So anyway, the point is very well taken. 

Mr. HALLMARK. If I could extend my remark for a moment, I 

think I want to repeat that NIOSH came into this process following 

congressional guidance to ensure that dose reconstruction was done 

on a basis that leaned over backwards to be favorable to the claimant, and I think they’ve done that from the very start of this program. 

63

I think the point that I’m trying to make with regard to the issue 

of balance is that if the Board’s review of what NIOSH does only 

looks at one-half of the equation, could they lean further over. Then 

it raises the question about is there a point about which plausibility is lost? And if no one is really looking at plausibility, then 

there is no check and balance in the system. The system is going 

to be focused entirely on moving the bar to the side of further exaggeration or further overestimation. 

This is a non-adversarial program. So there is no party that has 

standing within the EEOICPA program to say, no, we object; that 

claim is too far; that’s gone beyond plausibility. There is no employer interest, or the Department of Energy has no standing in 

this program to appeal or to argue. So if the Board and its contractor look only at one side of the equation, then the entire program will move that way, because I would also submit that science 

is in this case part of a discussion, and the science is open a range 

of possibilities, and NIOSH is reasonably guided by what their 

Board tells them, and I think the outcome of that can be other than 

balanced and objective in the long run if, in fact, there is only one 

equation, only one criterion being applied. 

I think that’s the substance of what we’re trying to say. 

Mr. HOSTETTLER. Sure. I appreciate it. 

Dr. Melius, yes. 

Dr. MELIUS. I’ll try to do this very briefly. Two points: One is the 

Board had long discussions on the conflict of interest issue and how 

to achieve a correct balance and this issue of which side people had 

appeared on in various situations, and we actually reached the 

same conclusion that you just stated—that we needed to pay special attention to the issue of people that had worked for the Department of Energy facilities giving the past history of what went 

on. The other issue was subordinate to that, not totally ignored, 

but it was subordinate to that. 

Secondly, to Mr. Hallmark’s last statement, I would just reiterate 

that the Board does look at both sides of this, of these issues, that 

we’re trying to reach a fair and balanced view of this. I shouldn’t 

use the word ‘‘balance’’ probably anymore here, or imbalanced or 

whatever, but we want to come up with a fair assessment, and we 

have instructed our audit contractor to look at a range of issues, 

some of which would lead to overestimates, some which might lead 

to underestimates, and then we try to reach our conclusions based 

on what is the right balance dealing with that. 

I think it’s important to note that much of the recent deliberation 

of the Board has involved special exposure cohorts where there 

large numbers of records are missing and going back in time, and 

without going into technical details, they are difficult to do. So 

NIOSH is often trying to make the best it can do if it is going to 

be able to do dose reconstruction based on very little data. So there 

really is a fundamental question. If you’re only using a very small 

amount of data, is that fair to the claimant to do it in that way. 

So we may have looked a little bit more on the side of, well, how 

do you extrapolate from little data to a lot of data. You don’t want 

to punish the person for there not being records of their exposures. 

So maybe much of the discussion has been more on that side, but 

overall, as Mr. Miller has pointed out, if you want to look through 

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the reviews that the contractor has done on individual cases, 

there’s a mix. Some cases overestimate. Sometimes underestimations of the exposures or whatever is being specifically looked 

at, and then we need to step back and say, Well, what’s the right 

way of doing a fair overall estimate of that person’s dose. 

So we ask the contractor to look at all sides and then report back 

to us. 

Mr. HOSTETTLER. Thank you, Dr. Melius. 

And Mr. Miller. 

Mr. MILLER. Mr. Chairman, thank you. I would just like to draw 

your attention to page 14 of our testimony where we cite five separate examples where the NIOSH through its contractor, Oak Ridge 

Associated Universities, has hired individuals who managed the 

health physics programs and in some cases served as expert witnesses defending workers’ radiation compensation claims. For example, at the Idaho laboratories in Idaho, there is an individual 

who wrote the guidance document, the threshold document that 

Mr. Gallegly was talking about, that was used for evaluating compensation claims, and so in numerous, numerous cases defending 

compensation claims for radiation-related illness. 

