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[Senate Hearing 108-334]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 108-334
 
     ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT
=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

  TO CONDUCT OVERSIGHT OF THE IMPLEMENTATION OF THE ENERGY EMPLOYEES 
               OCCUPATIONAL ILLNESS COMPENSATION PROGRAM

                               __________

                           NOVEMBER 21, 2003

                       Printed for the use of the
               Committee on Energy and Natural Resources

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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                 PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma                JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho                DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee           RON WYDEN, Oregon
LISA MURKOWSKI, Alaska               TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri            MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana                EVAN BAYH, Indiana
GORDON SMITH, Oregon                 DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky                CHARLES E. SCHUMER, New York
JON KYL, Arizona                     MARIA CANTWELL, Washington

                       Alex Flint, Staff Director
                   Judith K. Pensabene, Chief Counsel
               Robert M. Simon, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
                 Pete Lyons, Professional Staff Member

                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Alexander, Hon. Lamar, U.S. Senator from Tennessee...............    20
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................     2
Bunning, Hon. Jim, U.S. Senator from Kentucky....................     1
Burton, John F., Jr., Ph.D., Professor, Rutgers University.......    48
Card, Robert G., Under Secretary, Department of Energy, 
  accompanied by Beverly Cook, Assistant Secretary for 
  Environment, Safety and Health.................................    22
Domenici, Hon. Pete V., U.S. Senator from New Mexico.............     3
Elisburg, Donald, Attorney, on behalf of the American Federation 
  of Labor and Congress of Industrial Organizations (AFL-CIO) and 
  the Building Construction Trades Department (BCTD).............    76
Grassley, Hon. Charles E., U.S. Senator from Iowa................     7
Harkin, Hon. Tom, U.S. Senator from Iowa.........................     4
Kennedy, Hon. Edward M., U.S. Senator from Massachusetts.........     5
Michaels, David, Ph.D., Professor, George Washington University..    58
Miller, Richard, Senior Policy Analyst, Government Accountability 
  Project........................................................    64
Murkowski, Hon. Lisa, U.S. Senator from Alaska...................    14
Owens, Leon, President, PACE Local 5-550, Paducah, KY............    51
Robertson, Robert E., Director, Education, Workforce, and Income 
  Security Issues, General Accounting Office.....................    39
Schumer, Hon. Charles E., U.S. Senator from New York.............     5
Talent, Hon. James M., U.S. Senator from Missouri................    18
Voinovich, Hon. George V., U.S. Senator from Ohio................     6

                               APPENDIXES

                               Appendix I

Responses to additional questions................................    93

                              Appendix II

Additional material submitted for the record.....................   101

     ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT

                              ----------                              

                       FRIDAY, NOVEMBER 21, 2003

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:35 a.m. in room 
SD-366, Dirksen Senate Office Building, Hon. Jim Bunning 
presiding.

            OPENING STATEMENT OF HON. JIM BUNNING, 
                   U.S. SENATOR FROM KENTUCKY

    Senator Bunning. The committee will come to order. We are 
temporarily detained because Senator Grassley is making some 
phone calls on the energy bill. I am going to make my opening 
statement and then hopefully Senator Grassley will be here for 
his testimony.
    Today's hearing focuses on the Department of Energy's role 
in the Energy Employees Occupational Illness Compensation 
Program. We are having this hearing because of the findings 
from an ongoing GAO investigation that I requested because of 
concerns that the Department of Energy workers at the Paducah 
Gaseous Diffusion Plant in Paducah, Kentucky, and the DOE 
workers at other sites have expressed to me about subtitle D of 
the program.
    This program was created in 2000 to compensate employees of 
the Department of Energy or its contractors who developed 
illnesses due to their work for the Nation's nuclear weapons 
program. There are two major parts of the program that are 
administered by two agencies, the Department of Labor and the 
Department of Energy. The Department of Labor under subtitle B 
of the act has made a final decision on about 53 percent of all 
filed cases and has paid more than $700 million in claims. In 
contrast, the Department of Energy under subtitle D of the act 
has made a decision on only 6 percent of all filed cases and 
none--I repeat, none--have received workers compensation. The 
DOE's current track record for processing claims disturbs me 
and causes me serious concern about whether the Department has 
the capability to handle the compensation program.
    As most of my colleagues on the committee know, we have 
been dealing with contamination at the Paducah plant for some 
time now. During the 106th Congress I sat on the Energy 
Committee and we conducted field hearings in Paducah that 
brought to light the actual extent of the contamination in the 
workplace and the problems at that plant.
    We discovered that workers at the plant were exposed to 
radioactive materials for over 50 years at the Department of 
Energy site across this country. Many workers sacrificed their 
health and safety and were placed unknowingly in harm's way to 
make nuclear weapons for our country.
    Many of the workers at the Paducah plant have received 
compensation for the illnesses due to radiation and beryllium 
under subtitle B. However, over 2,400 former Paducah workers 
exposed to toxic substances still are waiting to have their 
cases heard to receive compensation for their illnesses. I hope 
that this hearing and the GAO's final report on this issue will 
bring to light a way for us to end the backlog of those 
thousands of cases that have not received any compensation.
    We begin today with Senator Charles Grassley in the first 
panel. On the second panel, the Department of Energy Under 
Secretary Robert Card will be the person testifying. On the 
third panel we have six witnesses: Mr. Robert Robertson, 
Director of Education, Workforce, and Income Security Issues 
with the U.S. General Accounting Office; Dr. John Burton, a 
professor at Rutgers University who was appointed by President 
Nixon to and served as Chairman of the National Commission of 
State Workman's Compensation Laws; Mr. Leo Owens, president of 
the Paducah, Kentucky, chapter of the PACE union--I am honored 
that Leon has taken the time to come to testify before this 
committee today--Dr. David Michaels, now a professor at George 
Washington University and formerly the Assistant Secretary of 
Energy for Environment, Safety, and Health; Mr. Richard Miller, 
a Senior Policy Analyst with the Government Accountability 
Project; and last but not least, Mr. Donald Elisburg, an 
attorney with the AFL-CIO in the Building Construction Trades 
Department.
    I will get to your opening statements in a minute. Let us 
let Senator Grassley go ahead and do his testimony. I know how 
busy he is. Senator Grassley, go ahead.
    [The prepared statements of Senators Bingaman, Domenici, 
Harkin, Kennedy, Schumer, and Voinovich follow:]
        Prepared Statement of Hon. Jeff Bingaman, U.S. Senator 
                            From New Mexico
    Let me first thank all the witnesses from coming here today.
    Several years ago, I held with Representative Tom Udall, a public 
meeting in Espanola, New Mexico to discuss the compensation of workers 
at Los Alamos. The gathering was attended by over 300 present and 
former nuclear weapons workers. There is one particular story about one 
New Mexican being exposed to mercury.
    Mr. Alex Smith of Espanola, operated a mercury still at the Los 
Alamos National Laboratory. Mr. Smith displayed all the signs of both 
acute and chronic mercury poisoning. He approached LANL's physician 
seeking treatment and protection only to be told he was not suffering 
from mercury illness. Later, discovery by investigators revealed a 
different story. In fact, the physician did suspect Mr. Smith was 
suffered from mercury toxicity but for reasons we can only speculate on 
now failed to act.
    As a result of this and other stories about sick DOE workers, I, 
while a member of the Senate Armed Services Committee, along with 
Senators Bunning, Domenici, McConnell, Voinovich, Thompson, and other 
colleagues in the Senate, worked hard to add the Energy Employee's 
Occupational Illness Act into the National Defense Authorization Act 
for fiscal year 2000. The provision was so controversial that it almost 
brought the conference to a halt but we succeeded.
    Three years later, we are now examining how this program is being 
implemented at the Department of Energy.
    I have a few concerns on the overall program and its progress.
    The enabling legislation asked for a legislative proposal on how to 
implement and improve this program no later than March 1, 2001. To my 
knowledge I have not seen these recommendations.
    I am concerned about the issue of whether the Department of Labor 
is not the best place to carry out the compensation program in subtitle 
D, which is currently carried out at the DOE. The Department of Labor 
has a long history, infrastructure, and culture of carrying worker 
compensation programs. The slow progress the DOE has shown to date with 
a relatively inexperienced contractor, and increasing appropriations 
requests, three years after the program started, indicates to me that 
the DOE is slowly building up an infrastructure and expertise that may 
already exist at the Department of Labor.
    Finally, from a policy sense, I am concerned about whether part D 
can work even if the DOE successfully implements the program. Part D 
has the federal government entering into a state compensation system, 
which is inherently an adversarial one. Under the Atomic Energy Act, 
the private contractors who run the nuclear weapons facilities perform 
an inherently governmental function.
    Perhaps it is better to replace part D with a program similar to 
the Federal Employee's Compensation Act, or FECA, to be run out of the 
Department of Labor. Similar to FECA the atomic worker's claims are 
paid for directly by the Federal Government, through the appropriations 
process. I am sure an FECA-like program would eliminate the adversarial 
nature that part D inherently encounters in accomplishing its mission.
    So, let me again thank the witnesses for coming today and I look 
forward to this hearing, and the insight the witnesses have to offer 
here today on this important program.
                                 ______
                                 
       Prepared Statement of Hon. Pete V. Domenici, U.S. Senator 
                            From New Mexico
    Today's hearing is devoted to discussion of the DOE role in the 
Energy Employees Occupational Illness Compensation Program.
    This complex program was created in 2000, with the goal of 
compensating employees of the DOE or its contractors who developed 
illnesses due to their support of the nation's nuclear weapons 
programs.
    The two major parts of the program are administered by two 
agencies, the Departments of Labor and Energy. The part administered by 
Labor is far simpler, and it is progressing at a more rapid rate than 
the part with Energy.
    Some will argue that a ``solution'' is to shift all the 
administration to Labor, and in the course of today's hearing that 
position can be examined.
    From my initial study of the issues in this program, I'm not 
convinced that a simple shift to Labor will solve all the issues. There 
may be fundamental flaws in the legislation which created this program, 
and this hearing should help us understand the range of possible 
remedies that Congress may wish to consider.
    We begin today with Senator Charles Grassley in the first Panel.
    Department of Energy Under Secretary Robert Card will be in the 
second panel.
    In the third panel, we have six witnesses:

   Mr. Robert E. Robertson, Director for Education, Workforce, 
        and Income Security Issues with the U.S. General Accounting 
        Office;
   Dr. John Burton, a Professor at Rutgers University, who was 
        appointed by President Nixon to, and served as Chairman of, the 
        National Commission on state Workmen's Compensation Laws;
   Mr. Leon Owens, President of the Paducah Kentucky Chapter of 
        the PACE union;
   Dr. David Michaels, now a Professor at George Washington 
        University and formerly the Assistant Secretary of Energy for 
        Environment, Safety and Health;
   Mr. Richard Miller, a Senior Policy Analyst with the 
        Government Accountability Project; and
   Mr. Donald Elisburg, an attorney with the AFL-CIO and the 
        Building and Construction Trades Department.

    Statements have also been introduced for the record from Senators 
Voinovich and Kennedy.
                                 ______
                                 
     Prepared Statement of Hon. Tom Harkin, U.S. Senator From Iowa
    Mr. Chairman, I received a letter in December 1997, from Bob 
Anderson, a constituent in Burlington, Iowa. He said that he had been 
diagnosed with non-Hodgkins lymphoma, as were some of the other people 
he had worked with at the Burlington Atomic Energy Commission Plant in 
nearby Middletown, Iowa. At that time, I had no idea the federal 
government had manufactured nuclear weapons in Iowa. Neither did the 
Department of Energy.
    We've been on a long, bumpy road to justice for these workers since 
I got that letter almost six years ago. As it turns out, the Iowa Army 
Ammunition Plant (IAAP) included a nuclear weapons assembly plant from 
1947 to 1975. In 1999, I worked with DOE to include the plant in its 
programs for the nuclear weapons complex and to find, declassify, and 
release thousands of documents about the plant. I brought Secretary 
Richardson to Burlington to listen to the former workers at IAAP and to 
assure them they could talk about problems at the plant. And I have 
worked to change the Pentagon policy that prevents them from even 
admitting that nuclear weapons work went on at the site.
    I've obtained funding for and supported a health study of the 
former nuclear weapons workers conducted by the University of Iowa, 
which is doing an outstanding job of carefully considering this issue, 
and shows tremendous concern and compassion for sick workers.
    I cosponsored the bill to provide compensation of $150,000 and 
health care for workers who were harmed by exposure to radiation at 
IAAP and other nuclear weapons plants, and I continue to press to make 
the program work for Iowa's workers.
    I have been working to speed the cleanup of the IAAP site, and 
worked to get limited sampling that discovered chunks of depleted 
uranium on the ground and a burial site for barium. I persuaded the 
Army to accommodate neighbors, who were worried about the safety of 
their well water, by connecting their houses to the public water 
system.
    Mr. Chairman, I mention all of these things because it's very 
important to look at this matter from a worker's perspective. If I were 
sick with cancer from my job, the role of the Department of Energy in 
the administration of subtitle D of the Energy Employees Occupational 
Illness Compensation Program Act is just another complicated obstacle 
that I don't have the strength to deal with. If I'm sick with cancer, I 
just want my claim processed expeditiously. And I want the area clean 
and safe for my children and grandchildren.
    However, today, the processing of claims under the EEOICPA is the 
topic at hand. There are two main problems with the way that this 
program is affecting the Iowa workers. First, we have a serious problem 
with finding a responsible party to pay claims. It's as though IAAP is 
a ``forgotten site.'' There is no longer a DOE contractor on site. Iowa 
workers compensation (as in most states) has a statute of limitations. 
The only way around this dilemma is to have a ``willing payor,'' which 
normally would be a current DOE contractor that can charge the expense 
to DOE. But there is no such contractor at IAAP.
    DOE has said in the recent past that they are working to find 
creative ways to find payors. However, I have yet to see any proposed 
solutions for Iowa.
    The other major problem--which has also been of great interest to 
my colleague from Iowa, Senator Grassley--is the excessively long time 
DOE is taking to process employee compensation claims. While 90 percent 
of the claims that fall under DOL have been processed (except those 
awaiting action from another agency), a very small percentage of DOE 
claims have been processed. I have worked hard to increase funding, but 
the GAO has clearly stated that more money is not the answer. 
Fundamental changes must take place. Whether that means moving the 
processing to DOL or some other kind of fundamental structural change, 
I do not know. But I would like to see major changes taking place that 
will address this very serious concern.
    Obviously, DOE could be processing all the claims expeditiously. 
But without a two-tiered approach that also solves the ``willing 
payor'' problem, Iowans are still in the same predicament, with no way 
to receive compensation for their illnesses. Late in the last Congress, 
I was pleased to work with Senators Bingaman, Bunning, Allard, Clinton, 
and Reid to introduce a bill that would have designated the Department 
of Labor as the willing payor. I look forward to revisiting this with 
my colleagues in the near future.
    So, Mr. Chairman, I very much look forward to hearing the 
Department's ideas about how it plans, at long last, to process and pay 
these long-delayed claims. I believe that the way these forgotten 
nuclear workers have been treated by our government is truly one of the 
gravest injustices I've seen in my state. People whose only reward for 
years of hard work is illness and premature death cannot and should not 
be disregarded and forgotten by their government.
                                 ______
                                 
      Prepared Statement of Hon. Edward M. Kennedy, U.S. Senator 
                           From Massachusetts
    Today, thousands of brave men and women in uniform are serving our 
country with great courage and dedication in Iraq and many other 
nations, and here at home as well. Our military strength and national 
security depend heavily on them, and also on the efforts of countless 
Americans who help to build our defenses here at home.
    But we have not always given them the support they deserve. For 
decades during the Cold War, hundreds of thousands of workers served 
the United States well in the production of nuclear weapons. But in 
doing so, they were often exposed to radioactive materials and other 
toxic substances whose long-term health affects were poorly understood, 
and many of them contracted disabling and even fatal cancers and other 
serious illnesses.
    In 2000, to respond to this plight, Congress passed the bi-partisan 
Energy Employees' Occupational Illness Program Act to provide fair 
compensation to employees of the Department of Energy or its 
contractors who had suffered because of this exposure.
    Parts of the Act have been a great success. Tens of thousands of 
workers have received needed health care and compensation for their 
illnesses. The Department of Labor has processed over 30,000 claims 
within its area of responsibility, and $710 million in benefits have 
been paid to employees or their survivors.
    The Department of Energy, however, has been far less responsive. By 
earlier this month, it had not even begun processing 14,000 claims--
three-quarters of the total it has received. According to the General 
Accounting Office, it will take the Department seven years to process 
the current backlog. The Department has not identified a willing payor 
for valid claims in many states. As a result, large numbers of workers 
and their families in these states are waiting for the compensation 
they deserve.
    These delays are unacceptable, and I strongly support the 
legislation proposed by Senator Grassley and Senator Murkowski to use 
the expertise and capacity of the Department of Labor to expedite these 
claims. Shifting this responsibility to the Labor Department will not 
resolve all of the problems under the current law but will be a major 
improvement over the current flawed system that is so unfair to these 
dedicated men and women who sacrificed their health and even their 
lives in service to our country. I want the country to do all it can to 
see that they receive as soon as possible the care and compensation the 
nation owes them.
                                 ______
                                 
      Prepared Statement of Hon. Charles E. Schumer, U.S. Senator 
                             From New York
    I have come here today to address the issues surrounding the 
Department of Energy's implementation of the Energy Employees 
Occupational Illness Compensation Program (EEOICP), first enacted three 
years ago to provide compensation to employees of the Department of 
Energy and its contractors who developed illnesses from exposure to 
radiation and other toxic substances.
    The EEOICP was created for the purpose of providing necessary 
compensation to sick workers in a fair and timely manner. However, 
thousands of affected workers in my home state of New York and across 
the country have gone uncompensated, despite filing claims with the 
government under this program.
    Most of these people are suffering from serious illnesses and 
simply do not have the time to sit around waiting for their claims to 
be processed through a system that is clearly broken. These workers 
have been severely harmed by the poor administration of the Energy 
Employees Occupational Illness Compensation Program and it is 
imperative that we make the necessary changes to help these brave 
people.
    Since this program's conception three years ago, the Department of 
Energy-administered portion of this program has processed only 109 out 
of nearly 21,000 applications nationwide. That is a mere 0.5%. To the 
best of my knowledge, none of claims approved by the Physician Panels 
have been paid. DOE has not even begun processing 75% of its claims.
    Currently, the vast majority of New York cases are awaiting 
development despite being filed over two years ago with DOE. In New 
York State, the Physician Panels have not reviewed a single case 
because DOE has deemed all of them ineligible, thus blocking any of 
them from coming before medical doctors for review. I want to know why 
every single claim processed by DOE has been denied a review by a 
physician's panel in 3 years.
    Furthermore, why have no claims been paid to sick New York workers 
in 3 years? A target date from DOE to complete claims for EEOICPA Part 
D needs to be set.
    We need to enact reform that results in greater accountability and 
efficiency. New York is home to 36 sites covered under the Energy 
Employees Occupational Illness Compensation Program. All are either 
atomic weapons employer facilities, DOE facilities or Beryllium 
vendors. Thousands of workers have labored in these plants over the 
decades, yet none have received assistance under DOE's program in New 
York.
    Nationwide, DOE has set up only 10 resource centers to help their 
former employees who have acquired work-related illnesses. However, 
none of these facilities are in New York State. That may be one reason 
why there has been a disproportionately low amount of applications 
filed over the last 3 years from my home state.
    It begs the question, why does New York State have no resource 
centers used for outreach to former employees of DOE when we have the 
most combined DOE and contractor facilities in the country? The closest 
resource center is in Ohio. This is unacceptable.
    New York was at the epicenter of the effort to develop the 
country's nuclear weapons program and provide the deterrent that was 
needed to keep the Soviets at bay during the Cold War. Workers across 
my state, from Niagara and Buffalo to West Valley and Brookhaven, were 
asked to devote themselves to this cause, with no regard to their 
health or safety. Scores of people were exposed to toxic levels of 
radiation and now have cancer.
    To recognize their sacrifice, Congress passed a law to help these 
people cover their medical bills and leave something to their families. 
But the system has apparently failed to implement this law effectively. 
In so doing, it has essentially turned its back on these unsung heroes 
of the Cold War.
    I have traveled to New York and met with these workers and the 
United States government owes them their due in compensation.
    When thousands of people apply to a program and the vast majority 
are rejected, something is not right. The point of this program was to 
say thank you to these people who sacrificed themselves in order to 
protect America.
    We now have the obligation to assist them in gaining compensation 
for their sacrifice. It is my sincerest hope that this hearing will 
serve as a means to creating a program that runs with greater 
efficiency and accountability.
                                 ______
                                 
     Prepared Statement of Hon. George V. Voinovich, U.S. Senator 
                               From Ohio
    Mr. Chairman, I would like to express my appreciation to you for 
holding this hearing this morning to discuss the oversight of the 
Energy Employees Occupational Illness Compensation Program Act 
(EEOICPA).
    Since the end of World War II, at facilities all across America, 
tens of thousands of dedicated men and women in our civilian federal 
and contract workforce helped keep our military fully supplied and our 
nation fully prepared to face any threat from our adversaries around 
the world by developing and building our nation's nuclear weapons 
stockpile. The success of these workers in meeting this challenge is 
measured in part with the end of the Cold War and the collapse of the 
Soviet Union.
    However, for many of these workers, their success came at a high 
price. They sacrificed their health, and even their lives--in many 
instances without knowing the risks they were facing--to preserve our 
liberty. I believe these men and women have paid a high price for our 
freedom, and in their time of need, this nation has a moral obligation 
to provide some financial and medical assistance to these Cold War 
veterans.
    To meet that goal, I worked with a bipartisan group of my 
colleagues three years ago to create a program that would provide 
financial compensation to Department of Energy contract workers whose 
impaired health has been caused by exposure to beryllium, radiation or 
other hazardous substances. Our bill also provides that compensation be 
paid to survivors of workers who have died and suffered from an illness 
resulting from exposure to these substances.
    Under EEOICPA, a federal program was created for workers suffering 
from beryllium disease, silicosis or cancer due to radiation exposure 
because of their work in out national security programs. Workers 
suffering from illnesses due to other chemical exposures are to be 
covered under state workers compensation programs. The Department of 
Energy's Office of Workers' Compensation Advocate was to help employees 
apply for compensation with their particular state's worker 
compensation program.
    The Department of Labor was assigned primary responsibility for 
administering and adjudicating claims for compensation for cancer 
caused by radiation, beryllium disease and certain other conditions 
under Part B of the Act. Part B also tasked the National Institute of 
Occupational Safety and Health with the responsibility to perform dose 
reconstruction for claims of cancer caused by radiation.
    Under Part D, the Department of Energy would assist claimants 
filing for compensation through state worker compensation programs if a 
physicians panel found an occupational illness caused by chemical or 
other toxic exposure at a DOE site. Additionally, DOE was required to 
instruct the DOE operating contractor involved not to contest the 
validity of this claim.
    The compromise package that was ultimately agreed to by Congress 
and signed into law was not what I originally supported. In 2000, I 
introduced S. 2519, which called for a federal program administered 
entirely by the Department of Labor. During congressional negotiations 
on the language authorizing EEOICPA, I agreed to this multi-agency 
concept in order to reach a compromise creating the program.
    I was skeptical of the capability of the Department of Energy to 
administer this program because of their lack of experience in 
administering worker compensation programs. Additionally, I was 
concerned about the role of state Bureau's of Worker Compensation 
outlined in Part D. As a former Governor, I was doubtful that a federal 
program such as this would be able to work with each individual state 
program.
    Three years after enactment, the Department of Energy is 
experiencing significant delays in developing claims. According to 
information released publicly, while almost 21,000 claims have been 
received by the Department, only 800 claims have been developed and 109 
claims have been reviewed by the physicians panels and returned to DOE 
and the claimant. While I recognize that it took time to develop and 
publish the regulations, as long as there are delays in reviewing 
claims, there will continue to be delays in compensating workers who 
are entitled to this compensation.
    I believe that today's hearing is an important step in 
congressional oversight into this program. I am confident that this 
hearing will lead to legislative improvements to the existing program.
    I recently supported Senator Grassley's attempt to move 
administration of Part D from the DOE to the DOL. DOL has significant 
experience in administering worker compensation programs. 
Unfortunately, that language was not included in the Energy and Water 
Appropriations conference report which passed earlier this week.
    Additionally, I believe that Congress must take action to address 
the so-called willing payor issue. I understand that it will be 
difficult for DOE to fulfill congressional intent in Ohio because there 
is not a contractor in place at the sites in Ohio that can be compelled 
to pay the claims. In response, the Ohio Bureau of Workers' 
Compensation (OBWC) has submitted a proposal to the Department 
suggesting that OBWC serve as a contractor for DOE in the absence of a 
viable, self-insured employer contractor. Unfortunately, DOE determined 
that they were unable to enter into such an agreement with a state 
because of limitations in the law. It is imperative that Congress 
consider creative solutions such as this to the willing payor problem 
as we look at the administration of this program.
    I am pleased that the Energy Committee is holding this hearing 
today. I believe it is important for Congress to reconsider the role 
DOE plays in administering EEOICPA. I also firmly believe that 
legislative changes are necessary to address many of the problems my 
constituents, and thousands like them nationwide, have experienced in 
applying for compensation.
    I look forward to working with my colleagues in the coming year to 
address these short-comings in the original bill.
    Thank you.

      STATEMENT OF HON. CHARLES E. GRASSLEY, U.S. SENATOR 
                           FROM IOWA

    Senator Grassley. Thank you very much for holding this 
oversight hearing. This is a first step, I hope, to resolving 
the problems that you have described.
    Congress passed the Energy Employees Occupational Illness 
Compensation Act to provide benefits and compensation to 
employees and contractors of the Energy Department who 
developed cancer. Subtitle B of that act is administered by the 
Department of Labor. It provides a lump sum payment to former 
employees of certain illnesses. Subtitle D is administered by 
the Department of Energy as opposed to the Department of Labor 
in the other case. It is intended to help former employees and 
contractors to file State worker compensation claims for 
illnesses from this exposure.
    The Federal Government's implementation of this program has 
been an insult to the Americans who served our country working 
at this ammunition plants for our military. These people worked 
in ultra-hazardous facilities assembling nuclear deterrent 
during the Cold War.
    There are two facilities in my State of Iowa that are 
covered by subtitle D. To date over 600 claims have been filed 
by former employees of the Army plant located at Middletown, 
Iowa. In Iowa these former ammunition plant workers may have 
been made ill and some of them made terminally ill by exposure 
to toxic substances. To the best of my knowledge, not one of 
these 600 claims has been reviewed by a physicians panel at 
Energy. Instead, Iowans who are sick and battling life-
threatening illnesses are left to wait and rely on what have so 
far been empty promises from the Department.
    The Federal Government has told these veterans of the Cold 
War that help is on the way, but reality is that the prospects 
of meaningful assistance from Energy does not appear any closer 
today than it did the day that Congress passed the law. Let me 
tell you why I say that. According to the information of the 
Department of Energy, between August 2002 year when the 
Department of Energy finalized its rules and April 2003 a mere 
14, just 14, of 15,000 claims had been processed to the 
physicians panel. In addition, in April 2003 the Department of 
Energy had not even touched almost half the 15,000 claims 
because fewer than 15 claims were being processed every week.
    When I learned of this situation in April, I immediately 
contacted Secretary Abraham. He said the goal was to be able to 
render final determination on 100 claims per week by August 
this year. 3 months later in July, I discovered that the 
Department was processing fewer than 40 claims per week. What 
is more, the Department of Energy had by now received almost 
19,000 claims. Of these 19,000 claims, more than 10,000 of them 
had never been touched and only 53 claims had made it to the 
physicians panel.
    So I asked more questions. In late July, Under Secretary 
Bob Card told me that in order to reach the goal of processing 
100 claims a week the Department of Energy would need another 
$20 million on top of the current $16 million. I also learned 
of a separate proposal within the Department of Energy to 
expedite the processing of all the backlog claims by 
reprogramming $43 million.
    Now, this made sense to me until I saw that the Department 
of Energy was still processing claims at an abysmally slow 
rate. On September 15, the General Accounting Office released 
findings from the investigation of the program. The findings of 
the GAO were stunning even though they were, unfortunately, not 
surprising. As of June 30, only 6 percent of the claims had 
been completely processed, more than 50 percent were untouched.
    On top of it all, the GAO said that increased funding alone 
would probably not result in more timely determination. In 
other words, more money was not the solution to the problem of 
endless delays.
    Clearly, the Department of Energy had a substandard 
operation when it came to implementing this compensation 
program. The people Congress wanted to help deserved so much 
better than they got.
    In response, I offered an amendment in September with your 
colleague here Senator Murkowski co-sponsoring the amendment. 
It would have transferred the responsibility for processing 
claims under subtitle D from Energy to the Labor Department. 
There were two main reasons for making this change. One, the 
GAO had told us in its preliminary report that most of the 
claims made to the Department of Energy had also made claims 
with the Department of Labor. Two, the Department of Labor had 
demonstrated its competence in processing claims for four other 
such compensation programs.
    There was strong bipartisan support in the Senate for the 
bill that Senator Murkowski and I had written. We got letters 
to the conferees on behalf of our amendment. Seven Senators 
added their signatures. Those Senators were members of this 
committee as well as others. Unfortunately, we were up against 
opposition from the Department of Energy, its contractor, and 
OMB. We could not overcome that opposition and our amendment 
was knocked out in the conference report.
    The only public statement of opposition made by the Office 
of Management and Budget about the Grassley-Murkowski amendment 
was a letter from the Director to the House Appropriations 
Committee. In an October 16 letter, Director Bolton said: ``The 
subtitle D program should work to help beneficiaries. The 
provisions would create an unworkable and overly complex 
administrative structure that may detract from the program's 
service delivery.''
    Now, remember at the time--remember that at this time the 
Department of Energy has fully processed only 81 of the now 
20,000 claims. The Department of Energy has not even started 
working on more than 74 percent of the claims it has received. 
The General Accounting Office is estimating that the Department 
of Energy is going to need 7 years to work off the backlog. Yet 
we have OMB expressing concern that our amendment would 
``create an unworkable and overly complex administrative 
structure that may detract from the program's service 
delivery.'' Mr. Chairman, that is out of touch with reality.
    I was not willing to give up and I asked the administration 
to commit to a reasonable benchmark if it could not support the 
Grassley-Murkowski amendment. Surely they could agree that the 
Department of Energy needed to demonstrate that it could do a 
better job. A letter from the OMB Director Bolton on November 6 
stated that the Department of Energy had committed to the full 
process--to fully process 25 percent or more of the existing 
part D claims within 6 months of receiving funding for the 
fiscal year.
    So how high is a benchmark of 25 percent in 6 months? It is 
snail's pace. It is an insult to the Americans who worked at 
these plants. It is an insult to their family members who are 
left behind. Processing 25 percent of the claims in 6 months is 
about 156 per week. To clear the backlog, the Department of 
Energy needs to process 288 claims a week. So I am not going to 
applaud the Department of Energy's 6 months down the road 
program because it manages to process just 25 percent of them.
    I hope that the committee is beginning then to understand 
the frustration that I have experienced and Senator Murkowski 
has experienced with the Department of Energy's failure to take 
responsibility for this abysmal performance. I will note that 
it is not just my opinion or even the findings of the General 
Accounting Office. The Department of Energy hired an 
independent consultant, the Hays Group, to assess the 
compensation program and to make recommendations for 
improvement. The findings of the Hays Group further reinforced 
the need to move claims processing from the Department of 
Energy to the Department of Labor, as the Grassley-Murkowski 
amendment sought to do.
    Many of the nearly 50 recommendations in the draft Hays 
report are what I call no-brainer recommendations. Overall, the 
Hays report says this compensation program was set up all wrong 
in the first place and it is too late to fix it, so now we have 
to make do with some sort of a flawed system. The Hays report 
says that the Department of Energy uses at least three 
different computer systems to process claims, but those 
computer systems do not talk to each other.
    In addition, the Hays report debunks one of the myths used 
to oppose the Grassley-Murkowski domestic. Some argued that my 
amendment would not help the supposed backlog at the physicians 
panel. The draft report found that only 60 of the 105 doctors 
available for the physicians panel were working. I do not know 
why you have a backlog when about half of the doctors do not 
have to work to do it.
    Finally, the report says ``When making recommendations for 
the system, we cannot focus on a simply amplification of 
resources in the existing process.'' The statement is 
consultant-speak for, in my words, more money alone is not 
going to fix the problem.
    I have dedicated a majority of my time today to describe 
what I believe are fundamental flaws in the Department of 
Energy's ability to process claims efficiently and effectively. 
Unfortunately, there are other problems. One of those is the 
matter of a lack of a willing payor in many States, including 
my State of Iowa. The lack of a willing payor likely will 
prevent a significant number of eligible claimants ever 
receiving compensation.
    First, we need to get to the bottom of the problem created 
by the bureaucratic maze at the Department of Energy. The 
bottom line is that they are ill equipped to deal with this 
compensation program. It has demonstrated that time and again.
    I am willing to keep challenging bureaucrats, fighting for 
amendments, and making the case to leaders who serve on this 
committee as long as it takes. In the meantime, we have former 
nuclear ammunition plant workers and their survivors who do not 
have the help they are owed or even an answer of yes or no, and 
that is not right.
    Again, this hearing is an important step forward and I 
thank you for having it.
    [The prepared statement of Senator Grassley follows:]
            Prepared Statement of Hon. Charles E. Grassley, 
                         U.S. Senator From Iowa
    Thank you for holding this oversight hearing and inviting my 
testimony. Chairman Domenici and others on your committee have 
expressed their commitment to resolving problems with the Energy 
Employees Occupational Illness Compensation program. This hearing is a 
first step. In addition to my testimony, I would like to respond to 
questions that anyone on this committee has for me in writing.
    Congress passed the Energy Employees Occupational Illness 
Compensation Act of 2000 to provide benefits and compensation to 
employees and contractors of the Department of Energy who developed 
cancer and other illnesses after they were exposed to toxic substances 
or radiation through their work. Subtitle B of that act is administered 
by the Department of Labor. It provides a lump-sum payment to former 
employees and contractors for certain illnesses.
    Subtitle D is administered by the Department of Energy. It is 
intended to help former employees and contractors to file state workers 
compensation claims for illnesses that were caused by exposure to toxic 
substances. The subject of today's hearing is Subtitle D and 
mismanagement of it by the Department of Energy. The federal 
government's implementation of this program has been an insult to the 
Americans who served our country working the ammunition plants of the 
U.S. military. These people worked in ultra-hazardous facilities 
assembling our nation's nuclear deterrent during the Cold War.
    There are two facilities in Iowa that are covered under Subtitle D 
of the Act. There are many more in at least 15 other states across the 
country. To date, over 600 claims have been filed by former employees 
of the Army Ammunition Plant located in Middletown, Iowa. In Iowa, 
these former ammunition plant workers may have been made ill--and some 
of them made terminally ill--by exposure to toxic substances at the 
plant. To the best of my knowledge, not one of these 600 claims has 
been reviewed by a physician panel of the Department of Energy. 
Instead, the Iowans who are sick and battling life-threatening 
illnesses are left to wait and rely on what have so far been empty 
promises from the Department of Energy.
    The federal government has told these veterans of the Cold War that 
help is on the way. But the reality is that the prospect of meaningful 
assistance from the Department of Energy does not appear any closer 
today that it did the day Congress passed the law.
    Let me tell you why I say that. According to information from the 
Department of Energy, between August 2002--when the Department of 
Energy finalized its rule and April 2003, a mere 14 of 15,000 claims 
had been processed to the physician panels. In addition, on April 1, 
2003, the Department of Energy had not even touched almost half of the 
15,000 claims because fewer than 15 claims were being processed every 
week. At that rate, it would take about 20 years for the Department of 
Energy to get through these claims. That's unacceptable.
    When I learned of this situation in April, I immediately contacted 
the Secretary of Energy. I wanted to let him know that the situation 
had to be fixed and that I wanted to help fix it. Secretary Abraham 
expressed his support for the program and his commitment to fully 
implement the law in a way that was both efficient and effective. He 
also said that the Department of Energy had made progress in developing 
a system to gather information and process applications. He said the 
goal was to be able to render final determinations on 100 claims per 
week by August 2003.
    Three months later, in July, I discovered that the Department of 
Energy was processing fewer than 40 claims a week. What's more, the 
Department of Energy had by now received almost 19,000 claims 
altogether. Of these 19,000 claims, more than 10,000 of them had never 
been touched. And, only 53 claims had made it to the physician panels.
    So I asked more questions. In late July, Energy Under-Secretary Bob 
Card told me that in order to reach the goal of processing 100 claims a 
week, the Department of Energy would need another $20 million on top of 
its current budget of $16 million. I also learned of a separate 
proposal within the Department of Energy to expedite the processing of 
all the backlogged claims by re-programming $43 million. This proposal 
said that by using $16 million in fiscal year 2004 funds plus $43 
million in reprogrammed funds, the Department of Energy could clear 
every claim in one year. Now this made sense to me until I saw that the 
Department of Energy was still processing claims at an abysmally slow 
rate.
    On September 15, the independent General Accounting Office released 
preliminary findings from its investigation of the program. Subtitle D 
required that the General Accounting Office assess the effectiveness of 
the benefit program. I had also asked the General Accounting Office to 
look at the program and the Department of Energy's performance. The 
findings of the General Accounting Office were stunning even though 
they were unfortunately not surprising. As of June 30, only six percent 
of claims had been completely processed. More than 50 percent were 
untouched. More than 90 percent of claims filed after September 2002 
remain untouched.
    On top of it all, the General Accounting Office said that increased 
funding alone would probably not result in more timely determination. 
In other words, more money was not the solution to the problem of 
endless delays.
    Clearly, the Department of Energy had a sub-standard operation when 
it came to implementing this important compensation program. The people 
Congress wanted to help deserved so much better.
    In response, I offered an amendment in September to the Energy and 
Water appropriations bill. Sen. Lisa Murkowski co-sponsored this 
amendment. It would have transferred the responsibility for processing 
claims under Subtitle D from the Department of Energy to the Department 
of Labor. There were two main reasons to make this change. One, the 
General Accounting Office had told us in its preliminary report that 
most of the claims made to the Department of Energy had also made 
claims with the Department of Labor. Two, the Department of Labor had 
demonstrated its competence in processing claims for four other such 
compensation programs. For example, under Subtitle B of the Energy 
Employees Occupational Illness Compensation program, the Department of 
Labor has closed more than 94 percent of the 35,000 cases filed.
    The Grassley-Murkowski amendment was accepted by the two managers 
of the appropriations bill. They agreed to both authorize and fund the 
Department of Labor to administer Subtitle D. They agreed that the 
Department of Energy should transfer every record to the Department of 
Labor. The Senate voted on the bill and we continued to fine tune the 
amendment so that there would be no delay in transferring these 
responsibilities. We worked hard to accommodate the technical 
recommendations made by officials from the Department of Labor. We 
wanted to make sure the amendment was just right.
    By this time, there was strong bipartisan support in the Senate for 
making this transfer. Sen. Murkowski and I wrote a letter to conferees 
on behalf of our amendment, and seven senators added their signatures 
to our letter. Those senators were Sens. Voinovich, Bunning, Bingaman, 
Cantwell, DeWine, Kennedy and Hollings. I ask that our letter be placed 
in the committee record.*
---------------------------------------------------------------------------
    * The letter has been retained in committee files.
---------------------------------------------------------------------------
    Unfortunately, we were up against opposition from the Department of 
Energy, its contractor and the Office of Management and Budget. We 
could not overcome that opposition, and our amendment was knocked out 
of the conference report.
    The only public statement of opposition made by the Office of 
Management and Budget about the Grassley-Murkowski amendment was a 
letter from the director to the House Appropriations Committee 
Chairman. In an October 16 letter, Director Bolton said that the 
administration would object strongly if our amendment was included in 
the final bill. His letter said, ``The Subtitle D program should work 
to help beneficiaries, but the provision would create an unworkable and 
overly complex administrative structure that may detract from the 
program's service delivery.''
    Now, remember that at this time the Department of Energy has fully 
processed only 81 of the now 20,000. The Department of Energy hasn't 
even started what it calls claims development on more than 74 percent 
of the claims it had received. The General Accounting Office is 
estimating that the Department of Energy is going to need seven years 
to work off the backlog. Yet, we have the Office of Management and 
Budget expressing concern that our amendment would ``create an 
unworkable and overly complex administrative structure that may detract 
from the program's service delivery.'' Mr. Chairman, that is out of 
touch with reality.
    I wasn't willing to give up, and I asked the administration to 
commit to a reasonable benchmark if it could not support the Grassley-
Murkowski amendment. Surely they could agree that the Department of 
Energy needed to demonstrate that it could do a better job. I got a 
response on November 6 in a letter from the Office of Management and 
Budget. Director Bolten wrote that the Department of Energy had 
committed to fully process 25 percent or more of the existing Part D 
claims within six months of receiving funding for fiscal year 2004.
    Now, keep in mind that the Department of Energy had said in July 
that its goal was to process all 15,000 backlogged claims in one year 
by reprogramming $43 million. Congress had already approved $9.7 
million and is likely to approve the remaining $33 million request when 
it's received. At this rate, one might expect the Department of Energy 
to process all claims in one year.
    So, how high is a benchmark of 25 percent in six months? It's a 
snail's pace. It's an insult to the Americans who worked in these 
plants. It's an insult to their family members who are left behind. 
Processing 25 percent of claims in six months is about 156 claims a 
week. To clear the backlog, the Department of Energy needs to process 
288 claims a week. So, I'm not going to applaud the Department of 
Energy six months down the road because it manages to process 25 
percent of the claims. Instead, I'm going to ask the Department of 
Energy how it intends to process an average of 469 claims a week during 
the next six months to clear the backlog within its own time line.
    I hope that the committee is beginning to understand the 
frustration I've experienced with the Department of Energy's failure to 
take responsibility for its abysmal performance. I'll note that it' not 
just my opinion or even the findings of the General Accounting Office.
    The Department of Energy hired an independent consultant, the Hays 
Group, to assess this compensation program and make recommendations for 
improvements. The findings of the Hays Group further reinforce the need 
to move claims processing from the Department of Energy to the 
Department of Labor, as the Grassley-Murkowski amendment sought to do.
    Many of the nearly 50 recommendations in the draft Hays report are 
what I call no-brainer recommendations. It's fair to ask why the 
Department of Energy and its contractor haven't been doing these things 
from the beginning.
    Overall, the Hays report says this compensation program was set up 
all wrong in the first place, but it's too late to fix it, so now we 
have to make do with a flawed system. The Hays report says that the 
Department of Energy uses at least three different computer systems to 
process claims, but those computer systems don't talk with each other. 
Does that make any sense?
    In addition, the Hayes Report debunks one of the myths used to 
oppose the Grassley-Murkowski amendment to move responsibility for 
processing claims to the Labor Department. Some argued that my 
amendment would not help the supposed backlog at the physician panels. 
Well, first, my amendment moved those panels to the Labor Department 
where they would be managed better. More importantly, the draft report 
found that only 60 of the 105 doctors available for the physician 
panels were working. I don't know why you have a backlog when about 
half the doctors don't have work to do.
    Finally, the report states, ``when making recommendations for the 
system, we can't focus on a simple amplification of resources in the 
existing process.'' That statement is consultant-speak for ``more money 
alone is not going to fix the problem.''
    I've dedicated a majority of my time today to describe what I 
believe are the fundamental flaws in the Department of Energy's ability 
to process claims both efficiently and effectively. Unfortunately, 
there are other problems with this compensation program. One of those 
is the matter of a lack of a ``willing payor'' in many states, 
including Iowa. The lack of a ``willing payor'' likely will prevent a 
significant number of eligible claimants from ever receiving 
compensation.
    But first we need to get to the bottom of the problem created by 
the bureaucratic maze that the Department of Energy has created. The 
bottom line is that the Department of Energy is ill-equipped to deal 
with this compensation program. It has demonstrated that reality time 
and again. I'm willing to keep challenging bureaucrats, fighting for 
amendments and making the case to the leaders who serve on this 
committee as long as it takes. But in the meantime, we have former 
nuclear ammunition plant workers and their survivors who don't have the 
help their owed or even an answer yes or no. That's not right.
    Again, this hearing is an important step forward. The expert 
witnesses you've assembled will provide important testimony. I look 
forward to continuing to work with you and with the administration to 
fix this program. Thank you for the opportunity to testify today.