If Mr. Hallmark wanted to apply his conflict of interest criteria 

to Oak Ridge Associated Universities, you would have an exodus 

out the door of health physicists and a paucity of individuals to 

work on those cases. So the question then becomes checks and balances, and it goes back to that earlier point. If the pool of health 

physicists out there is relatively shallow, which it is, and many of 

them come directly out of the revolving door of managing the 

health physics programs and at the same time bring their own perspectives and biases, including having testified on the record as an 

expert witness in defending these claims at these sites, and are 

writing the guidance documents, they themselves are caught between what they’ve said on the public record and what they’re obligated to do for NIOSH, and the question is who technically is out 

there that’s going to ask the pointed questions in a technically astute manner. 

If I can just give you one example, in the case of Paducah, Kentucky, NIOSH hired an individual who wrote an internal dose assessment report for Martin Marrieta who ran that plant. She cut 

and pasted her own previous work directly into the NIOSH site 

profile which had been found previously to incorrectly minimize exposures to the very isotopes of concern, and then NIOSH went 

through going through four tiers of review, rubber stamped it, sent 

it out the door, and adjudicated cases accordingly. 

Now, fortunately in this instance, Senator McConnell picked up 

on this and has asked NIOSH to review this again and they have 

agreed to do so, but I would only use this as an example of someone who brought her own bias to the table, cut and pasted her 

work in. It was incorrect to start with. It had been criticized in the 

open literature, and who is going to be out there that’s going to be 

astute enough to catch that if you are relying on the same individuals in the system to serve as your audit contractor? You need a 

set of fresh eyes that aren’t wedded to that system. That’s what 

Sanford, Cohen brings. 

Mr. HOSTETTLER. Thank you. 

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Thank you, gentlemen. We are concluded. I want to thank you 

for your testimony and your appearance here today. This is a very 

difficult issue, and I commend you for the work that you’re doing 

to resolve these differences. 

Our next hearing on this issue will be held next week on Thursday. We will continue in this. Your contributions have been extraordinary to the record on this. Congress had intentions when we 

originally passed the law to right this wrong that was done by the 

Federal Government so many years ago to these people. Once 

again, I want to thank you for your participation and the work. 

The Subcommittee being completed, we are adjourned. 

[Whereupon, at 6:01 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND RANKING MEMBER, SUBCOMMITTEE

ON IMMIGRATION, BORDER SECURITY, AND CLAIMS

Today’s hearing will focus on Subtitle B of the Energy Employees Occupational 

Illness Compensation Act. Subtitle B covers 3 types of occupational illness associated with making nuclear weapons, ‘‘cancer,’’ where it can be shown that the cancer 

is at least as likely as not related to ionizing radiation exposure while employed at 

a nuclear weapons facility; ‘‘chronic beryllium disease,’’ and ‘‘chronic silicosis.’’

Energy Department federal, contractor, and vendor employees who have contracted one of these illnesses, or their survivors, may be eligible for a lump sum of 

$150,000 and prospective medical benefits. The Act also provides for a $50,000 supplemental payment to uranium miners/millers, or their survivors, who were eligible 

to receive $100,000 under the Radiation Exposure Compensation Act. 

For radiation related cancer claims, the Department of Health and Human Services (HHS), through the National Institute for Occupational Safety and Health 

(NIOSH), is required to estimate a worker’s radiation dose if dose records are available. However, during the earlier years of the nuclear weapons programs, especially 

between the 1940s and the 1970s, some workers were not monitored and the monitoring that was done sometimes was inadequate. Also, some records from this period 

were lost or destroyed. 

The Act provides a remedy for cases where it is not feasible to estimate radiation 

doses with sufficient accuracy, and it is clear from job types that the workers’ health 

may have been endangered by radiation exposure. Under these provisions, workers 

(or their unions) may petition to be administratively designated as a ‘‘Special Exposure Cohort,’’ which establishes an unrebuttable presumption that certain cancers 

are work related. Members of a Special Exposure Cohort are eligible for the 

$150,000 lump sum benefit if they have one of 22 radiosensitive cancers and, in general, if they have worked at a covered facility for at least one year in a job that 

exposed them to radiation. 

The HHS Secretary, subject to a review and recommendation from the Advisory 

Board on Radiation and Worker Health, makes the ‘‘Special Exposure Cohort’’ designations. To date, the Secretary has denied 2 Special Exposure Cohort petitions 

and approved 6 involving approximately 1,100 cases. 