    Senator Bunning. Thank you, Chairman Grassley. We 
appreciate your testimony.
    Senator Grassley. Thank you very much.
    Senator Bunning. Now we will finish with our opening 
statements. Senator Murkowski, do you have an opening statement 
that you would like to present?
    Senator Murkowski. I do.

        STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR 
                          FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman. I appreciate 
you holding the hearing this morning.
    I would like to thank Chairman Domenici and certainly 
Senator Grassley for all of his hard work on this. As the 
chairman undoubtedly knows from my contacts with him and from 
numerous discussions between staff, this is a very important 
issue to me and to many Alaskans, and it was for this reason 
that I very willingly have been working with Senator Grassley 
to co-sponsor this Grassley-Murkowski amendment.
    This amendment is intended to address one of the two major 
failures in the implementation of the Energy Employees 
Occupational Illness Compensation Act. That is the extremely 
slow pace of processing by the Department of Energy of claims 
filed under subtitle D of that act. If we are not able to pass 
the Grassley-Murkowski amendment this session, I expect that we 
will return to this issue certainly in January.
    The other critical problem with the act, one which we must 
also address and Senator Grassley mentioned at the end of his 
comments, is this willing payor issue. We must make sure that 
claimants found eligible for benefits are promptly compensated. 
Currently we have Alaskans who are found eligible for 
compensation, they are finding that their claims are being 
aggressively contested by attorneys for the insurance companies 
of the DOE's Amchitka contractors.
    When we look at who these Alaskan claimants are, they are 
older widows of Amchitka workers or seriously ill former 
workers. They are facing countless hours of depositions, 
prehearings, document requests, and other litigation tactics. 
In many cases we have had Alaskans dying while waiting for 
their claims to be resolved. Essentially, they are being 
litigated to death, which is absolutely unacceptable, just 
unacceptable.
    Now, Mr. Chairman, Senator Grassley spoke as well as you 
did about some of just the cold hard numbers that are involved 
here, the number of claims that have been submitted versus the 
number of claims that have actually been processed. When we 
look at the numbers and the statistics, they are not 
acceptable. They do not work.
    But rather then reiterating some of the facts that you have 
mentioned and that have been mentioned by Senator Grassley, I 
want to put on the record this morning a more personal set of 
facts. I want to read some excerpts quickly from one survivor 
of a nuclear worker from Alaska. This is a woman by the name of 
Sylvia Carlson. Mrs. Carlson's husband was a mineshaft worker 
on the Project Canakin at the Amchitka nuclear test site in 
1970-71. He was exposed to ionizing radiation in the course of 
his employment for a prime contractor of the Atomic Energy 
Commission. He was 32 years old at the time of his exposure. He 
died before his 41st birthday in 1979 of colon cancer.
    Mrs. Carlson filed a Congress for workers comp under the 
Alaska Workers Comp Act, as suggested by DOE. I am going to 
quote from her statement, which I will ask the chairman to 
include in the record for this hearing. I will also ask the 
chairman to include a similar statement from Bev Ellick, who is 
another widow of an Amchitka worker.
    Mrs. Carlson says this:

    I was assured by DOE that the contractor would be notified 
and asked to accept primary liability for my claim and would 
also be asked not to raise any affirmative defenses in my case. 
The exact opposite of DOE's letter and determination occurred. 
My workers compensation claim is being aggressively opposed by 
two different attorneys representing two different insurance 
carriers, the contractor and adjusters.
    I requested information from DOE Secretary Abraham about 
DOE's not contacting the contractor. I did not receive an 
answer to my inquiry. I was informed 6 months after my inquiry 
via e-mail from Tom Rello, Director, Office of Worker Advocacy, 
that his office would not be able to give further assistance.
    In the meantime, I have spent countless hours in 
depositions, prehearings, conferences, and meetings in defense 
of my workers compensation claim. I have also had to meet 
demands from opposing counsel for volumes of documents, which 
has imposed a financial burden on me. If the Alaska Workers 
Compensation Board rules in my favor, I have been assured that 
the opposing attorneys fully intend to appeal the decision to 
Alaska's Supreme Court, thus tieing up my claim for at least 2 
to 4 years.

    This has been the experience of an Alaska widow of a 
nuclear test facility worker. Her claim--Mrs. Carlson was found 
eligible for compensation. Her husband's illness and death was 
determined to have resulted from his work at Amchitka. This 
kind of treatment was not what Congress had contemplated for 
survivors when it passed the act.
    Mrs. Carlson further goes on to state:

    Since January 2003, nine former Amchitka workers have died, 
all of cancer, and none to my knowledge have received benefits 
under subtitle D. The tragedy is that many more will follow. I 
am aware of at least 150 claimants who are awaiting responses 
from DOE. Opposing attorneys are not even waiting for those 
claimants to receive a physicians panel determination. A number 
of Amchitka claimants have been receiving demands for medical 
records, for social security records, for other information, 
and many of those claimants are very ill and unable to respond.
    Over 90 days ago, seven Amchitka claimants were told by DOE 
that they would be receiving their physicians panel 
determinations within a few days. Since then DOE has told each 
a different story, i.e., the physician doing the determination 
is ill, the physician reviewing your case died, the person 
handling your case went on vacation, and we cannot find your 
records.
    I would like to reiterate that nearly all the Amchitka 
claimants are ill with cancer, many unable to even make 
inquiries about the status of their claims, and all are being 
completely stressed by the tactics used by the opposing 
attorneys.

    Mrs. Carlson concludes her statement by contrasting DOE's 
claims processing with that of Department of Labor and she 
says:

    In direct contrast to DOE's lack of performance under the 
act, the Department of Labor has managed its obligations under 
subtitle B with professionalism, sensitivity, and rapid 
response. For example, the Department of Labor became aware 
that Amchitka workers were experiencing problems with the 
medical cards it had issued to some of the claimants. DOL sent 
two of its staffers to Anchorage to resolve the problem.
    In addition, when the DOL Director was informed that 
opposing attorneys in my case were raising affirmative defenses 
that involved subtitle D payments, he offered to send his legal 
counsel to Anchorage for the hearing. The law is quite clear 
that subtitle B payments are not considered offsets. However, 
opposing attorneys in my case are pressing the issue.
    DOL representatives have not only been responsive to 
claimants, but, unlike DOE representatives, they have been 
honest and willing to assist wherever they can. Had DOL been 
given the responsibility for implementing the act, including 
processing of claims and resolving the willing payor issue, we 
would not be talking about the problems right now.

    Mr. Chairman, I do have a full text of my comments which I 
would like to have submitted for the record, as well as the 
full statement of Mrs. Carlson and Mrs. Bev Ellick.
    When we talk about the statistics, which are very, very 
compelling, we also need to recognize that behind each 
statistic is somebody who is trying to get their claim 
processed and to get on with their life, and that is what this 
legislation needs to do.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Murkowski follows:]
  Prepared Statement of Hon. Lisa Murkowski, U.S. Senator From Alaska
    I'd like to thank Chairman Dominici for holding this hearing today 
on the implementation of the Energy Employees Occupational Illnesses 
Compensation Program Act. As the Chairman undoubtedly knows from my 
contacts with him and from the numerous discussions between our staffs, 
this is a very important issue to me and to many Alaskans. In fact, the 
importance of this issue led me to co-sponsor the Grassley-Murkowski 
amendment. The Grassley-Murkowski amendment is intended to address one 
of the two major failures in the implementation of the Energy Employees 
Compensation Act; that is, the extremely slow pace of processing by the 
Department of Energy of claims filed under Subpart D of that Act. If we 
are unable to pass Grassley-Murkowski this session, I expect we will 
address this issue when we return in January.
    The other critical problem with the Act--one which we must also 
address--is the so-called ``willing payor'' issue. That is, we must 
make sure that claimants found eligible for benefits are promptly 
compensated. Currently, Alaskans who are found eligible for 
compensation are finding their claims aggressively contested by 
attorneys for the insurance companies of the DOE's Amchitka 
contractors. And who are these Alaskan claimants? In many cases these 
are older widows of Amchitka workers or seriously ill former workers 
who are facing countless hours of depositions, prehearings, document 
requests and other litigation tactics by well financed insurance 
defense counsel. In a number of instances, Alaskans have died while 
waiting for their claims to be resolved. They are quite literally being 
litigated to death. This is simply unacceptable. Let me repeat--this is 
unacceptable.
    Mr. Chairman, as you know, we recently spent many days in this room 
debating various provisions of the Energy bill. We talked about the 
repeal of the Public Utility Holding Company Act and changes to certain 
provisions of the Public Utility Regulatory Policies Act. We discussed 
standard market design, RTOs, participant funding and--protecting 
native load. These are complex issues. Often, detailed economic theorem 
and modeling are helpful in understanding these matters. Indeed, we 
heard credible, persuasive and often opposing arguments on both sides 
of these issues.
    Mr. Chairman, the Energy Employees Act is not complex. The facts 
concerning its implementation are not convoluted. Economic modeling is 
not necessary to understand what must be done. It is simply a matter of 
what is right. Alaskans--and citizens of many other states in our 
nation worked in nuclear facilities owned by the federal government in 
past decades. Their efforts helped America win the Cold War. Many of 
them have become ill and many have died as a result of their work in 
these facilities. Our nation owes them a debt of gratitude.
    Congress clearly recognized this when it passed the Energy 
Employees Occupational Illness Compensation Program Act. Sadly, the 
implementation of a portion of that Act--Subpart D--has not been 
consistent with what is right and what Congress intended when it passed 
the Act. These workers and their survivors are entitled to far better 
treatment then many of them have endured.
    Mr. Chairman, I generally don't like to talk about cold, hard 
numbers; particularly when we have an issue that has had such a 
devastating personal impact on so many Alaskans and other Americans. 
However, I believe that briefly discussing some cold, hard facts will 
help my colleagues understand why this issue is so important to me and 
why I co-sponsored the Grassley-Murkowski amendment.

   The Energy Employees Occupational Illnesses Compensation 
        Program Act was passed in 2000. The Department of Labor 
        implements Subpart B of the program and the Department of 
        Energy implements Subpart D.
   In March 2003, DOE committed to the House Energy & Commerce 
        Committee that it would be processing 100 claims per week by 
        August 2003.
   As of October 10, 2003, DOE had sent only a total of 81 
        claims, that is less than 4/10ths of one percent, through its 
        physicians panels for a final determination out of over 20,000 
        claims DOE has received--while spending around $15 million on 
        the program.
   DOE has not even commenced claims development on more than 
        74%--over 15,000, of the claims it has received.
   The GAO estimates DOE will need 7 years to work off its 
        backlog.
   Conversely, the Department of Labor has completed processing 
        work on almost 95% of the approximately 35,000 cases filed 
        under Subpart B.

    I recognize that the DOE just issued a press release saying they 
processed 106 claims last week and assigned responsibility for this 
program to Undersecretary Card. While this is encouraging, it is only 
one week's total. Even if the DOE is able to continue at this rate, it 
will still take them almost 4 years to complete their current backlog 
of claims.
    Enough cold, hard facts. Let me tell you about one survivor of a 
nuclear worker from Alaska. Her name is Sylvia Carlsson. Ms. Carlsson's 
husband was a mine shaft worker on the Project Cannikin at the Amchitka 
nuclear test site in 1970 and 1971. He was exposed to ionizing 
radiation in the course of his employment for a prime contractor of the 
Atomic Energy Commission. He was 32 years old at the time of his 
exposure. He died before his 41st birthday in 1979 of colon cancer. Ms. 
Carlsson filed a claim for workers compensation under the Alaska 
Workers Compensation Act as suggested by DOE. Let me quote from her 
statement which I will ask the Chairman to include in the record of 
this hearing. I will also ask the Chairman to include a similar 
statement from Bev Aleck, another widow of an Amchitka worker. Ms. 
Carlsson states:

          I was assured [by DOE] that the contractor would be notified 
        and asked to accept primary liability for my claim and would 
        also be asked not to raise any affirmative defenses in my case. 
        The exact opposite of DOE's letter and determination occurred. 
        My workers compensation claim is being aggressively opposed by 
        two different attorneys representing two different insurance 
        carriers, the contractor and adjusters. I requested information 
        from DOE Secretary Abraham about DOE's not contacting the 
        contractor. I did not receive an answer to my inquiry. I was 
        informed six months after my inquiry via e-mail from Tom 
        Rollow, Director, Office of Worker Advocacy that his office 
        would not be able to give further assistance.

    Ms. Carlsson continues:

          In the meantime, I have spent countless hours in depositions, 
        prehearings conferences and meetings in defense of my workers 
        compensation claim. I have also had to meet demands from 
        opposing counsel for volumes of documents which have imposed a 
        financial burden on me. . . . If the Alaska Workers 
        Compensation Board rules in my favor, I have been assured that 
        the opposing attorneys fully intend to appeal the decision to 
        Alaska's Supreme Court, thus tying up my claim for at least two 
        to four years.