The Administration recently declared its intention to reduce the number of Special Exposure Cohorts in a memorandum referred to as an, ‘‘Office of Management 

and Budget (OMB) passback.’’ The passback provides for establishing a White 

House-led interagency work group ‘‘to develop options for administrative procedures 

that will contain the growth in the cost of benefits provided by the program.’’

Options to be considered include requiring an administration clearance for all 

Special Exposure Cohort designations; requiring an expedited review by outside experts; addressing any imbalance in membership of the President’s Advisory Board 

on Radiation and Worker Health; and imposing constraints on the Advisory Board’s 

audit contractor. 

Currently, a Special Exposure Cohort petition goes through an initial evaluation 

by NIOSH, and its recommendation is then peer reviewed by the Advisory Board 

before it goes to the Secretary for a decision. These reviews are conducted in the 

open and on the record with an opportunity for input from experts and the petitioners. 

We need to be concerned about this system if it is broken or HHS is approving 

Special Exposure Cohort petitions that should be denied. We will hear testimony on 

that issue today. 

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Five-and-a-half years have passed since the Energy Employees Occupational Illness Compensation Act was enacted, and the sick workers who were supposed to 

be served by its programs are dying. The Administration should be doing more to 

help these workers, not trying to make it more difficult for them to establish eligibility for compensation. It is too difficult already. 

These workers made a commitment to our country when the country needed them. 

Now, it is our turn to help them in their time of need. 

PREPARED STATEMENT OF JOHN MAURO, PH.D., CHP, PROJECT MANAGER, S. COHEN & ASSOCIATES (SC&A, INC.) 

Chairman Hostettler, Ranking Member Jackson-Lee, and Members of the Subcommittee, thank you for the opportunity to submit testimony regarding the role my 

firm, S. Cohen & Associates (SC&A, Inc.), plays in supporting the critical independent advisory function of the Advisory Board on Radiation and Worker Health 

(the Board) under the Energy Employees Occupational Illness Compensation Program Act (the Act or EEOICPA). 

First, I would like to provide an overview of who we are, our role, and how we 

have approached our technical work for the Board over the past two years. This will 

be followed by a more detailed description of our contractual requirements and accomplishments. I will conclude by briefly offering our perspective on the value of the 

technical inquiries that we have made. 

SC&A is a small business providing professional services in the radiation sciences. 

The majority of our work over the past 25 years has been for government clients, 

including the Environmental Protection Agency, Nuclear Regulatory Commission, 

Centers for Disease Control and Prevention, and Defense Nuclear Facilities Safety 

Board. Our reputation has been built on our technical expertise and on the ethical 

standards that we have brought to our work on sensitive public issues, such as nuclear waste management, contaminated site cleanup, and the health risks of radiation. While this past experience is deep and diverse, it does not include radiation 

protection support for the Department of Energy or its operating contractors. 

SC&A CONTRACT ROLES AND RESPONSIBILITIES

On October 14, 2003, a three-year, task order contract (200–2004–03805) was executed between the Centers for Disease Control and Prevention (CDC) and SC&A. 

Under this contract, SC&A’s role is to provide technical assistance to the Board in 

fulfilling its mandate under EEOICPA, which has amongst its charges the task of 

reviewing a reasonable sample of dose reconstructions for scientific validity and 

quality, assessing the methods and procedures for dose reconstruction, reviewing 

Special Exposure Cohort (SEC) petitions, and advising the Secretary of Health and 

Human Services (HHS) in these matters. 

All tasks under this contract are performed in accordance with Federal acquisition 

regulations and protocols mandated by the Federal Advisory Committee Act (FACA). 

In summary, the Board, in open session, identifies tasks that they would like SC&A 

to perform, and that are within SC&A’s contractual statement of work. The NIOSH 

Designated Federal Official, who currently also serves as the NIOSH Project Officer 

for this contract, and the NIOSH Contracting Officer participate in this process. 

Once the Board agrees on the scope of a given task order, the Board, in cooperation 

with the NIOSH Project Officer and Contracting Officer, issues a Task Order Request for Proposal (TORP). In response to the TORP, SC&A prepares a proposal of 

work, which includes the task order scope of work, a budget, schedule, technical approach, and assigned personnel. The Board and the NIOSH Contracting Officer review SC&A’s proposal, provide any comments or additional direction to SC&A, and 

SC&A submits a revised proposal, as required. During open session, the Board approves the proposal of work, and work begins. 

Before work on a task order can begin, SC&A is required to submit a quality assurance plan and a conflict of interest plan to implement controls over documents 

as needed in order to meet the requirements of the Privacy Act, and to prepare written technical procedures that must be reviewed and approved by the Board in open 

session. The procedures that SC&A has prepared to date flow directly from the Act 

and the regulations that implement the Act, namely 42 CFR Part 82, which deals 

with dose reconstructions, and 42 CFR Part 83, which deals with SEC petitions. 

Hence, everything we do is designed to assess the degree to which NIOSH work 

products under the Act meet the letter and intent of the Act and its implementing 

regulations. 

To date, SC&A has been authorized by the Board to perform a number of task 

orders (six in total, at a projected cost of $6.5 million through September 31, 2006; 

69

i.e., about $2 million per year), which can be conveniently grouped into four categories of services, as follows:

1. Review of the procedures, guidelines, and other ‘‘tools’’ being used by NIOSH 

to perform dose reconstructions: To date, SC&A has either reviewed or is in 

the process of reviewing a total of about 60 NIOSH and NIOSH contractor 

procedures, and approximately 30 workbooks. Workbooks are computer programs that help NIOSH dose reconstructors perform their work in accordance with the dose reconstruction procedures.

2. Review of site profiles: To date, SC&A has either reviewed or is in the process of reviewing 15 site profiles pertaining to specific Department of Energy 

(DOE) or Atomic Weapons Employee (AWE) facilities. Site profiles are technical documents that provide background information and technical direction 

to dose reconstructors on how to go about reconstructing doses for particular 

facilities.

3. Review of adjudicated dose reconstructions: To date, SC&A has reviewed or 

is in the process of reviewing 80 dose reconstructions performed by NIOSH. 

The dose reconstructions performed by NIOSH are being used by the Department of Labor in support of compensation decision-making under the Act.

4. Technical support to the Board in matters related to Special Exposure Cohort petitions: To date, SC&A has been requested by the Board to perform 

the following SEC-related tasks: (1) prepare a report that presents a review 

of the procedures developed by NIOSH for use in evaluating SEC petitions, 

(2) prepare procedures to be used by SC&A and the Board for reviewing SEC 

petitions and/or SEC evaluations prepared by NIOSH, (3) review the Ames 

Laboratory SEC petition, and (4) perform focused reviews of Board-selected 

issues related to the Y-12 and Rocky Flats SEC petitions. We have also provided technical support to the Board on the Mallinckrodt and Iowa Army 

Ammunition Plant SEC petitions by evaluating the relevance of certain 

issues raised in the site-profile review process for determining the feasibility 

of dose reconstruction under the SEC regulation (42 CFR Part 83).

All of our work products are either delivered to designated Board members as preliminary draft reports, which are works in progress and are not distributed to the 

public, or are delivered to the full Board as draft reports that are immediately made 

available to the public. The draft reports contain SC&A findings resulting from our 

reviews of NIOSH procedures, guidelines, workbooks, site profiles, dose reconstructions, and SEC evaluation reports. The delivery of these reports triggers an issuesresolution process under the direction of a Board-designated working group. A working group consists of a chairperson, about three other Board members, representatives of NIOSH, and representatives of SC&A. The mandate of the working group 

is to discuss the technical details of SC&A findings with an aim toward resolution 

of the issues. Working group meetings often involve participation by interested 

members of the public, and the meetings are transcribed and are a part of a public 

record. 

The implementation of the working group concept has become increasingly more 

productive and efficient as experience has been gained and the process streamlined. 