    This has been the experience of an Alaskan widow of a nuclear test 
facility worker. Please remember, Ms. Carlsson was found eligible for 
compensation under the Energy Employees Compensation Act. Her husband's 
illness and death was determined to have resulted from his work at 
Amchitka. This was not the treatment Congress contemplated for 
survivors when it passed the Act.
    Ms. Carlsson also discusses another issue important to this today's 
hearing. Her statement helps explains why I co-sponsored the Grassley-
Murkowski amendment. As Ms. Carlsson states:

          Since January 2003, nine former Amchitka workers have died, 
        all of cancer and none to my knowledge having received benefits 
        under Subtitle D of the EEOICPA. The tragedy is that many more 
        will follow. I am aware of at least 150 claimants who are 
        awaiting responses from DOE. Opposing attorneys are not even 
        waiting for those claimants to receive a Physician's Panel 
        Determination. A number of Amchitka claimants have been 
        receiving demands for medical records, for social security 
        records, for other information and many of those claimants are 
        very ill and unable to respond.
          Over 90 days ago, seven Amchitka claimants were told by DOE 
        that they would be receiving their Physician Panel 
        Determinations within a few days. Since then, DOE has told each 
        a different story, i.e., the physician doing the determination 
        is ill; the physician reviewing your case died; the person 
        handling your case went on vacation and we can't find your 
        records. I would like to reiterate that nearly all the Amchitka 
        claimants are ill with cancer, many unable to even make 
        inquiries about the status of their claims and all are becoming 
        completely stressed by the tactics used by the opposing 
        attorneys.

    Ms. Carlsson concludes her statement contrasting DOE's claim's 
processing with that of Department of Labor:

          In direct contrast to DOE's lack of performance under the 
        EEOICPA, the Department of Labor has managed its obligations 
        under Subtitle B with professionalism, sensitivity and rapid 
        response. For example, the Department of Labor became aware 
        that Amchitka workers were experiencing problems with the 
        medical cards it had issued to some of the claimants. DOL sent 
        two of its staffers to Anchorage to resolve the problems.
          In addition, when the DOL Director was informed that opposing 
        attorneys in my case were raising affirmative defenses that 
        involved Subtitle B payments, he offered to send his legal 
        counsel to Anchorage for the hearing. The law is quite clear 
        that Subtitle B payments are not considered offsets; however, 
        opposing attorneys in my case are pressing the issue. DOL 
        representatives have not only been responsive to claimants, but 
        unlike DOE representatives, they have been honest and willing 
        to assist wherever they can. Had DOL been given the 
        responsibility for implementing the EEOICPA including 
        processing of claims and resolving the Willing Payer issue, we 
        would not be talking about the problems right now.

    Mr. Chairman, as I said at the beginning of my statement, I 
appreciate your holding this hearing. I look forward to hearing the 
witnesses testimony. However, after the hearing it is time for prompt 
action. We must address both the claims processing and the willing 
payor issues. The workers and their survivors deserve no less.

    Senator Bunning. Without objection, your full statement 
will be put into the record.
    I would like to suggest that anyone who has a cell phone on 
either turn it off or leave the hearing, because we do not 
appreciate them going off and being answered during a hearing.
    Senator Talent, you are up.

        STATEMENT OF HON. JAMES M. TALENT, U.S. SENATOR 
                         FROM MISSOURI

    Senator Talent. Mr. Chairman, I had an opening statement 
prepared, but unfortunately it simply recounts a lot of the 
same facts and statistics with regard to Missouri people as we 
have already heard from Senator Grassley and Senator Murkowski, 
and I am not going to take the time of the subcommittee by 
doing that. I will just sum it up by saying in Missouri we have 
had 520 claims filed, some of them from people who were exposed 
to radiation of up to 2,400 times what would be considered 
acceptable today. 14 of those claims have been completed, which 
is at the 3 percent level. That is lower even than the national 
average.
    You know, the only thing I can say, Mr. Chairman, it 
reminds me of the situation that we used to have with the 
Department of Veterans Affairs when we had such a long backlog 
in processing disability claims by veterans with service-
connected disabilities, and the rather dark joke in the 
veterans community was what they were doing was spinning out 
the claims long enough, hoping that all the claimants would die 
and then they would not have to pay anything.
    Now, Secretary Principi has done a great job of reducing 
that backlog at Veterans Affairs. I am hopeful of seeing the 
same kind of response and vigor in the Department of Energy in 
response to this problem, which obviously exists and which we 
are all talking about.
    I would just like to ask unanimous consent that my full 
statement be put in the record, Mr. Chairman, along with an 
article from the St. Louis Post-Dispatch about the situation 
for former employees of the Mallinkrodt Chemical Company.
    [The prepared statement of Senator Talent follows:]

 Prepared Statement of Hon. James M. Talent, U.S. Senator From Missouri

    Mr. Chairman: .Thank you for holding a much-needed hearing 
on the Department's E-E-O-I-C-P. This is an issue of great 
importance to me because it affects so many Missourians. In 
Missouri, 520 claims have been filed. Only 14 have been 
completed. In two years, only 14 have been completed.
    I have real concerns regarding the pace at which the 
Department of Energy (DOE), Department of Labor (DOL), and the 
National Institute for Occupational Safety and Health (NIOSH) 
are processing these claims.
    Over the past few months, I have received many complaints 
from former workers at Mallinckrodt Chemical Co. in St. Louis 
who received doses of radiation up to 2,400 times those 
considered acceptable today. These workers were exposed, in 
most instances unknowingly, to dangerous levels of radiation. 
Many of those who eventually developed cancer have already died 
before they could be compensated for their illness.
    I have a recent article from the St. Louis Post-Dispatch 
that outlines the lax safety precautions at the plant. I would 
like to submit this for the record.
    When this legislation passed, it was a great victory for 
these workers. However, government bureaucracy and red tape are 
preventing these individuals from obtaining the compensation 
that, without question, they deserve. There is no reason why, 
after two years, only 14 of 520 claims have been completed in 
Missouri. There is no reason why only six percent have been 
completed nationally. I recognize that many of these claims 
require some measure of research to verify or deny a worker's 
claim, but when less than three percent of the claims filed in 
my state have been completed in two years, that is inexcusable.
    The Department's record here, tragically, reminds me of the 
backlog on disability claims filed by veterans to the 
Department of Veterans Affairs. The backlog prior to Sec. 
Principi's tenure was so bad that the dark joke among older 
veterans was that the Department was waiting them out, hoping 
they would pass away before the claims process, which 
oftentimes ran on for years, was completed. We must ensure that 
situation does not occur here.
    I look forward to the testimony today and I look forward to 
continuing to monitor this important issue.

               St. Louis Post-Dispatch, October 30, 2003

    Cold War-era nuclear workers at Mallinckrodt Chemical Co. 
in St. Louis received doses of radiation up to 2,400 times 
those considered acceptable today, according to an 
unprecedented government report.
    As high as that level is, incomplete data means that actual 
exposure levels at the defunct nuclear fuel facility north of 
downtown may have been even worse.
    Dusty, sloppy and hazardous conditions were routine at 
Mallinckrodt's uranium-processing plant, which operated from 
1942 to 1957, according to a report presented at a meeting in 
St. Louis on Wednesday. One section describes a worker scooping 
uranium by hand with a piece of cardboard because mechanized 
equipment had failed.
    ``I would characterize this as a pretty messy operation,'' 
said Jim Neton, a health physicist with the National Institute 
for Occupational Safety and Health, which ordered the report as 
part of a federal nuclear workers' compensation program.
    No more detailed collection of data about radiation 
exposure at the site has ever been produced. The 125-page 
document will help determine whether hundreds of sick, aging 
Mallinckrodt workers, some of whom are still living in Missouri 
and Illinois, are eligible for $150,000 payments under the 
program.
    Radiation has been linked to many types of cancer, even 
years after exposure. Despite the level of detail in the 
report, worker advocates and some officials said Wednesday that 
the report missed key information that could have revealed even 
more dangerous conditions.
    A contractor relied on company data and government 
documents to create the report, but did not interview thousands 
of former workers or their survivors. Some workers claim their 
employer covered up accidents and fudged radiation tests.
    Additionally, the report acknowledges that workers were not 
monitored for radiation exposure at all in the first three 
years the plant was open, from 1942 to 1945. Only sketchy data 
exists for the next two years, until a full-scale health 
program was implemented in 1948.
    Worker interviews should be factored into site profiles, an 
advisory panel overseeing the workers' compensation program 
said Wednesday. The Advisory Board on Radiation and Worker 
Health voted to ask NIOSH to develop a process for soliciting 
worker input before the profiles are released.
    Failing to interview workers for the, reports ``seriously 
undermines the credibility'' of the workers' compensation 
program, said board member Dr. James Melius, director of the 
New York State Laborers Health and Safety Trust Fund.
    The occupational safety institute already has released four 
site profiles and has 15 more pending. About 350 former nuclear 
sites nationwide are part of the compensation program, 
including eight other sites in the St. Louis region.
    ``The goal is to put these (site profiles) out as quickly 
as possible,'' said Larry Elliott, director of the Office of 
Compensation Analysis and Support within NIOSH. The sooner the 
site profiles are completed, the sooner claimants can get paid, 
he said.
    Elliott called the site profile a ``living document'' and 
said that public comments are welcome.
    Dolores Stuckenschneider, 68, of Ballwin, is one of the ex-
workers who doesn't trust data collected by Mallinckrodt and 
the government. Stuckenschneider worked for nine years as a 
clerk at Mallinckrodt's downtown plant and at a plant at Weldon 
Spring. She was diagnosed with breast cancer in 1985.
    According to the site profile, clerks like Stuckenschneider 
were assumed to work in an office and spend ``some time'' in 
the uranium production area. That description may not account 
for the polluted air and dust that Stuckenschneider said she 
encountered daily. ``Every day, we had dust half an inch thick 
on our desks we had to clean off,'' she said at the meeting.
    The plant was ``as dusty as the dickens, and all we had was 
dust masks,'' said Bob Leach, a former worker who also lives in 
Ballwin. Leach said federal officials couldn't possibly create 
accurate exposure estimates.
    James Mitulski of Farmington, Mo., said his father, Jim 
Mitulski, was told to shower repeatedly in order to bring his 
radiation reading down to an acceptable level. Only when his 
father was ``clean'' would company officials record an official 
radiation reading, the younger Mitulski said.
    ``You're not going to get a valid assessment of what was 
going on until you talk to the men,'' James Mitulski said.
    The report considered 20,000 radiation film badge readings, 
40,000 urine sample results and radon breath tests. Data could 
not be found for every worker, but federal officials say they 
can re-create exposure estimates by comparing data from workers 
in similar jobs, or by extrapolating data gathered at another 
time.

    Senator Bunning. Without objection.
    Senator Alexander.

        STATEMENT OF HON. LAMAR ALEXANDER, U.S. SENATOR 
                         FROM TENNESSEE

    Senator Alexander. Thanks, Mr. Chairman. Thanks for having 
the hearing and thanks for your leadership and that of Senators 
Grassley and Murkowski on this issue.
    Early in World War II, President Roosevelt called Senator 
Kenneth B. McKeller of Tennessee down to the White House. He 
was chairman of the Appropriations Committee. He said: Mr. 
Chairman, we need to hide a billion dollars in the budget for a 
project that will win the war. Chairman McKeller, Senator 
McKeller, said to the President: That would be no problem, Mr. 
President; just where in Tennessee will this project be?
    It turned out that that is how Oak Ridge, Tennessee, got 
started. Thousands of men and women who have worked at Oak 
Ridge during World War II today have always felt part of our 
national security system. They did help win the war with the 
Manhattan Project and they continue to be an important part of 
our national security system.
    Many of them have described themselves as Cold War 
veterans. There are 3,700 Cold War veterans from Oak Ridge who 
are sick and who are getting the run-around from the Department 
of Energy, and it needs to stop. We have heard eloquent 
testimony already today, but just to put by comparisons the 
programs as they affect Tennesseans: In Tennessee there have 
been 3,762 claims filed with the Department of Energy, 7,208 
claims filed with the Department of Labor. In the Department of 
Energy there are now 12 final decisions. In the Department of 
Labor there are 3,200 final decisions.
    In the Department of Energy, of the Tennesseans who filed 
claims 104 cases are completed, 74 were deemed ineligible. 
Department of Labor, 305 recommended decisions. Department of 
Energy, no payments; Department of Labor, 1,506 payments 
totaling $171 million.
    I would like to ask to put into the record letters from two 
of those workers, Jeanine L. Anderson of Maryville, Tennessee, 
my home town, Harry Lee Williams of Oak Ridge, Tennessee, and 
to read just a paragraph or so from Ms. Anderson's letter is 
especially touching. She said she in 1978--``I began my 
employment as an administrative assistant at K-25, Oak Ridge 
Gaseous Diffusion Plant at Oak Ridge, Tennessee. It was always 
assumed that it was safe to work at Oak Ridge, that we knew 
what we were doing there.'' It turned out we did not when it 
comes to the safety of the men and women who were working 
there.
    She lists various problems she has had as her health has 
deteriorated over time. She points out that she filed a claim 2 
years ago and that she received her first response from the 
Department of Energy Office of Worker Advocacy 2 months ago. 
Her last paragraph says:
    ``My days are still filled with doctor appointments, 
medical testing, and physical therapy. I, like thousands of 
other nuclear workers, have become totally discouraged with the 
way the Department of Energy has handled their 
responsibilities. There has been a total disregard for these 
sick Cold War veterans who gave so much for their country and 
have received nothing but mere excuses from the Department of 
Energy as to why they have not helped yet, why their claims 
have been denied, or why DOE needs more funding and more time 
to handle these claims.''
    Mr. Chairman, this is a serious matter for a great many 
Tennesseans and a great many Americans. We should be treating 
our Cold War veterans with the same respect that they have 
treated our country and their employment.
    Thank you.
    Senator Bunning. Would you like that all entered into the 
record?
    Senator Alexander. If this letter, the letter from Ms. 
Anderson, and the letter from Mr. Williams could be entered in 
the record.
    Senator Bunning. Without objection, so ordered.
    Senator Alexander. Thank you, Mr. Chairman.
    Senator Bunning. We will have the Honorable Robert G. Card, 
Under Secretary, Department of Energy, as the next panel.
    Mr. Card, you may begin at any time.

  STATEMENT OF ROBERT G. CARD, UNDER SECRETARY, DEPARTMENT OF 
 ENERGY, ACCOMPANIED BY BEVERLY COOK, ASSISTANT SECRETARY FOR 
                 ENVIRONMENT, SAFETY AND HEALTH

    Mr. Card. Mr. Chairman, if it is all right with you I would 
like to have Assistant Secretary Cook, who will not be giving 
oral testimony, but will be here in case there are questions.
    Senator Bunning. There will be plenty of questions, so she 
can assist you at any time.
    Mr. Card. Good morning, Mr. Chairman and members of the 
committee. My name is Robert Card and I am the Under Secretary 
for the U.S. Department of Energy. I want to thank the 
committee for their interest in this important program, the 
Energy Employees Occupational Illness Compensation Program Act 
of 2003, and for providing the Department the opportunity to 
discuss our progress and challenges in implementing it.
    I would like to make the following summary points from my 
written testimony that was submitted for the record. First, 
while significant improvements have been made in the program, 
DOE did not respond as quickly as it should have to the 
explosive growth in the number of claims filed. We now have met 
our initial improvement target of 100 claims per week, but that 
will be inadequate to deal with the near tripling of claims 
volume estimates made just 2 years ago, which was in turn 
higher than that contemplated in the legislation.
    I think, to respond to many of the comments made this 
morning, what is important is the--actually, what I am going to 
do is--second, DOE is committed to make up the gap. However, it 
will need the help of this committee and Congress to do so. We 
will soon be seeking more than $30 million in additional fiscal 
year 2004 funding and we are reviewing legislative improvements 
that could substantially expedite the processing rate----
    Senator Bunning. Mr. Card, would you please move the 
microphone a little closer to you. Thank you.
    Mr. Card. Thank you.
    We note that, while the Department of Labor has done a 
commendable job of claims processing, its administrative 
funding has been nearly four times that of DOE. We intend to 
reduce this funding gap to dramatically expedite claims 
processing.
    Third, DOE will exercise all options within its control to 
improve flow through the physicians panels, which have become 
the bottleneck now that we have improved our claims processing 
rate. An example of this would be to require only one or two 
physicians to initially review each case. Cases with initial 
negative determinations would still have access to all three 
physicians. Other examples have been provided in my written 
testimony.
    Fourth, we need to work together with the Congress to do a 
better job of communicating what this program is about. As you 
know, part D of this act which we are discussing today contains 
no direct benefit to the employee. It only supports their 
application for State workers compensation, which the employee 
has a right to do with or without this law. It also directs 
DOE, where legal, to prevent DOE-funded challenges to the 
claim. We are concerned that many people confuse the Department 
of Labor-operated part B, which is the federally funded 
benefits program, with the Department of Energy-operated part 
D, which is purely an assistance program.
    Lastly, DOE has a responsibility to prevent the need for 
these types of programs in the future by better protecting our 
existing workforce. We take this responsibility seriously, and 
in that regard I am pleased to report that we have driven 
safety incidents and accidents to record lows. We have also 
held our aggregate exposure rates to low levels, in spite of 
the significantly increased work from the accelerated cleanup 
program. The accelerated cleanup program is achieving dramatic 
risk reductions for the communities that surround our sites in 
addition to site workforce.
    I just want to close with saying that I personally feel for 
the workers that you are talking about. I worked, was one of 
them. I worked among them. So that is why in a way there is 
some emotion in this for me, and I am disappointed in the way 
that this has worked out and we are on track and I vow that we 
are going to fix it.
    However, I also believe this is a very confusing issue and 
a lot of the comments we have heard this morning use different 
dates, different times, and different circumstances. So I look 
forward to responding to your questions and hopefully we can 
clear up where we are and where we are going.
    Thank you.
    [The prepared statement of Mr. Card follows:]
        Prepared Statement of Robert G. Card, Under Secretary, 
                          Department of Energy
    Thank you for the opportunity to testify about the Department of 
Energy's implementation of the Energy Employees Occupation Illness 
Compensation Program Act of 2000 (EEOICPA). Broadly speaking, DOE has 
two areas of responsibility under EEOICPA--(1) gathering employment and 
workplace information to assist the Department of Labor (DOL) and the 
Department of Health and Human Services (HHS) with their work in 
carrying out the EEOICPA Part 3 compensation program, and (2) 
implementation of EEOICPA Part D, which focuses on providing assistance 
to DOE contractor workers in their efforts to obtain State workers' 
compensation benefits. My testimony today will primarily focus on DOE'S 
activities under Part D.
    DOE has heard loud and clear that Congress is frustrated with the 
pace at which we are processing Part D applications. We too are greatly 
concerned. Progress has been made in gathering records and processing 
cases. When Secretary Abraham spoke of this program last spring, we 
were processing less than 20 cases for physician panels a week. We have 
now exceeded 20 cases per day. However, in spite of these significant 
improvements, DOE simply has not processed cases with the speed or 
efficiency desired by the Congress or by Secretary Abraham. Therefore, 
I want to be very specific in my remarks to you today. The Department 
did not react quickly enough when it became apparent that the EEOICPA 
was a much larger program that originally anticipated. More resources 
are required.
    Therefore, we will be providing a request for approval of another 
transfer of funds to the appropriate Congressional committees very 
shortly. I ask for your timely support of this transfer of funds. Also, 
I am asking that the Committee support changes to the statute that 
would assist us in expediting the physician panel process even further.
    I have included an attachment * to my testimony that provides more 
detail concerning the issues I will discuss today, including some of 
the original expectations of the program, processes used by DOE and DOL 
to implement EEOICPA, our progress to date, and what we have learned 
from outside reviews of our work. I have also included information 
about the current safety record of DOE for your information.
---------------------------------------------------------------------------
    * The attachment has been retained in committee files.
---------------------------------------------------------------------------
    Part D of EEOICPA sets up a somewhat cumbersome and complicated 
process that DOE'S contractor workers must navigate if they are to 
benefit from Part D of the program. If a DOE contractor worker believes 
they may have an illness caused by exposure to a toxic substance while 
working at a DOE facility, the law allows the worker to file an 
application with DOE for assistance in filing a state workers' 
compensation claim. After determining that the applicant is eligible 
for the Part D program, DOE gathers records from around the country 
relating to the workers' occupational histories and their health 
conditions, and then refers the application to a panel of doctors. The 
physician panel then determines whether the worker's illness arose from 
exposure to a toxic substance while working at a DOE facility.
    If the panel finds in the affirmative and DOE finalizes the 
finding, the workers are notified of the favorable finding. The workers 
may choose to file a State workers' compensation claim. Of course, the 
workers are free to file with their State workers' compensation office 
at any time, but hopefully the case file put together for the worker by 
DOE plus the positive physician panel finding will provide the worker a 
better chance of receiving benefits through their State workers' 
compensation agency. The statute then allows DOE, to the extent 
permitted by law, to direct the contractor who employed these workers 
not to contest State workers' compensation benefits for workers that 
have received a positive finding. Individual States' workers' 
compensation laws and rules determine benefits for that particular 
state. The EEOICPA statute does not provide for direct monetary 
benefits to Part D applicants from the Federal government.
    At the present time, DOE has received more than 20,000 Part D 
applications with applications continuing to be filed at approximately 
150 per week. In addition, there are currently more that 40,000 
applications filed under Part B, the DOL Federal entitlement portion of 
the program, for which DOE provides information.
    This is in stark contrast to some of DOE'S original expectations 
for EEOICPA. Secretary of Energy Richardson, in an April 2000 press 
release, stated ``The Administration's proposal, if enacted into law by 
Congress, would compensate more than 3,000 workers with a broad range 
of work-related illnesses throughout the Energy Department's nuclear 
weapons complex.'' This was prior to the enactment of EEOICPA, but the 
release did discuss a program that was very similar to the current law, 
including lump sum benefits and help in obtaining State workers' 
compensation benefits.
    The press release further identified the total program costs for 
all agencies, including administrative costs and worker benefits, to be 
about $120 million annually over the first three years the program was 
fully operational, declining to about $80 million per year after the 
backlog of claims was reduced. The basis for these estimates is not 
clear, but the implication is that it would take at least three years 
to clear a 3,000-claim backlog, and then several years beyond that to 
complete all claims. In fact, expected expenses for all of EEOICPA for 
all agencies just through fiscal year 2004 is expected to be $1.5 
billion.
    DOE's budget projections for Part D in 2001, after the statute was 
passed, are based on a projection of about 7500 applications to DOE 
under Part D and 10 years to complete the program. Clearly, DOE 
expected significantly fewer applications to this program than we are 
currently receiving, and consequently fewer resources were requested. 
In fact, we have received nearly three times as many applications as 
originally projected when budgets profiles were developed.
    Despite the fact that thousands more applications have been filed 
than were expected and despite the cumbersome processes established for 
Part D, DOE has worked very hard to carry out its Part D 
responsibilities. This work has occurred while we have also been 
obtaining and providing to the DOL and HHS the records for thousands of 
employees who have submitted Part B applications.
    The Department has continuously worked to improve our processes. 
First, because the number of applications was far exceeding our 
original estimates, we sought in July 2003 and the Congress approved in 
October the transfer of an additional $9.7 million in FY-03 money to be 
used for the DOE's activities in gathering records and processing Part 
D applications. As we already have discussed with many of you, we soon 
plan to seek approval for the transfer of more than $30 million in 
additional funds in FY-04 to be used for this same purpose. These 
additional funds will go a long way towards allowing DOE to work off 
the large backlog of applications for which we are currently gathering 
records for physician panel review. In fact, we are now averaging 100 
cases per week up to physician panel review. I have included statistics 
on our progress in the Attachment, and you can also see our weekly 
progress on the DOE Office of Worker Advocacy web site.
    Second, several months ago DOE retained the Hays Group, Inc. to 
critically evaluate our Part D activities and suggest improvements and 
enhancements that would allow us to more effectively implement the Part 
D program. The Hays report is final, and is available on the Office of 
Worker Advocacy web site. I promise that we will work diligently to 
address the improvements identified in the report. We are also 
interested in the suggestions of the General Accounting Office (GAO) 
after it completes its critical review of the Part D program.
    Third, the Secretary has directed that I personally take charge of 
DOE'S implementation of its EEOICPA duties. I have recently made 
changes so that the Office of Worker Advocacy, the office that 
administers this program within DOE, will report to me directly.
    We believe these funding and programmatic initiatives will go far 
towards expediting the processing of Part D applications that have been 
filed with DOE. We believe that these approaches are preferable to 
moving the administration of some parts of the Part D processing work 
to another agency, as was recently proposed as an amendment to the 
Energy and Water Appropriations Rill. DOE and its contractors possess 
the employment and exposure records for Part D applicants, and DOE has 
spent almost three years carrying out Congress's directive to DOE to 
develop the processes and procedures to gather records and implement 
the Part D program. Moving portions of the program will not accelerate 
the processing of applications, and will, in my opinion, counteract the 
progress we have made to date.
    While we believe that our recent efforts to speed the processing of 
Part D cases puts us on the right path to accommodate the large number 
of backlogged claims, we believe more can be done. Additional resources 
are certainly required. However, we are also evaluating DOE'S Federal 
Rule that implements Part D to determine whether it might be 
appropriate to propose changes that could expedite the processing of 
Part D applications, especially in the area of physician panel reviews.
    Finally, and as I noted earlier, the EEOICPA statute itself places 
a number of constraints and limitations on the Part D process that 
serve to slow down the pace at which DOE can process applications. A 
good example is the physician panels. Current statutory requirements 
may limit the population of physicians below a tenable level for the 
sufficiently speedy processing of applications through the panels, a 
problem which may be exacerbated by the Department's Rule requiring 
three physicians on every panel. We are exploring with other Executive 
agencies legislative changes that may be needed to make more physicians 
available for panels, as well as developing possible changes to DOE 
Rules to best utilize the physicians we have. The statute also caps the 
level of pay for physician panel members at a level well below the 
market rate for such services. An initial description of those barriers 
that may benefit from legislative changes is included in the 
attachment.
    The statute contains other limitations that have been barriers to 
the processing of Part D applications. A table listing many of the 
barriers and possible changes is provided in the Attachment. I am 
looking for support from this committee as we evaluate the 
effectiveness of making these changes to deal with these barriers.
    I also look forward to hearing any suggestions the next panel may 
have for improving DOE'S implementation of Part U, within the existing 
statutory constraints and requirements. Various parties sometimes 
present recommendations to DOE about how its Part D processes might be 
changed, but often those recommendations ignore the limitations placed 
on us by the statute itself. In addition, some of these recommendations 
seem unaware of where the Department's responsibilities lay, a 
misperception that I believe is widespread throughout the community of 
former workers and those interested in their cases.
    The fact of the matter is that the Department of Energy's 
responsibilities end, by statute, when the Department provides the 
Physician Review Panel findings to the worker, and where allowed, 
direct the contract employer to not contest the findings or claim with 
State workers' compensation agencies. No benefit is tied to this 
program, only the advocacy services of the Department. All benefits are 
determined in accordance with an individual State's workers' 
Compensation rules. We appreciate any suggestions and recommendations 
from any party that respects the boundaries as set by the Congress.
    DOE is committed to carrying out its responsibilities under EEOICPA 
Part D. We are committed to providing DOE contractor workers with the 
assistance they deserve under Part D as established by the Congress. In 
addition, we are committed to working with the Congress, to keep you 
informed about our progress and to address improvements in DOE'S 
processes and in the statute itself.
    I also want to assure all members of this committee that the 
Department of Energy as an agency and I personally as the Under 
Secretary of Energy believe that the safety of our workers is our most 
important responsibility. We do not want to leave an additional trail 
of injured and ill workers with legacy costs for the taxpayors. This is 
why I have included some of the safety statistics regarding our current 
operations in the Attachment. The DOE injury and illness rates have 
declined to a historic low in 2003. Our rates are less than half of 
private industry. DOE is one the safest places to work in the country. 
We fully intend to continue this performance while striving to improve 
our methods of protecting our workers, the public and the environment.
    At this time, I would be glad to answer any questions you may have.