SC&A’s analyses have often been pivotal in the Board’s findings on the NIOSH dose 

reconstruction program, including instances where over-conservatism in technical 

approach could lead to significant overestimates of radiation doses, and those where 

the NIOSH procedures being reviewed were not resolving uncertainties in favor of 

the claimant in a manner laid out in the regulation (42 CFR Part 82). SC&A has 

recognized the pragmatic approach that is incumbent upon NIOSH in balancing 

science with delivering defensible dose-reconstruction determinations. While SC&A 

takes this perspective into account in its reviews, we see our function as ensuring 

that the work done in dose reconstruction and SEC petition evaluation conforms to 

the standards of sound science and resolution of uncertainties that exist in favor of 

the claimant, as required by the regulations. We believe the results achieved to date 

speak for themselves and will be enumerated in more detail later in this statement. 

At full Board meetings, in open session, the Chairman of the working group reports progress on the issues-resolution process to the Board. If it appears that the 

working group has gone as far as it can in resolving issues, the Board holds an 

issues-resolution session, where each issue is discussed in open session, and the 

issue is closed out to the extent possible. Closeout of an issue involves a statement 

by the Board that either (1) SC&A withdraws its findings based on additional information provided by NIOSH, (2) NIOSH concurs with SC&A’s findings and has taken 

action or plans to implement an action that resolves the issue to the satisfaction 

of the Board and its contractor, or (3) the issue remains unresolved to varying deVerDate 0ct 09 2002 10:20 Aug 02, 2006 Jkt 000000 PO 00000 Frm 00073 Fmt 6601 Sfmt 6621 G:\WORK\IMMIG\030106\26290.000 HJUD1 PsN: 26290
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grees, and there is no further action necessary by SC&A to participate in the resolution process for that issue. 

The important point to be made here is that all activities by the Board and its 

contractor are fully transparent and traceable back to the Act and its implementing 

regulations. 

SC&A EVALUATIONS HAVE BEEN VALUE-ADDED

To date (i.e., since the beginning of the project on October 14, 2003), SC&A has delivered 32 reports to NIOSH and the Board at a cost of $3.7 million. While the 

detailed analyses contained in, and hence the length of, the reports is one indication 

of the amount of work that has gone into them, we have tried to review for this 

hearing some of the more important accomplishments in programmatic terms. The 

10 most important of these, culled from a larger list, are described as follows:

1. SC&A’s reviews of NIOSH and ORAUT dose reconstruction procedures and 

dose reconstructions identified a substantial number of technical errors and 

have entailed programmatic corrections, procedural changes, and re-reviews 

of adjudicated cases. For example, seventy-five percent of dose conversion 

factors (DCFs) used to convert the readout on a personnel dosimeter to the 

dose to the organ of concern were in error and are being corrected. SC&A 

also identified an error in the methods used to reconstruct the doses to 

lymph modes. NIOSH has acknowledged this oversight, revised its procedures, and is currently planning to review about 1,000 previously adjudicated cases.

2. Our review of several site profiles revealed incomplete radionuclide lists or 

inadequate consideration of radionuclide concentrations, leading to serious 

underestimation of doses or to incorrect conclusions about the feasibility of 

dose reconstruction or both. For instance, for the Mallinckrodt Chemical 

Works (MCW) facility, the site profile coverage of several radionuclides—

thorium-230, protactinium-231, and actinium-227—was deficient. SC&A’s 

assessment showed that in many cases these radionuclides would be the 

largest contributors to radiation dose. SC&A’s analysis showed that the 

methods proposed by NIOSH in the site profile would have led to significant 

underestimates of radiation dose to many MCW workers. Similarly, at Y12, Savannah River Site, and other sites, SC&A has identified radionuclides 

that were omitted from consideration or inadequately considered. For instance, SC&A’s reviews showed that inadequate evaluation of trace radionuclides in recycled uranium, including plutonium and neptunium, would 

also lead to significant underestimates of dose.

3. The methods adopted by NIOSH to reconstruct the doses for early workers 

at the Iowa Army Ammunition Plant (IAAP) were found by SC&A to be so 

overly conservative (i.e., result in excessively high dose estimates) that they 

would have resulted in inequities in compensation for post-1963 workers 

who did the same work as workers in 1950s and early-1960s. The latter 

would have been compensated due, in part, to an effort to protect classified 

data, but the former would have been denied compensation for the same 

cancers and the same work.