    Senator Bunning. Thank you for your testimony.
    I will start off the questioning because I have got so many 
I do not think I can get them all in in the 5 minutes. Please 
put me on the same 5 minutes.
    The only one who seems to be confused is the Department of 
Energy in regards to the law that was written. As of November 
10, 2003, the Paducah plant has had 2,445 applications filed 
with the Department of Energy under subtitle D. The DOE has 
sent one--one--of these claims to the physicians panel, one, 
with 82 having been found ineligible or withdrawn.
    Some of my constituents filed their claims more than 3 
years ago and are still waiting to hear about whether they will 
qualify for benefits. Why, Mr. Card, has it taken so long for 
the Department of Energy to process claims at the Paducah 
plant?
    Mr. Card. First I would lay it out, the original estimates 
for this program had substantially fewer claims anticipated and 
a longer time frame for processing them. I think perhaps the 
case was because this is not the benefits part of the program, 
but assistance with a right the workers already had. It is 
clear that expectation was not acceptable in today's 
environment and we are trying to respond to it.
    Initial estimates were as low as 3,000 claims and 7,500 I 
think were anticipated shortly after the law was passed. We are 
at 20,000 now and seeing 150-plus per weeks still coming in. As 
I said in my testimony, the Department was too slow to 
recognize the change in the size of the program and the change 
in expectations of how fast was acceptable. We are trying to 
address that now.
    I think our recent progress--there is a graph in the 
testimony that shows that we are making substantial progress 
now that we have more funding. I think funding is an absolutely 
essential key issue here, and I would comment that when we get 
the funding we also need time to complete the hiring process 
and staffing to make that work. So to comment, to just add to 
Senator Grassley's comment, the reason why we said 25 percent 
in 6 months is we cannot just turn on the spigot and all of a 
sudden people show up and are trained tomorrow. We have to get 
that infrastructure established.
    We now have an infrastructure established that we believe 
confidently we can process 100 per week, 5,000 a year. So these 
early claims should be getting worked off and already there is 
more progress than are in your records at Paducah, but they are 
nothing to brag about yet.
    Senator Bunning. In February of this year, Secretary 
Abraham testified before this committee and told me that by 
August the Department of Energy was going to process 100 claims 
per week. Those are his words. Only last week, coincidentally 
right before this hearing, did the Department meet this goal. 
The GAO estimates that if the Department processes 100 claims 
per week it will take 4 years for it to process the backlog of 
claims.
    Does the Department expect that it can continue to process 
100 claims per week? How much more will the Department commit 
to processing and eliminating the backlog?
    Mr. Card. Obviously, 100 cases a week will not work the 
backlog off because we are receiving more than that. The 
Secretary made a commitment and we made a commitment to him 
internally that within 12 months of receiving full funding, 
which would be included in this reprogramming request, we would 
process all of the then-current backlog of 15,000 claims within 
12 months. We believe we can do that.
    Senator Bunning. 15,000?
    Mr. Card. Within 12 months of receiving the $30 million.
    Senator Bunning. In other words, of the 2,400-plus that we 
have filed at Paducah and one has been settled----
    Mr. Card. All these Paducah claims that were filed at the 
time of that hearing should be to the physicians panels and 
hopefully, with our work with the physicians panels, through--
--
    Senator Bunning. You are telling me all 2400 applications?
    Mr. Card. I believe these 2,400 were largely filed at the 
time of the hearing, so our commitment was the cases that were 
filed at the time of that hearing would be done 12 months after 
we receive funding.
    Senator Bunning. That is just--go ahead, Senator Murkowski. 
And I am going to hold the 5-minute rule so we can go back and 
forth.
    Senator Murkowski. I appreciate it. Thank you, Mr. 
Chairman.
    Mr. Card, you have mentioned that perhaps this is confusing 
because we are talking about different dates, different 
circumstances, different numbers. So I want to just keep my 
questions as they relate to my Alaskan constituent. You have 
heard about Mrs. Carlson's situation with her husband and his 
death. It has been confirmed. There is no disputing. She is 
eligible.
    Yet you heard her statement that she was informed 6 months 
after her inquiry that there would be no assistance given to 
her and now she is facing this series of litigation, 
deposition, prehearing. You have indicated that there are 
several things that you need. You need the funding, you have 
suggested perhaps reducing the number of physicians to expedite 
things.
    But the third one, you said we need to communicate what 
this program is about. This program, subtitle D, is about 
assistance. Well, Mrs. Carlson has asked for assistance and she 
has been told: Sorry, you are out of luck. Can you explain 
exactly what DOE is doing to assist these claimants, my Alaskan 
claimant Mrs. Carlson, who has received a positive physicians 
panel determination, in her effort to get compensation under 
subtitle D?
    Mr. Card. Sure. And you bring up a very important point. 
The law sets out a framework where our assistance is preparing 
packages like these [indicating]--and we can go into those and 
the difficulty of putting those together--for people like Mrs. 
Carlson. When that package is done and the physicians panel has 
made the final determination, we read the laws that that is 
where our statutory authority stops at that point.
    The applicant has the choice then of using that package, 
which hopefully provides more support than would have been 
available otherwise, to process their case through whatever the 
existing State workers compensation system is. It does not 
appear that the law contemplated us then working through the 
actual State workers compensation process.
    It is my understanding that Mrs. Carlson, who you pointed 
out was a part B recipient, asked us for legal help in 
prosecuting her claim. While that might have been a wonderful 
thing to have provided, we clearly viewed it as out of bounds 
of what was intended for us to do in our authority.
    Senator Murkowski. Do you have, does DOE have, a specific 
individual who Alaskans can contact to determine the status of 
their claims and get other questions answered?
    Mr. Card. All individuals have access to a 1-800, or it is 
888, I think, number, a toll-free number. Our web site is 
continuously being improved and my goal is to get it as good as 
FedEx or others like them, where people can follow their case 
every step of the way. We are a long ways there. But there are 
hot lines that are regularly used to find out where cases are 
and how to get in touch with us.
    Senator Murkowski. Well, there is a big difference between 
going to a 1-800 number and getting somebody who has never 
heard of you versus having a person in Kentucky, in Tennessee, 
in Alaska, that is working these claims. I would hope that you 
could be more personally responsive.
    Can you explain what specific steps DOE has taken to 
establish a willing payor in Alaska?
    Mr. Card. What DOE has done is an extensive research of 
active contract vehicles that would allow us to, again within 
the framework that we view the statute laid out, to find a 
willing payor. So far we have not been able to find any active 
contract vehicles in Alaska for us to be able to help.
    Senator Murkowski. Have you advised the Alaskan claimants 
that there is no willing payor?
    Mr. Card. At this point we are unable to find one that we 
can put pressure on to engage.
    Senator Murkowski. So do the claimants who are making 
application, do they believe that there is a willing payor out 
there and that there will be some benefit in them moving 
forward with this application?
    Mr. Card. I do not specifically know the answer to that. 
All I know is that this program was set up for us to get them 
to the point where they can successfully engage, as 
successfully as possible, in that workers compensation program 
by having these medical histories. So I am certain there is a 
variety of expectations among the claimants, but I am not aware 
specifically of how many may or may not believe there is a 
willing payor when there is not.
    Senator Murkowski. Well, if there is not, I would certainly 
hope we are not leading people down a path that is obviously 
very difficult to have to go through if your spouse has died as 
a consequence of exposure, as Mrs. Carlson's husband. And if 
there is no expectation that--or there is no understanding that 
you are going to have a willing payor on the other end, I would 
certainly hope that we are not putting people down a path with 
unrealistic expectations.
    Thank you, Mr. Chairman.
    Senator Bunning. Thank you.
    Senator Talent.
    Senator Talent. Thank you, Mr. Chairman.
    Mr. Card, in your testimony you said that there were about 
three times as many claims as you had anticipated; is that 
correct?
    Mr. Card. That was the anticipation 2 years ago, which was 
more than appeared to be----
    Senator Talent. Right, I understand. When the law passed 
the budget request you made was based on an assumption of about 
a third the number of claims that you have got. Are we on the 
same page here, about?
    Mr. Card. When we did our research and looked through the 
budget preparations for, I think it was, fiscal year 2002, it 
appeared that about 7,000 claims was what was anticipated, and 
that would be worked off over a number of years.
    Senator Talent. Well, in Missouri we have had 3 percent of 
the claims completed. So I mean, even if the claims had been at 
the level that you requested or, excuse me, that you 
anticipated, we would still have only 9 percent of the claims 
completed; and you would not suggest that that is an 
appropriate figure after 2 years, would you?
    Mr. Card. No, I am not defending the historical performance 
of the program.
    Senator Talent. Good, because what I am getting to is--and 
I have been around long enough now to have seen this a lot--
there is some vast non-feasance by an agency, it just does not 
do its job, and then what we end up doing about it after all 
the complaining that happens on the Hill is we end up providing 
more money. So what happens is the agency by not doing its job 
gets more money.
    What I would like to see is somebody held responsible, 
because it just seems to me that, even if it was inadequately 
funded--and I think maybe we should have funded it more--you 
could have done a better job than you did. I mean, 6 percent. 
There had to be something beyond just a lack of funding here.
    I am loath to say you did a terrible job, so here is more 
money. I know we are going to have to do that, but to me that 
is not the right answer. You do not have to comment on it if 
you do not want to.
    Mr. Card. If you do not mind, I just encourage you, there 
is an attachment in here that compares the DOE budget and the 
DOL budget, simply the administrative, not the benefits 
portions, that I would encourage you to look at to make your 
own decision whether there has been adequate funding.
    Senator Talent. I am not saying the funding has been 
adequate. But I am saying that the performance has been 
inadequate even given the fact that there has been a funding 
shortfall. I would hope that there is some attempt to initiate 
management solutions, which ought to involve holding somebody 
responsible. I know that is not always easy to do, but, my 
gosh, I am sure that these workers would appreciate knowing 
that--if they performed this well on the job or this poorly on 
the job, they would not be confronting this situation because 
they would not have worked all those years that they worked, I 
will tell you that.
    Let me ask you one other thing. Do you have any suggestions 
for what we ought to do as a government, either 
administratively or statutorily, for the situation where there 
is not a willing payor? Because I mean, to be fair, that is 
probably a lot of the problem, when there is nobody you can 
direct to pay the claim, and then we have State agencies or 
funds or whatever contesting it. Do we need more legislative 
action here? What would you propose?
    Mr. Card. Well, that is a complex issue. There is a number 
of different benefits programs that DOE workers qualify for in 
addition to these. So if one was going to make that 
determination, it would seem that you would want to look at all 
the various benefits available and determine if there is a 
statistically significant group of people who are being 
underbenefited because of the way this is working. Then perhaps 
one would want to look at that.
    But it is not clear to me right now in the total scheme of 
things--and part of the problem admittedly is we do not have 
enough data--that in fact these workers have not had access to 
the right, to adequate benefits in other vehicles. So at this 
time, until we get more experience with the program, we are not 
proposing a change in the benefit. But as I said in the 
testimony, we are actively looking at proposed legislative 
changes to the process that will enable us to expedite our 
processing.
    Senator Talent. Thank you, Mr. Chairman.
    Senator Bunning. Senator Alexander.
    Senator Alexander. Mr. Card, I would like to look to the 
future a little bit. Without assessing blame for the past, 
looking to the future, would one solution just be to give it 
all to the Department of Labor? I know they deal with different 
issues, but they apparently have a larger administrative 
budget, they seem to be doing a good job on what they are 
doing. You have lots of other things to do in your Department.
    Looking at it from the point of view of, say, the 3,700 
Tennessee claims that are filed and the 12 final decisions, the 
104 cases completed, would it be easier and better for the 
claimants, not for you, to transfer it to Labor?
    Mr. Card. Senator, I took a hard look at the proposal, 
which was certainly well intended, to involve the Department of 
Labor in this. The problem that I came up with is the 
fundamental issue here is that data is possessed within the DOE 
system. So there was no way to cleanly hand this program over 
to anybody, and DOE was still going to--the hard part of the 
program was still going to rest with DOE and there is no 
logical way to make that separation.
    So the way we thought that very well intended amendment is 
it would have simply added another interface point, which are 
already difficult issues in this program, and when we looked at 
the numbers that were being informally cast about for funding 
we also--we would have had no money left over to support doing 
that so the Department of Labor could have done what it was 
supposed to do. So it would have actually increased the funding 
requirement considerably.
    So at the end of the day--and then there is the issue of 
new rules, do new rules need to be made, and will that put 
delays in the program? So when you look at the graph showing 
the ramp-up in processing rate now that we have office space 
and we are fully staffed at that rate, it looked to us like 
right as we are getting ready to actually get moving on this 
thing that it might put a step change delay in the program.
    Senator Alexander. Well, let me ask this, then. Let us say 
you--and I respect the fact that you are a former worker 
yourself and you have a feeling about this. Let us say you are 
outside the Government right now and the administration and the 
Congress calls you in and says: We have got a mess here. We 
intended to apologize to our Cold War veterans and create a 
system whereby we could acknowledge what happened to them, but 
it is not working. We want it badly to work.
    If you were to start from scratch today and say to us a way 
to change things so that it could be done better, what would 
you do?
    Mr. Card. If I was starting all over again today, I frankly 
would not be in a lot different place than we are today. I 
would not have got here the way we got here. I mean, I think we 
should have--this should have had a higher level of visibility. 
We should have recognized the institutional realities of this, 
that the 5 to 10-year processing time that was contemplated 
when this was passed was not going to be acceptable to our 
constituents, our joint constituents. We should have ramped up 
to the point we are now earlier.
    Senator Alexander. Would you have used--asked for a 
different process maybe? Based on what you have seen now, do we 
need all of these papers that are stacked up there?
    Mr. Card. There are limitations. There are limitations, 
particularly relating to the amount and type of physicians that 
we have access to, that we are concerned about in the statute. 
We are reviewing those inside the administration right now. I 
think we certainly would have addressed that earlier.
    Our DOE rule, as we have said in the testimony, sets up a 
three-physician process which unnecessarily uses more resources 
than we probably need to do to get the job done. We have talked 
with the Department of Labor about their strategy of using 
cohorts or large aggregations of people, which we are going to 
take a hard look at.
    The struggle I have, though, is that the Department of 
Labor program, remember, they are the judge, jury, witness, and 
everything. We are preparing this for an independent body over 
which we have no control to make a decision, and may be 
contested if we do not have influence.
    Senator Alexander. But my point, and I know I am about out 
of time, is if you were setting a different procedure, I mean 
if you came in and we all called you in and said, come in and 
take a look at this, we had a goal and the method we set up did 
not work--maybe it was because the Department did not do its 
job, maybe it was because the Congress set up a mechanism that 
was impractical. If it is impractical, I think it would help us 
if we were told that and told, instead of doing this, let us do 
that, and maybe there is something we could do about it.
    Mr. Card. We will have some recommendations for you.
    Senator Bunning. Thank you.
    Missouri is at 3 percent. Kentucky is at .04 percent of 
claims filed. So we are still a little behind you, Jim.
    Senator Talent. If you only had a third of the claims you 
would be at 1.2 percent.
    Senator Bunning. There you go. We can make progress.
    Even if the Department begins processing claims at a 
quicker pace, and you said you are doing that, the GAO has said 
that the current physicians panels can only handle 200 cases 
per month. At that rate it would take more than 7 years to 
process all current pending cases. That does not count any 
future cases that might be filed.
    Can the DOE give any recommendations on how to fix the 
problem with the physicians panels, since half of them are 
working and half of the physicians are not working?
    Mr. Card. Okay. First of all, all physicians that are able 
to work today are working. So the number that was set----
    Senator Bunning. In other words, the people that you chose 
are incapable of work, or what was it?
    Mr. Card. We do not--the Department of Energy does not 
choose the physicians. We request the physicians. When the 
physicians are referred to us, then the physicians themselves 
get to decide when they want to work, what cases they want to 
take at that period of time.
    Senator Bunning. Then the pool could be bigger. Maybe you 
could make the pool bigger.
    Mr. Card. The current interpretation of the statute limits 
the pool size to a certain specialty which does not have a 
robust amount of physicians in it.
    I will just walk down the steps that we are looking at to 
improve that process. First of all, we are looking at if we can 
get one physician to make a positive determination we can move 
forward with that. If they make a negative determination, we 
will continue to the three until we get a final one. That would 
substantially increase the resources available to us.
    We have asked for more physicians. We have not received 
fulfillment of our request yet. We are looking at the 
legislation to see do we need all these certain types of 
physicians to do this. The legislation also sets salary caps 
which are fairly unreasonable to ask these physicians to work 
under. We are also seeing if we can employ these physicians 
essentially on a full-time basis rather than ad hoc.
    We think if we can deal with all of those issues we can get 
this done. But we will need the help of this committee in 
addressing some of them.
    Senator Bunning. All right. One other suggestion for the 
Department to move claims along faster is to group claims 
together according to where the claimants worked, so that the 
Department does not have to keep recreating toxic exposure 
profiles. Why has the Department not grouped claims together so 
that claims will move faster?
    Mr. Card. We are taking a hard look at that. One of the 
issues is during the development of our rule a large group of 
people felt it was very important to have a first in, first out 
process. The Hays report recommended we revisit that. We are 
listening to what you want us to do. It is very important 
because this is an issue of balancing constituent interests. If 
we make a determination that we misread the constituent 
interest and they would really rather speed this up by doing 
the things you are talking about, we are open to revising our 
process.
    Senator Bunning. Well, we are on a vote now and since I 
still have some time I am going to--all the people that are on 
the third panel, please submit all of your testimony for the 
record because we are going to be at least two votes and then 
we will come back, unless--go ahead.
    Senator Murkowski. Thank you, Mr. Chairman. I appreciate 
the opportunity to ask a couple more questions here.
    I understand that the act allows DOE to enter into 
agreements with the States whereby DOE will assist workers 
filing claims under State workers compensation programs. DOE 
and Alaska have entered into a memorandum of understanding and 
our MOU provides that DOE may agree to indemnify a DOE 
contractor or insurer for the State of Alaska workers 
compensation claims.
    My question to you, Mr. Card, is pursuant to this MOU how 
many DOE contractors, insurers, has DOE agreed to indemnify so 
that Alaskans with positive physicians panel determinations 
like Mrs. Carlson can actually receive compensation?
    Mr. Card. For DOE to indemnify a contractor requires that 
we have a contract, and the problem in Alaska, as I mentioned 
earlier, is we have been unable to find an active contract with 
a relevant contractor in Alaska. So while I am not absolutely 
certain of this, I am pretty sure that the answer will be zero 
to your question.
    Senator Murkowski. So if it is none, if it is zero--and we 
have also made that assumption, that there are none--what was 
the purpose of putting this language in the MOU?
    Mr. Card. Well, in the States we have--Assistant Secretary 
Cook can answer this if she would like, but we attempt to have 
a fairly standard agreement with the States, so my guess is 
that was a standard clause. I do not know, Assistant Secretary 
Cook; do you want to----
    Ms. Cook. That was not a clause in the actual MOU. The 
MOU's specifically state that we will share information with 
the State worker comp systems. It does not say in that MOU that 
we will indemnify anyone.
    Senator Murkowski. Well, I am looking at the language that 
was pulled from the MOU and the language as I am reading 
provides that: ``Provided that, consistent with subpart D, such 
a determination will prevent DOE and may prevent a DOE 
contractor from contesting an applicant workers compensation 
claim, and DOE may agree to indemnify a DOE contractor-insurer 
for State of Alaska workers compensation claims.'' So perhaps 
we need to----
    Ms. Cook. It says ``may'' within the legal constraints, and 
that is what we followed up with. We indemnify our contractors 
that we have legal arrangements with, but it turns out we do 
not have a legal arrangement in Alaska.
    Senator Murkowski. So you do not have a legal arrangement 
in Alaska. So again, perhaps we are giving a mixed message to 
those claimants.
    You had indicated, Mr. Card, to Senator Talent you were 
talking about the willing payor issue and you indicated that at 
some point in time you would be coming forth with some 
recommendations. The willing payor issue appears to me to be a 
huge one, a potential train wreck. When does DOE plan to 
provide Congress with recommendations on how best to resolve 
this?
    Mr. Card. Well, just to correct, I may have said this 
wrong. Right now DOE is not engaged in evaluating the willing 
payor issue. I said if somebody wanted to look at it these are 
the things to have to do. Right now we are focused on getting 
these claims processed.
    Senator Murkowski. Well, how can you get the claims 
processed with no understanding on the other end as to how you 
are going to make the payment? Processing the claim just gets 
Mrs. Carlson through the system, but then she gets to the end, 
where she has an expectation that, having gone through the 
system, having had her claim processed, having been determined 
eligible, she gets nothing.
    Why would you suggest that you are not even looking to 
getting to that step?
    Mr. Card. Well, Senator, a couple things. First of all, as 
we read the statute Congress expressed its intent of what it 
wanted in the statute. DOE has not at this time said let us go 
question that, because we have not engaged in a comprehensive 
benefits analysis for this workforce. So first of all, we did 
not read it as our obligation or charter to go look at the 
willing payor issue.
    Secondly, we could be willing to relook at whether we 
should even process these claims where there does not appear to 
be--we reviewed our charter again in the statute. We are going 
to help people no matter what would happen at the end. So but 
if we would like to at the start make that determination, we 
would be glad to take a look at that. The problem is that is a 
State of Alaska issue. The State could change the way it runs 
its workers compensation program. So we did not want to 
prejudge what a State may do, since our only job is to assist 
in configuring this claim for its best possible chance within 
the State workers compensation system.
    So I understand the frustration with the willing payor 
issue. We really do not view that is in our purview right now.
    Senator Murkowski. Mr. Chairman, I might suggest that I do 
not believe it was Congress's intent that we just run people 
through a bureaucratic nightmare just so that they can say we 
processed their claims.
    Senator Bunning. All I can tell you is that I was carrying 
the water between the House and the Senate when this was being 
done and it was our intent that each worker have a final 
determination and be paid. Of course, the Department of Energy 
has interpreted it slightly different than the Congress 
intended it. Now we are going to have to either correct it 
legislatively or we are going to get a new Department of Energy 
to work with. That is all there is to it.
    We have tried to work with the old Department of Energy and 
got the same run-around that we are getting with the new 
Department of Energy, and we are not going to tolerate it. I 
just want the Department to be on notice of that. Getting this 
thing done was not an easy task, both subtitle B and subtitle 
D, and there was a commitment of almost $2.4 billion for the 
two titles, subtitles, and you are telling me that we are not 
going to assist anyone after the fact, after the claim has been 
filed and after the claim has been approved, and then you are 
going to drop them off at the non-payor window? I am telling 
you that is not what the intent of the Congress was.
    I am going to kind of calm down and then get some more 
questions, since they have not started the vote.
    Over $17 million has been spent for SEA, Science and 
Engineering Associates, to process 109 claims through the 
physicians panels and to develop 1100 eligible claims to be 
ready for the physicians panel in 2 years. According to my 
calculation, this works out to be about $15,000 per claim. Why 
has the Department spent so much money on this portion of the 
program when all SEA appears to be doing is putting case files 
together for the physician review?
    In other words, the person is not getting anything, but 
people that are working up the claimants seem to be getting 
more than the claimant is getting at the end.
    Mr. Card. Well, I think the complexity of processing this 
is certainly a significant concern to me, because this does not 
look like a great program at this point in terms of the 
administrative cost versus what the payout may be, although we 
do not know what that is at this point.
    Senator Bunning. We are not having any problems with the 
Labor Department payout. I mean, it is pretty clear that they 
have paid out a lot of claims and it is a lot easier and a lot 
more simple to determine if someone has passed away and whether 
they have been eligible for these claims that you now say that 
there may not be a willing payor for.
    Mr. Card. The benefit at the Department of Labor system 
again is that they have a smaller, more defined set of causes 
of diseases that are somewhat easier to qualify and research, 
and then they get to decide on paying out the benefit. In the 
case of subtitle D, any toxic substance for any disease that 
might be caused by it is required to be researched and then it 
is up to the State workers compensation system.
    So that is why you end up with cases like these, because we 
have to do a lot more research of what was going on at the 
facility and with the claimant as to their medical history to 
make those connections in a way that may be convincing for a 
party that we do not control, the State workers compensation 
system, to make that decision.
    Senator Bunning. The Department of Energy has processed 
about 6 compensation of the subtitle D cases and found almost--
almost--90 percent of those processed cases to be ineligible. 
What are the main reasons why employees are being found 
ineligible for workers compensation benefits?
    Ms. Cook. Actually, the amount of ineligibles relate to the 
total number that have come in. We do handle each case that 
comes in and do initial screening for eligibility.
    Senator Bunning. Am I wrong in my percentages?
    Ms. Cook. Yes, because the----
    Senator Bunning. But GAO says I am right.
    Ms. Cook. Well, I understand, but they were not looking 
at--they did not realize we were looking at all cases that came 
in. So the ineligibles that we have, which right now is a 
little over 1,000, are 1,000 out of the 20,000 that have 
applied are ineligible.
    Senator Bunning. But you have not processed how many of 
those claims yet?
    Ms. Cook. Right now, right now where we are, we have 1,296 
that are processed, 317 at physicians panels, and 800 are 
sitting with workers trying to decide whether they want us to 
move forward with their cases. So we have got about----
    Senator Bunning. So you are talking about a little over 
2,000 total?
    Ms. Cook. We have about 12 percent of our cases that we 
have finished our work and are in various stages.
    Senator Bunning. Am I wrong about the 90 percentile?
    Ms. Cook. You said 90 percent of what we had done were 
ineligible.
    Senator Bunning. Yes.
    Ms. Cook. No. 90 percent of the 20,000 are ineligible.
    Senator Bunning. How can you tell that until you process 
the claim?
    Ms. Cook. I am sorry----
    Mr. Card. I think where you are----
    Ms. Cook. The ineligible is----
    Senator Bunning. The GAO report is pretty accurate.
    Ms. Cook. The ineligibles have to do--it is 1,000 out of 
20,000 that are ineligible.
    Mr. Card. I think----
    Senator Bunning. The follow-up question--wait a minute, 
Bob. The follow-up question is how many of the 20,000 claims 
have you gone through the process of determining whether they 
are eligible or not eligible?
    Ms. Cook. All 20,000.
    Senator Bunning. You have done that? The physicians panel 
has examined all 20,000 of them?
    Ms. Cook. Eligible means they are eligible for our program 
at all, not did they get a positive finding.
    Senator Bunning. Well then, the process is not finished.
    Ms. Cook. I understand.
    Mr. Card. This is correct. The first screening step is----
    Senator Bunning. Well then, your number is completely 
wrong, if they have not gone through the process.
    Ms. Cook. GAO's ineligible, I believe their definition was 
the same as ours, eligible for the program.
    Senator Bunning. Go ahead, Senator.
    Senator Murkowski. Thank you, Mr. Chairman.
    This goes back to our discussion about resolving the 
willing payor issue. I understand that on June 27, 2002 the 
DOE's Worker Advocacy Committee sent a letter to the Department 
of Energy with respect to the willing payor problem saying 
basically, what are you going to do about it. DOE responded on 
August 9, 2002, stating ``The issue of mechanisms of payment of 
claims where there is no current contractor with responsibility 
for paying a claim remains a concern. We will continue to 
explore possible remedies with the WAAC, the general counsel, 
and Congress to correct this inequity.''
    This letter was I guess about 15 months ago. I have asked 
you to give me some indication as to when we might expect 
something. You have been working on it now for 15 months. Where 
are we in the process of getting something, some kind of 
recommendation on willing payor?
    If I understand your last response to me, you said: We are 
not working on it.
    Mr. Card. In response to that letter, we researched this 
issue and concluded that the statute does not provide for us to 
find or induce a willing payor. So in terms of that, we feel 
that issue is closed out. There would be another issue as to 
whether we undertake some sort of study to evaluate whether 
there should be or what is the total benefits package that I 
discussed earlier. We are currently not engaged in such a 
study, but I think right now our view is the statute as we read 
it does not empower DOE to go deal with the willing payor 
issue, other than to look as hard as we can for one, which we 
are doing. We are not stopping that and, just as we responded 
to you in Alaska, while we do not see one yet, we have not 
stopped looking.
    Senator Murkowski. You have not stopped looking, but you 
have got memorandums of understanding that talk about an 
indemnity, but we cannot do it because we do not have our 
willing payor. You have the individuals, the claimants, go 
through a process. You do not tell them that you do not have a 
willing payor out there.
    It seems like what we are doing is we are setting people up 
here and giving them some hope that you go through this 
process, you go through the process and at the end there is 
going to be some resolution. I am not hearing from the way it 
is set up in DOE that you can provide. You are saying the 
statute does not allow you to go that far. This is a great 
concern to me.
    Is the DOE defending its physicians panel determinations 
when they are challenged by insurance companies, and if not why 
not?
    Mr. Card. I believe--no.
    Senator Murkowski. Why not?
    Mr. Card. Again, we view that the statute tells us to 
provide the support to include in the application for workers 
compensation, but not beyond that.
    Senator Murkowski. So this goes back to your opening 
statement, when you said we need to communicate what our 
program is all about; our program is all about assistance. 
Define for me then what DOE figures your role is in assistance? 
If you are not helping on the back end in terms of the willing 
payor issue, you are not defending the physicians panel 
determinations when they are challenged by an insurance 
company, what kind of assistance do you provide then?
    Mr. Card. The way I read the statute, there are two core 
things that seem to be trying to get done. One is to provide 
this technical medical assistance so that there would be less 
argument with the State workers compensation system about cause 
and effect of the disease. That is represented there 
[indicating]. The other kind is, where legal, to stop the 
Department or its contractors from opposing such claims. We are 
vigorously pursuing both of those pathways.
    Just let me follow up on your earlier comment. I have taken 
to heart this communication issue and I will tell you that we 
are going to take a hard look at what sort of communications we 
can do up front, because it does seem to be unfair and, while I 
have not figured out how we would do it because it prejudges a 
system over which we have no control, we will take an action 
item to take a look at that.
    Senator Murkowski. Go ahead, Mr. Chairman. Thank you.
    Senator Bunning. Thank you.
    This will be the last question because we are in the wrap-
up, so you can go over and vote if you would like.
    Senator Murkowski. We are in a vote?
    Senator Bunning. Senator Frist is wrapping up now.
    Last question, and it is similar to Senator Murkowski's. We 
have found in Paducah that half, 50 percent, of the claims, 
there is no willing payor on the other end. Even if the 
claimant is successful in going through all the hoops to get to 
the end of the line and get a determination, there is no 
willing payor for 50 percent of the claims.
    So you are telling me that you do not think that the 
Department of Energy has any responsibility after that?
    Mr. Card. It is my opinion the statute does not convey to 
DOE responsibility for that issue. At Paducah it is not clear 
whether there is no willing payor or just nobody----
    Senator Bunning. I did not say--in less than 50 percent of 
the cases.
    Mr. Card. There is a contractor there that we cannot--we do 
not have the legal authority to direct not to oppose the 
claims.
    Senator Bunning. And you are not going to pursue any, 
either through the courts or anything? You are just going to 
drop it? The claimant will be at the end of the process with no 
willing payor, so they will be in the same situation as the 
person in Alaska. There will be no one to pay the bill, even if 
that person has been determined eligible?
    Mr. Card. If in fact there is no organization with which 
DOE has a valid contract to become a willing payor and the 
State system does not provide for it, the answer would be yes.
    Senator Bunning. That is all the questions I have, Mr. 
Card. I will be seeing some of your people on December 6 in 
Paducah and we are not finished with this issue, believe me, as 
we go through the process. Thank you.
    If the third panel will be seated, we will be back as 
quickly as we can after the vote. Thank you.