4. SC&A’s review of several site profiles revealed that NIOSH often has not 

paid adequate attention to the problem of data integrity (i.e., can we trust 

the completeness, representativeness, and accuracy of the data?). SC&A’s 

work has uncovered data integrity problems at Rocky Flats and the Nevada 

Test Site. Those issues are currently undergoing investigation by NIOSH.

5. SC&A’s review and analysis of several of the site profiles has shown that 

many of the concerns of claimants, site experts, and members of the public 

had technical merit and had not been given adequate consideration. Examples include incidents such as cobbling of uranium rods at Bethlehem Steel, 

high-fired plutonium oxides at Rocky Flats, and trace radionuclides, such 

as protactinium-231 and actinium-227 at Mallinckrodt. More recently, the 

identification of a data integrity problem in part of the external dose record 

at the Nevada Test Site has revealed a critical issue for NIOSH review, 

which had not been identified in its site profile for that site.

6. SC&A’s review of the Bethlehem Steel site profile identified numerous deficiencies in the methods used for performing dose reconstruction. This has 

resulted in significant changes to the Bethlehem Steel site profile and the 

direction being given by NIOSH to the dose reconstructors. The degree to 

which these changes may affect adjudicated claims is under review by 

NIOSH.

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7. SC&A’s review of the application of NIOSH’s dose reconstruction procedures 

revealed that in some cases these procedures were inappropriately applied 

and resulted in large overestimates of the reconstructed doses for some 

workers. Specifically, NIOSH developed certain procedures, such as 

ORAUT-OTIB-0004, for the express purpose of maximizing doses for cases 

that were clearly non-compensable. This strategy of deliberately overestimating doses for non-compensable cases is appropriate as a means to expedite the dose reconstruction process and is in accordance with the provisions of 42 CFR Part 82. However, SC&A identified cases where these procedures were misapplied, resulting in potential inequities in compensation.

8. SC&A’s reviews of site profiles and dose reconstructions revealed the use 

of inappropriate technical assumptions that result in scientifically implausible intakes of radionuclides. In many instances, NIOSH employed standardized simplifying assumptions in performing dose reconstructions as a 

means to expedite the dose reconstruction process. However, in many instances, these assumptions were inappropriate to the exposure setting experienced by the worker. One example is the application of a set of default 

radionuclides that apply to specific classes of facilities (such as nuclear reactors), but not to others (such as at non-reactor facilities). This results in 

dose reconstructions that are without scientific basis.

9. SC&A’s review of NIOSH’s procedures for performing claimant interviews 

indicates that there are inequities in the interview process for survivor 

claimants. Specifically, it is often not possible for survivor claimants to answer the questions posed in an interview, resulting in a degree of frustration on the part of the claimants. SC&A has suggested procedures for remedying these inequities. The Board working group, SC&A, and NIOSH are 

currently discussing this issue.

10. SC&A’s review of site profiles (and complex-wide procedures) revealed that 

the guidance contained therein is at times without technical basis, often 

confusing, and has resulted in erroneous dose reconstructions. For example, 

SC&A identified recurring problems regarding neutron dosimetry and protocols for assigning neutron doses. One facility that is affected by these 

issues is Hanford. Also, NIOSH’s procedures are often confusing and contradictory, resulting in numerous errors in dose reconstructions, especially 

in the assignment of uncertainty in the reconstructed doses. NIOSH is remedying this situation by revising its procedures and preparing computerized 

workbooks that help to avoid these problems.

The preceding illustrative findings are not presented to emphasize fault with 

NIOSH’s program—the scale and scope of the agency’s dose reconstruction mandate 

under EEOICPA is particularly daunting and technically complex. It is to underscore the integral role that SC&A has already played in support of the Board to 

bring important issues and deficiencies to the attention of NIOSH, so that suitable 

actions can be taken. 

SC&A ASSURES INDEPENDENCE AND EXPERTISE OF ITS WORKFORCE

The worth and integrity of SC&A’s technical work derives directly from our corporate ethic and the people that staff this project. As with our other contracts, 

SC&A has assigned only the most qualified professionals to this contract. These include specialists in internal and external radiation dosimetry, environmental and 

medical radiological programs, and nuclear facility operations and safety. We have 

strived for a diversity of expertise and experience, because we believe that gives us 

the capability to add true value to the highly technical assessments that NIOSH 

performs, and facilitates professional discourse on issues of science and technical 

judgment. We have also looked for individuals who have a proven talent for analyzing complex technical issues that require inquisitiveness and a probing mind to 

uncover errors and discrepancies. Finally, while we rigorously and openly apply internal conflict-of-interest requirements to preclude individual conflicts of interest, 

we have also been open to a diversity of backgrounds, including former DOE federal 

auditors, non-profit interests, and industry consultants, with the common denominator being professionals who do not have conflicts of interest, who are experts on 

the subject, and who are experienced in performing independent technical inquiries. 

Before closing, it is important to emphasize that the very nature of the support 

services SC&A provides to the government requires the highest level of oversight 

of conflict-of-interest issues. This is especially true for the services we are providing 

to the Board under this contract. SC&A’s conflict-of-interest plan was submitted in 

final form in October 2004, and was approved by the Board. Fundamental provisions 

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of the plan include that no individual can work on this project if (1) they currently 

work for NIOSH or (2) if they have ever defended the government against workers 

compensation claims. In addition, no SC&A team member that has worked in the 

past at a Federal facility can serve in a lead capacity on any task issued under this 

contract dealing with that facility. These and other conflict-of-interest requirements 

are enforced by SC&A’s COI Plan Administrator, and each member of the project 

team is required to submit a conflict-of-interest disclosure statement that is maintained current and published on SC&A’s web site (http://www.scainc.com/niosh—

disclosures.html). 

CONCLUSION

In closing, we believe the audit role that SC&A has provided in support of the 

Board for the EEOICPA program has proven effective and is becoming more influential and efficient as experience is gained by all parties. We believe our success to 

date results from our efforts to build program value by focusing on high priority 

findings, balancing scientific soundness with the practical constraints of a compensation program, and identifying instances of over-conservatism as well as deficiencies requiring more claimant favorability. We appreciate the imperative of 

avoiding conflicts of interest amongst our staff and organization, and have a very 

rigorous conflict-of-interest program in place. Moreover, we believe that the diversity of our team and its dedication to scientific rigor have resulted in the objective 

and careful analyses mandated by the charge of the Board. We also believe that the 

careful consideration that SC&A has given to claimant, site expert, and public comments has led to better science, fairer procedures for dose reconstruction, and higher 

confidence of the public in the program. 

As various SC&A reviews progress, we are addressing a number of issues that are 

common to many future DOE and AWE sites, thereby providing a generic means 

to achieve closure at multiple sites with an anticipated net savings in time and 

costs. Increasing efficiencies being realized due to experience gained by all parties—

particularly more recently with SEC evaluations—are likewise leading to efficiencies 

that should translate into cost savings. 

We appreciate the opportunity to submit this testimony and to be a part of this 

important national program to compensate civilian veterans of the Cold War.

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RESPONSES OF SHELBY HALLMARK, DIRECTOR, OFFICE OF WORKERS COMPENSATION

PROGRAMS, U.S. DEPARTMENT OF LABOR, TO POST-HEARING QUESTIONS FROM THE

HONORABLE JOHN N. HOSTETTLER


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RESPONSES OF JOHN HOWARD, M.D., M.P.H., DIRECTOR, NATIONAL INSTITUTE FOR

OCCUPATIONAL SAFETY AND HEALTH, CENTERS FOR DISEASE CONTROL AND PREVENTION, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, TO POST-HEARING

QUESTIONS FROM THE HONORABLE JOHN N. HOSTETTLER


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RESPONSES OF JAMES MELIUS, M.D., DRPH, ADMINISTRATOR, NEW YORK STATE LABORERS HEALTH AND SAFETY TRUST FUND, MEMBER OF THE ADVISORY BOARD ON

RADIATION AND WORKER HEALTH, TO POST-HEARING QUESTIONS FROM THE HONORABLE JOHN N. HOSTETTLER


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RESPONSES OF RICHARD D. MILLER, SENIOR POLICY ANALYST, GOVERNMENT ACCOUNTABILITY PROJECT, TO POST-HEARING QUESTIONS FROM THE HONORABLE JOHN

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LETTER FROM SANFORD COHEN, PRESIDENT, S. COHEN ASSOCIATES, INC.

Æ


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