    [Recess from 10:55 a.m. to 11:20 a.m.]

    Senator Bunning. The committee will reconvene and we will 
hear testimony from the third panel. Mr. Robertson, if you 
would begin. We are going to make you stick to the 5-minute 
rule if you do not mind.

    STATEMENT OF ROBERT E. ROBERTSON, DIRECTOR, EDUCATION, 
            WORKFORCE, AND INCOME SECURITY ISSUES, 
                   GENERAL ACCOUNTING OFFICE

    Mr. Robertson. Actually, I think in the interest of time I 
am going to scrap my prepared comments and summarize those 
summarized comments.

    Senator Bunning. Well, we will accept your full statement 
for the record.

    Mr. Robertson. Very good. Basically what I would like to do 
is make three points this morning. Having said that, as you 
alluded to earlier, our testimony today is based on ongoing 
work of looking at how well DOE has implemented the subtitle D 
portion of the Energy Employees Occupational Illness 
Compensation Program Act.

    The three points I would like to make this morning are 
along these lines. The first is to state the obvious--and 
sometimes that is a good thing to do--that is that DOE has been 
slow to get a start on processing these claims. Now, very 
recently we have seen some rather large increases in the speed 
at which they are developing cases on the front end of the 
process--they are up to 100 cases per week. I think the 
question here is whether or not they are going to be able to 
sustain that speed. That is point number one.

    Point number two is, even if they maintain that speed at 
the front end, we have still got to be concerned about what is 
happening at the back end, at the physicians panel side of 
things. That is something that I think this committee and DOE 
needs to focus attention on. There is only a limited number of 
qualified, credentialed physicians who can serve on these 
panels and these panels could become another bottleneck. So 
that is the second point.

    The third point--and we have talked about this, or you have 
talked about it earlier--concerns the willing payor issue. We 
have, as is indicated in our testimony, estimated that most of 
the folks who we have looked at in our sample of DOE facilities 
will have willing payors.

    I would like to say, however, that while there may not be 
as many people who are in situations where there are not 
willing payors, I think, as the committee has indicated 
earlier, we need to focus attention on how to deal with them. 
But the thing that I would not like to lose sight of is, even 
when you have the willing payor, situations where you have 
claimants with willing payors, that does not guarantee that 
they are going to get paid. So just let us not lose track of 
that.

    The other thing is, again talking about the willing payor 
situation, we have talked with contractors who basically have 
said: Yes, we are willing payors, but we need to get some 
guidance on how to calculate compensation amounts.

    So those are the three points I would like to make this 
morning. I will be happy to answer questions at the appropriate 
time.

    [The prepared statement of Mr. Robertson follows:]
    Prepared Statement of Robert E. Robertson, Director, Education, 
    Workforce, and Income Security Issues, General Accounting Office
    Mr. Chairman and Members of the Committee:
    I am pleased to be here today to discuss our work regarding the 
effectiveness of the benefit program under Subtitle D of the Energy 
Employees Occupational Illness Compensation Program Act of 2000 
(EEOICPA) in assisting contractor employees in obtaining compensation 
for occupational illnesses. Congress mandated that we study this issue 
and report to the Senate Committees on Energy and Natural Resources and 
Appropriations and the House Committees on Energy and Commerce and 
Appropriations.
    For the last several decades, the Department of Energy (Energy) and 
its predecessor agencies and contractors have employed thousands of 
individuals in secret and dangerous work in the nuclear weapons 
production complex. Over the years, employees were unknowingly exposed 
to toxic substances, including radioactive and hazardous materials, and 
studies have shown that many of these employees subsequently developed 
illnesses. The Energy Employees Occupational Illness Compensation 
Program provides for compensation to these employees who developed 
occupational illnesses and, where applicable, to their survivors. 
Congressional Committees, as well as individual members of Congress, 
claimants, and advocates have raised concerns regarding Energy's 
processing of claims and the availability of benefits once claims have 
been decided.
    As title XXXVI of the Floyd D. Spence National Defense 
Authorization Act for Fiscal Year 2001, which was signed into law on 
October 30, 2000, this legislation has two major components. Subtitle B 
provides eligible workers who were exposed to radiation or other toxic 
substances and who subsequently developed illnesses such as cancer and 
lung disease a one-time payment of up to $150,000 and covers future 
medical expenses related to the illness. The Department of Labor 
administers these benefits, payable from a compensation fund 
established by the same legislation. Subtitle D allows Energy to help 
its contractor employees file state workers' compensation claims for 
illnesses determined by a panel of physicians to be caused by exposure 
to toxic substances in the course of employment at an Energy facility. 
The legislation did not set aside funding for payment of benefits under 
Subtitle D.
    My testimony today reflects our ongoing review of the effectiveness 
of Energy's implementation of Subtitle D. We focused our work on three 
key areas: (1) the number, status, and characteristics of claims filed 
with Energy; (2) the extent to which there will be a ``willing payor'' 
of workers' compensation benefits; that is, an insurer who--by order 
from, or agreement with, Energy--will not contest these claims; and (3) 
the extent to which Energy policies and procedures help employees file 
timely claims for state workers' compensation benefits.
    In summary, as of June 30, 2003, Energy had fully processed about 6 
percent of the nearly 19,000 cases received, and more than three-
quarters of all cases were associated with facilities in nine states. 
Energy had not begun processing over half of the cases received. While 
some other case characteristics can be determined, such as illness 
claimed, systems limitations prevent reporting on other case 
characteristics, such as the reasons for ineligibility or basic 
demographics.
    While the majority of cases (86 percent) associated with major 
Energy facilities in nine states potentially have a willing payor of 
workers' compensation benefits, actual compensation is not certain. In 
certain states such as Ohio and Iowa, there are likely to be many cases 
that lack willing payors, and in some instances may be less likely to 
receive compensation than a comparable case with a willing payor in a 
different state. The 86 percent figure reflects the number of cases for 
which contractors and their insurers are likely to not contest a 
workers' compensation claim, rather than the number of cases that will 
ultimately be paid.
    For all claimants, actual compensation is not certain because of 
additional factors such as variations in state workers' compensation 
programs or contractors' uncertainty on how to compute the benefit. 
Claims for workers' compensation have been delayed by two bottlenecks 
in Energy's claims process. First, Energy's case development process 
has not always produced sufficient cases to keep physician panel: 
operating at full capacity. While additional resources may allow Energy 
to move a sufficient number of cases through its case development 
process, the physician panel process will continue to be a second and 
more important bottleneck.
    The number of panels, constrained by the scarcity of physicians 
qualified to serve on panels, will limit Energy's capacity to decide 
cases more quickly, using its current procedures. Energy officials are 
exploring ways that the panel process could be made more efficient.
    To perform our review, we analyzed data extracted from Energy's 
Subtitle D case management system for applications filed through June 
30, 2003.\1\
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    \1\ We collected data as of this date to enable us to assess the 
reliability of Energy's data by: (1) performing electronic testing for 
obvious errors in accuracy and completeness; (2) reviewing available 
documentation; and (3) interviewing agency officials and contractors 
knowledgeable about the data. We determined that the data elements used 
were sufficiently reliable for our purposes.
---------------------------------------------------------------------------
    We also reviewed the provisions of, and interviewed officials with, 
the workers' compensation programs in nine states accounting for more 
than three-quarters of Subtitle D cases filed, and we interviewed the 
contractors operating the major facilities in these states. In 
addition, we conducted site visits to three Energy facilities in Oak 
Ridge, Tennessee, the state with facilities accounting for the largest 
number of Subtitle D claims. We also interviewed key program officials 
and other experts. We conducted our review from April 2003 through 
October 2003 in accordance with generally accepted government auditing 
standards.
                               background
    Energy oversees a nationwide network of 40 contractor-operated 
industrial sites and research laboratories that have historically 
employed more than 600,000 workers in the production and testing of 
nuclear weapons. In implementing EEOICPA, the President acknowledged 
that it had been Energy's past policy to encourage and assist its 
contractors in opposing workers' claims for state workers' compensation 
benefits based on illnesses said to be caused by exposure to toxic 
substances at Energy facilities.\2\ Under the new law, workers or their 
survivors could apply for assistance from Energy in pursuing state 
workers' compensation benefits, and if they received a positive 
determination from Energy, the agency would direct its contractors to 
not contest the workers' compensation claims or awards. Energy's rules 
to implement the new program became effective in September 2002, and 
the agency began to process the applications it had been accepting 
since July 2001, when the law took effect.
---------------------------------------------------------------------------
    \2\ Executive Order 13179 of December 7, 2000.
---------------------------------------------------------------------------
    Energy's claims process has several steps, as shown in figure 1.* 
First, claimants file applications and provide all available medical 
evidence. Energy then develops the claims by requesting records of 
employment, medical treatment, and exposure to toxic substances from 
the Energy facilities at which the workers were employed. If Energy 
determines that the worker was not employed by one of its facilities or 
did not have an illness that could be caused by exposure to toxic 
substances, the agency finds the claimant ineligible. For all others, 
once development is complete a panel of three physicians reviews the 
case and decides whether exposure to a toxic substance during 
employment at an Energy facility was at least as likely as not to have 
caused, contributed to, or aggravated the claimed medical condition. 
The panel physicians are appointed by the National Institute for 
Occupational Safety and Health (NIOSH) but paid by Energy for this 
work. Claimants receiving positive determinations are advised that they 
may wish to file claims for state workers' compensation benefits. 
Claimants found ineligible or receiving negative determinations may 
appeal to Energy's Office of Hearings and Appeals.
---------------------------------------------------------------------------
    * All figures have been retained in committee files.
---------------------------------------------------------------------------
    Each of the 50 states and the District of Columbia has its own 
workers' compensation program to provide benefits to workers who are 
injured on the job or contract a work-related illness. Benefits include 
medical treatment and cash payments that partially replace lost wages. 
Collectively, these state programs paid more than $46 billion in cash 
and medical benefits in 2001. In general, employers finance workers' 
compensation programs. Depending on state law, employers finance these 
programs through one of three methods: (1) they pay insurance premiums 
to a private insurance carrier; (2) they contribute to a state workers' 
compensation fund; or (3) they set funds aside for this purpose as 
self-insurance. Although state workers' compensation laws were enacted 
in part as an attempt to avoid litigation over workplace accidents, the 
workers' compensation process is still generally adversarial, with 
employers and their insurers tending to challenge aspects of claims 
that they consider not valid.
    State workers' compensation programs vary as to the level of 
benefits, length of payments, and time limits for filing. For example, 
in 1999, the maximum weekly benefit for a total disability in New 
Mexico was less than $400, while in Iowa it was approximately $950. In 
addition, in Idaho, the weekly benefit for total disability would be 
reduced after 52 weeks, while in Iowa benefits would continue at the 
original rate for the duration of the disability. Further, in 
Tennessee, a claim must be filed within 1 year of the beginning of 
incapacity or death. However, in Kentucky a claim must be filed within 
3 years of exposure to most substances, but within 20 years of exposure 
to radiation or asbestos.
     energy has fully processed few cases, and systems limitations 
                     complicate program management
    As of June 30, 2003, Energy had completely processed about 6 
percent of the nearly 19,000 cases that had been filed, and the 
majority of all cases filed were associated with facilities in nine 
states. Forty percent of cases were in processing, but more than 50 
percent remained unprocessed. While some case characteristics can be 
determined, such as illness claimed, systems limitations prevent 
reporting on other case characteristics, such as the reasons for 
ineligibility or basic demographics.
About 6 Percent of Cases Have Been Fully Processed
    During the first 2 years of the program, ending June 30, 2003, 
Energy had fully processed about 6 percent of the nearly 19,000 claims 
it received. The majority of these claims had been found ineligible 
because of either a lack of employment at an eligible facility or an 
illness related to toxic exposure. Of the cases that had been fully 
processed, 42 cases--less than one-third of 1 percent of the nearly 
19,000 cases filed--had a final determination from a physician panel. 
More than two-thirds of these determinations (30 cases) were positive. 
At the time of our study, Energy had not yet begun processing more than 
half of the cases, and an additional 40 percent of cases were in 
processing (see fig. 2). The majority of cases being processed were in 
the case development stage, where Energy requests information from the 
facility at which the claimant was employed. Less than 1 percent of 
cases in process were ready for physician panel review, and an 
additional 1 percent were undergoing panel review.
    A majority of cases were filed early during program implementation, 
but new cases continue to be filed. Nearly two-thirds of cases were 
filed within the first year of the program, between July 2001 and June 
2002. However, in the second year of the program--between July 2002 and 
June 30, 2003--Energy continued to receive more than 500 cases per 
month. Energy officials report that they currently receive 
approximately 100 new cases per week.
    While cases filed are associated with facilities in 38 states or 
territories, the majority of cases are associated with Energy 
facilities in rune states (see fig. 3).\3\ Facilities in Colorado, 
Idaho, Iowa, Kentucky, New Mexico, Ohio, South Carolina, Tennessee, and 
Washington account for more than 75 percent of cases received by June 
30, 2003. The largest group of cases associated with facilities in 
Tennessee.
---------------------------------------------------------------------------
    \3\ See Energy's Web site at: http://tis.eh.doe.gov/advocacy/
index.html for more information on the current distribution of cases 
across facilities and states.
---------------------------------------------------------------------------
    Workers filed the majority of cases, and cancer is the most 
frequently reported illness. Workers filed about 60 percent of cases, 
and survivors of deceased workers filed about 36 percent of cases. In 
about 1 percent of cases, a worker filed a claim that was subsequently 
taken up by a survivor. Cancer is the illness reported in more than 
half of the cases. Diseases affecting the lungs accounted for an 
additional 14 percent of cases. Specifically, chronic beryllium disease 
is reported in 1 percent of cases, and beryllium sensitivity, which may 
develop into chronic beryllium disease, is reported in an additional 5 
percent. About 7 percent of cases reported asbestosis, and less than 1 
percent claimed silicosis.
Systems Limitations Complicate Program Management
    Systems limitations prevent Energy officials from aggregating 
certain information important for program management. For example, the 
case management system does not collect information on the reasons that 
claimants had been declared ineligible or whether claimants have 
appealed decisions. Systematic tracking of the reasons for 
ineligibility would make it possible to identify other cases affected 
by appeal decisions that result in policy changes. While Energy 
officials report that during the major systems changes that occurred in 
July 2003, fields were added to the system to track appeals 
information, no information is yet available regarding ineligibility 
decisions. In addition, basic demographic data such as age and gender 
of claimants are not available. Gender information was not collected 
for the majority of cases. Further, insufficient edit controls--for 
example, error checking that would prevent claimants' dates of birth 
from being entered if the date was in the future--prevent accurate 
reporting on claimants' ages.
    Insufficient strategic planning regarding data collection and 
tracking have made it difficult for Energy officials to completely 
track case progress and determine whether they are meeting the goals 
they have established for case processing. For example, Energy 
established a goal of completing case development within 120 days of 
case assignment to a case manager. However, the data system developed 
by contractors to aid in case management was developed without detailed 
specifications from Energy and did not originally collect sufficient 
information to track Energy's progress in meeting this 120-day goal. 
Furthermore, status tracking has been complicated by changes to the 
system and failure to consistently update status as cases progress. 
While Energy reports that changes made as of July 2003 should allow for 
improved tracking of case status, it is unclear whether these changes 
will be applied retroactively to status data already in the system. If 
they are not, Energy will still lack complete data regarding case-
processing milestones achieved prior to these changes.
  while a majority of cases potentially have a willing payer, actual 
                      compensation is not certain
    Our analysis shows that a majority of cases associated with major 
Energy facilities in nine states \4\ will potentially have a willing 
payor of workers' compensation benefits. This finding reflects the 
number of cases for which contractors and their insurers are likely to 
not contest a workers' compensation claim, rather than the number of 
cases that will ultimately be paid. The contractors considered to be 
willing payors are those that have an order from, or agreement with, 
Energy to not contest claims. However, there are likely to be many 
claimants who will not have a willing payor in certain states, such as 
Ohio and Iowa. For all claimants, additional factors such as state 
workers' compensation provisions or contractors' uncertainty on how to 
compute the benefit may affect whether or how much compensation is 
paid.
---------------------------------------------------------------------------
    \4\ The cases in these nine states represent more than three-
quarters of the cases filed nationwide. The results of our analysis 
cannot necessarily be applied to the remaining 25 percent of the cases 
filed nationwide.
---------------------------------------------------------------------------
A Majority of Cases in Nine States Will Potentially Have a Willing 
        Payer
    A majority of cases in nine states will potentially have a willing 
payor of workers' compensation benefits, assuming that for all cases 
there has been a positive physician panel determination and the 
claimant can demonstrate a loss from the worker's illness that has not 
previously been compensated. Specifically, based on our analysis of 
workers' compensation programs and the different types of workers' 
compensation coverage used by the major contractors, it appears that 
approximately 86 percent of these cases will potentially have a willing 
payor--that is, contractors and their insurers who will not contest the 
claims for benefits. It was necessary to assume that all cases filed 
would receive a positive determination by a physician panel because 
sufficient data are not available to project the outcomes of the 
physician panel process.
    More specifically, there are indications that the few cases that 
have received determinations from physician panels may not be 
representative of all cases filed, and sufficient details on workers' 
medical conditions were not available to enable us to independently 
judge the potential outcomes. In addition, we assumed that all workers 
experienced a loss that was not previously compensated because 
sufficient data were not available to enable us to make more detailed 
projections on this issue.
    As shown in table 1, most of the contractors for the major 
facilities in these states are self-insured, which enables Energy to 
direct them to not contest claims that receive a positive medical 
determination.\5\ In addition, the contractor in Colorado, which is not 
self-insured but has a commercial policy, took the initiative to enter 
into an agreement with Energy to not contest claims. The contractor 
viewed this action as being in its best interest to help the program 
run smoothly. However, it is unclear whether the arrangement will be 
effective because no cases in Colorado have yet received compensation. 
In such situations where there is a willing payor, the contractor's 
action to pay the compensation consistent with Energy's order to not 
contest a claim will override state workers' compensation provisions 
that might otherwise result in denial of a claim, such as failure to 
file a claim within a specified period of time. However, since no 
claimants to date have received compensation as a result of their cases 
filed with Energy, there is no actual experience about how contractors 
and state workers' compensation programs treat such cases.
---------------------------------------------------------------------------
    \5\ EEOICPA allows Energy, to the extent permitted by law, to 
direct its contractors not to contest such workers' compensation 
claims. In addition, Energy's regulations prohibit the inclusion of the 
costs of contesting such claims as allowable costs under its contracts 
with the contractors; however, the costs incurred as the result of a 
workers' compensation award are allowed as reimbursable costs to the 
full extent permitted under the contracts.
---------------------------------------------------------------------------
    About 14 percent of cases in the nine states we analyzed may not 
have a willing payor. Therefore, in some instances these cases may be 
less likely to receive compensation than a comparable case for which 
there is a willing payor, unless the claimant is able to overcome 
challenges to the claim. Specifically, these cases that lack willing 
payors involve contractors that (1) have a commercial insurance policy; 
(2) use a state fund to pay workers' compensation claims; or (3) do not 
have a current contract with Energy. In each of these situations, 
Energy maintains that it lacks the authority to make or enforce an 
order to not contest claims. For instance, an Ohio Bureau of Workers' 
Compensation official said that the state would not automatically 
approve a case, but would evaluate each workers compensation case 
carefully to ensure that it was valid and thereby protect its state 
fund.

                                   Table 1: EXTENT TO WHICH CASES IN NINE STATES WILL POTENTIALLY HAVE WILLING PAYERS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                      Number of case as
                 Types of workers' compensation coverage                                    Energy facility, State                    reported in Energy
                                                                                                                                             data
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cases that will potentially have a willing payor
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self-insurance
                                                                           Idaho National Engineering Lab, Idaho                     724
                                                                           Paducah Gaseous Diffusion Plant, Kentucky                 978
                                                                           Los Alamos National Lab, New Mexico                       1,043
                                                                           Savannah River Site, South Carolina                       2,873
                                                                           Oak Ridge K-25, X-10, and Y-12 Plants, Tennessee 3,325
                                                                           Hanford Site, Washington                                  1,664
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial policy, agreement with Energy not to contest claims             Rocky Flats Plant, Colorado                               1,488
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subtotal of cases with a willing payor                                                                                               86%, or 12,095
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cases That May Not Have a Willing Payer
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial policy, no agreement with Energy to not contest claims; leases  Paducah Gaseous Diffusion Plant, Kentucky                 977
 Energy facility
--------------------------------------------------------------------------------------------------------------------------------------------------------
State fund                                                                 Portsmouth Gaseous Diffusion Plant, Ohio                  506
--------------------------------------------------------------------------------------------------------------------------------------------------------
No current contractor                                                      Iowa Ordnance Plant, Iowa                                 563
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subtotal of cases without a willing payor                                                                                            14%, or 2,046
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: GAO analysis of Energy data and interviews with current contractors.
Note: The table includes the cases from the facilities in these states with the largest number of case filed but does not include the remaining 721
  cases (5 percent) from other facilities in these states.
While an Energy contractor previously operated the Paducah Gaseous Diffusion Plant, the plant is currently operated by a private entity that leases the
  facility. In addition, an Energy contractor is currently performing environmental cleanup at the facility. We split the cases filed for the Paducah
  facility evenly between the current operator and the cleanup contractor, based on discussions with the cleanup contractor.

    Concerns about the extent to which there will be willing payors of 
benefits have led to various proposals for addressing this issue. For 
example, the state of Ohio proposed that Energy designate the state as 
a contractor to provide a mechanism for reimbursing the state for 
paying the workers' compensation claims. However, Energy rejected this 
proposal on the ground that EEOICPA does not authorize the agency to 
establish such an arrangement. In a more wide-ranging proposal, 
legislation introduced in this Congress \6\ proposes to establish 
Subtitle D as a federal program with uniform benefits administered by 
the Department of Labor.
---------------------------------------------------------------------------
    \6\ H.R. 1758, sponsored by Representative Ted Strickland, was 
introduced on April 10, 2003.
---------------------------------------------------------------------------
Multiple Factors Make Compensation Not Certain
    In contrast to Subtitle B provisions that provide for a uniform 
federal benefit that is not affected by the degree of disability, 
various factors may affect whether a Subtitle D claimant is paid under 
the state workers' compensation program or how much compensation will 
be paid. Beyond the differences in the state programs that may result 
in varying amounts and length of payments, these factors include the 
demonstration of a loss resulting from the illness and contractors' 
uncertainty on how to compute compensation.
    Even with a positive determination from a physician panel and a 
willing payor, claimants who cannot demonstrate a loss, such as loss of 
wages or medical expenses, may not qualify for compensation. On the 
other hand, claimants with positive determinations but not a willing 
payor may still qualify for compensation under the state program if 
they show a loss and can overcome all challenges to the claim raised by 
the employer or the insurer.
    Contractors' uncertainty on how to compute compensation may also 
cause variation in whether or how much a claimant will receive in 
compensation. While contractors with self-insurance told us that they 
plan to comply with Energy's directives to not contest cases with 
positive determinations, some contractors were unclear about how to 
actually determine the amount of compensation that a claimant will 
receive. For example, one contractor raised a concern that no guidance 
exists to inform contractors about whether they can negotiate the 
degree of disability, a factor that could affect the amount of the 
workers' compensation benefit. Other contractors will likely experience 
similar situations, as Energy has not issued guidance on how to 
consistently compute compensation amounts.
    While not directly affecting compensation amounts, a related issue 
involves how contractors will be reimbursed for claims they pay. Energy 
uses several different types of contracts to carry out its mission, 
such as operations or cleanup, and these different types of contracts 
affect how workers' compensation claims will be paid. For example, a 
contractor responsible for managing and operating an Energy facility 
was told to pay the workers' compensation claims from its operating 
budget. The contractor said that this procedure may compromise its 
ability to conduct its primary responsibilities. On the other hand, a 
contractor cleaning up an Energy facility was told by Energy officials 
that its workers' compensation claims would be reimbursed under its 
contract, and therefore paying claims would not affect its ability to 
perform cleanup of the site.
    bottlenecks in energy's claims process delay filing of workers' 
                          compensation claims
    As a result of Energy's policies and procedures for processing 
claims, claimants have experienced lengthy delays in receiving the 
determinations they need to file workers' compensation claims. In 
particular, the number of cases developed during initial case 
processing has not always been sufficient to allow the physician panels 
to operate at full capacity. Moreover, even if these panels were 
operating at full capacity, the small pool of physicians qualified to 
serve on the panels would limit the agency's ability to produce more 
timely determinations. Energy has recently allocated more funds for 
staffing for case processing, but it is still exploring methods for 
improving the efficiency of its physician panel process.
Sufficient Cases Have Not Always Been Available for Physician Panel 
        Review
    Energy's case development process has not consistently produced 
enough cases to ensure that the physician panels are functioning at 
full capacity. To make efficient use of physician panel resources, it 
is important to ensure that a sufficient supply of cases is ready for 
physician panel review. Energy officials established a goal of 
completing the development on 100 cases per week by August 2003 to keep 
the panels fully engaged.
    However, as of September 2003, Energy officials stated that the 
agency was completing development of only about 40 cases a week. 
Further, while agency officials indicated that they typically assigned 
3 cases at a time to be reviewed within 30 days, several panel 
physicians indicated that they received fewer cases, some receiving a 
total of only 7 or 8 during their first year as a panelist.
    Energy was slow to implement its case development operation. 
Initially, agency officials did not have a plan to hire a specific 
number of employees for case development, but they expected to hire 
additional staff as they were needed. When Energy first began 
developing cases, in the fall of 2002, the case development process had 
a staff of about 14 case managers and assistants. With modest staffing 
increases, the program quickly outgrew the office space used for this 
function.
    Though Energy officials acknowledged the need for more personnel by 
spring 2003, they delayed hiring until additional space could be 
secured, in August. As of August 2003, Energy had more than tripled the 
number of employees dedicated to case development to about 50, and 
Energy officials believe that they will now be able to achieve their 
goal of completing development of 100 cases a week that will be ready 
for physician panel review.
    Energy officials cited a substantial increase in the number of 
cases ready for physician panel review during October 2003, and 
reported preparing more than a hundred cases for panel review in the 
first week of November 2003.
    Energy shifted nearly $10 million from other Energy accounts into 
this program in fiscal year 2003, and plans to shift an additional $33 
million into the program in fiscal year 2004, to quadruple its case-
processing operation. With additional resources, Energy plans to 
complete the development of all pending cases as quickly as possible 
and have them ready for the physician panels. However, this would 
create a large backlog of cases awaiting review by physician panels. 
Because most claims filed so far are from workers whose medical 
conditions are likely to change over time, creation of such a backlog 
could further slow the decision process by making it necessary to 
update medical records before panel review.
The Ability to Produce More Timely Decisions May Be Limited by the 
        Small Pool of Qualified Physicians and Gaps in Information They 
        Need to Quickly Decide Cases
    Even if additional resources allow Energy to speed initial case 
development, the limited pool of qualified physicians \7\ for panels 
will likely prevent significant improvements in processing time. 
Currently, approximately 100 physicians are assigned to panels of 3 
physicians. In an effort to improve overall processing time, Energy has 
requested that NIOSH appoint an additional 500 physicians to staff the 
panels. NIOSH has indicated that the pool of physicians with the 
appropriate credentials and experience (including those already 
appointed) may be limited to about 200.
---------------------------------------------------------------------------
    \7\ The criteria NIOSH uses to evaluate qualifications for 
appointing physicians to these panels include: (1) board certification 
in a primary discipline; (2) knowledge of occupational medicine; (3) 
minimum of 5 years of relevant clinical practice following residency; 
and (4) reputation for good medical judgment, impartiality, and 
efficiency.
---------------------------------------------------------------------------
    Even if Energy were able to increase the number of panel physicians 
to 200, with each panel reviewing 3 cases a month, the panels would not 
be able to review more than 200 cases in any 30-day period, given 
current procedures. Thus, even with double the number of physicians 
currently serving on panels, it could take more than 7 years to process 
all cases pending as of June 30, 2003, without consideration of the 
hundreds of new cases the agency is receiving each month.\8\
---------------------------------------------------------------------------
    \8\ This 7-year estimate assumes that none of the pending cases 
would be determined ineligible on the basis of non-covered employment 
or illnesses because we did not possess a sufficient basis for 
projecting the number of additional cases that would be determined 
ineligible in the future.
---------------------------------------------------------------------------
    Energy officials are exploring ways that the panel process could be 
made more efficient. For example, the agency is currently planning to 
establish permanent physician panels in Washington, DC. Physicians who 
are willing to serve full-time for a 2- or 3-week period would staff 
these panel. In addition, the agency is considering reducing the number 
of physicians serving on each panel--for example, initially using one 
physician to review a case, assigning a second physician only if the 
first reaches a negative determination, and assigning a third physician 
if needed to break a tie. Energy staff are currently evaluating whether 
such a change would require a change in their regulations.
    Agency officials have also recommended additional sources from 
which NIOSH might recruit qualified physicians and are exploring other 
potential sources. For example, the physicians in the military services 
might be used on a part-time basis. In addition, physicians from the 
Public Health Service serve on temporary full-time details as panel 
physicians.
    Panel physicians have also suggested methods to Energy for 
improving the efficiency of the panels. For example, some physicians 
have stated that more complete profiles of the types and locations of 
specific toxic substances at each facility would speed their ability to 
decide cases. In addition, one panel physician told us that one of the 
cases he reviewed received a negative determination because specific 
documentation of toxic substances at the worker's location was lacking. 
While Energy officials reported that they have completed facility 
overviews for about half the major sites, specific data are available 
for only a few sites. Agency officials said that the scarcity of 
records related to toxic substances and a lack of sufficient resources 
constrain their ability to pursue building-by building profiles for 
each facility.
    Mr. Chairman, this completes my prepared statement. I would be 
happy to respond to any questions you or other members of the Committee 
may have at this time.

    Senator Bunning. Dr. Burton.

  STATEMENT OF JOHN F. BURTON, JR., Ph.D., PROFESSOR, RUTGERS 
                           UNIVERSITY

    Dr. Burton. Senator Bunning, thank you. My name is John 
Burton and I am here on my own behest, I guess, at the request 
of the committee. I served as a member of the Workers Advocacy 
Advisory Committee for the Department of Energy in 2001 and 
2002. I previously served as the chairman of the National 
Commission on State Workman's Compensation Laws, which 
submitted its report in 1972.
    My views on the proper method to compensate workers who 
participated in the nuclear weapons program have evolved. My 
starting point reflected the attitude of the National 
Commission, which supported Federal standards for State workers 
compensation programs but opposed federalization of those State 
programs. My preference for State-administered programs led me 
to support the initial concept of subtitle D of the act, which 
essentially relied on State workers compensation programs to 
deliver benefits to workers from the nuclear weapons industry.
    Many of these workers did not qualify for workers 
compensation benefits under the compensability rules included 
in most State workers compensation programs. Nonetheless, I 
assumed that those parties interested in State workers 
compensation programs would welcome the opportunity to rectify 
the deficiencies of these State programs because of the 
compelling case presented by disabled workers or their 
survivors in the industry and because of the interest of the 
parties in workers compensation to demonstrate that the State 
programs could adapt to the demonstrated deficiencies.
    My views have changed over the 3 years since the act was 
enacted about the desirability and the feasibility of the 
approach used in subtitle D. There are several reasons why my 
views have changed. First, my conversations and meetings with 
State workers compensation administrators indicated that many 
of them did not view the act as an effort to preserve essential 
elements of State workers compensation programs, but rather as 
a Federal program incompatible with the purposes of the State 
programs. These administrators essentially say they would 
prefer a pure Federal program that does not force them to bend 
the normal compensability rules in their State programs.
    Second, some States have gone beyond the mere expression of 
uneasiness with the prospects of bending the spirit of the act, 
namely to reach out to workers who historically did not meet 
the compensability test for workers compensation benefits, they 
have gone beyond uneasiness to establishing a hostile 
environment for workers with subtitle D claims.
    A third reason why I have serious doubts about the subtitle 
D approach is that even in States where the workers 
compensation agency is sympathetic to the spirit of the act and 
is willing to stretch the legal rules as far as possible, there 
are serious legal problems in processing claims. For example, 
even if a claim is accepted, how is the extent of disability to 
be determined.
    If, for example, a worker has a condition that the employer 
concedes is compensable and the worker asserts she is 80 
percent disabled, but the employer feels she is only 30 percent 
disabled, can the employer present evidence to support the 
employer's view? If so, will the Department of Energy reimburse 
the employer for the expenses associated with presenting this 
evidence?
    A fourth reason why the subtitle D approach is questionable 
is that there apparently are a significant number of workers 
for whom there is no willing payor. We have heard testimony on 
that certainly this morning. At a minimum, there appear to be 
15 percent of workers who would qualify for benefits but for 
whom there are no contractors or insurers who can be ordered or 
even encouraged to pay benefits.
    These reasons have persuaded me that the current approach 
to compensating workers from the nuclear weapons industry 
contained in subtitle D is fatally flawed. I reluctantly 
concluded that the approach that attempts to blend Federal and 
State procedures and criteria for benefits will not work. My 
suggestion is that subtitle D be abandoned in favor of a 
Federal program of benefits for disabled workers or their 
survivors in the nuclear weapons industry who can establish 
that their medical conditions are a result of occupational 
conditions or exposures in the industry.
    I will not try to specify the details of such a program 
here. The compensability rules being used by the physicians 
panels should be the starting point for determining 
eligibility. The starting point for benefits should be the 
Model Workers Compensation Act which was published by the 
Council of State Governments in the 1970's.
    The current issue about whether the administration of 
subtitle D benefits should be transferred from the Department 
of Energy to the Department of Labor is in my view of secondary 
importance to establishing a viable program of benefits for 
those workers covered by subtitle D. The Department of Labor 
appears to be doing a commendable job of administering the 
subtitle B benefits, especially those included in the special 
exposure cohort.
    However, if the current subtitle D claims were transferred 
to the Department of Labor without changes in the basic design 
of the program, the Department of Labor would face most of the 
fundamental reasons specified above why the subtitle D claims 
are not viable, such as the problems of recalcitrant, if not 
hostile, State workers compensation agencies and the lack of 
willing payors. These problems are not going to disappear by 
moving the files from Independence Avenue to Constitution 
Avenue.
    [The prepared statement of Dr. Burton follows:]
     Prepared Statement of John F. Burton, Jr., Ph.D., Professor, 
                           Rutgers University
    Mr. Chairman and members of the committee: My name is John Burton. 
I am appearing at the request of the Committee on Energy and Natural 
Resources. I am a Professor in the School of Management and Labor 
Relations at Rutgers: The State University of New Jersey. I am 
currently the Chair of the Steering Committee on Workers' Compensation 
of the National Academy of Social Insurance and a member of the 
Advisory Council on Workers' Compensation for the Commissioner of the 
New Jersey Department of Labor. I am, however, submitting this 
statement on my own and not as a representative of these organizations
    I served as a member of the Workers Advocacy Advisory Committee 
(WAAC) for the Department of Energy in 2001-02. I previously served as 
the Chairman of the National Commission on State Workmen's Compensation 
Laws, which submitted its report to the President and the Congress in 
1972.
    I am attaching a statement submitted to a Hearing on Proposed 
Physician Panel Rules held by the Department of Energy on October 10, 
2001.* Subsequent to that hearing, I attended various meetings of the 
WAAC, and I chaired a meeting of the Contractors and Insurers 
Cooperation Subcommittee of the Workers Advocacy Advisory Committee in 
December 2002. Since the demise of the WAAC at the end of 2002, I have 
been much less involved in monitoring developments under the EEPOCA, 
although I have read a number of reports, news articles, editorials, 
and documents concerning recent developments under the program.
---------------------------------------------------------------------------
    * The attachment has been retained in committee files.
---------------------------------------------------------------------------
    My views on the proper method to compensate workers who 
participated in the nuclear weapons program have evolved. My starting 
point reflected the attitude of the National Commission on State 
Workmen's Compensation Laws, which supported federal standards for 
state workers' compensation programs, but opposed federalization of the 
state programs. I use the term ``federalization'' to mean a uniform set 
of standards established by the Federal government and operation of the 
program by federal employees. My aversion to federalization was based 
in part on my perception that historically federal workers' 
compensation programs, notably the Federal Employees Compensation Act 
(FECA), were not particularly well designed or administered.
    My preference for state-administered programs led to me support the 
initial concept of Subtitle D of the EEOICPA, which essentially relied 
on state workers' compensation programs to deliver benefits to workers 
from the nuclear weapons industry. Many of these workers did not 
qualify for workers' compensation benefits under the compensability 
rules included in most state workers' compensation programs. 
Nonetheless, I assumed that those parties interested in state workers' 
compensation programs, including state administrators, private 
insurance carriers, and employers, would welcome the opportunity to 
rectify the deficiencies of the state programs because of the 
compelling case presented by disabled workers or their survivors in 
this industry and because of the interest of the parties in workers' 
compensation to demonstrate that the state programs could adapt to the 
demonstrated deficiencies.
    My views have changed over the three years since the EEOICPA was 
enacted about the desirability and feasibility of the approach used in 
Subtitle D, which largely relies on state workers' compensation 
programs to provide benefits to deserving workers and their families. 
There are several reasons why my views have changed. First, my 
conversations and meetings with state workers' compensation 
administrators indicated that many of them did not view the EEOCIPA as 
an effort to preserve essential elements of state workers' compensation 
programs, but rather as a federal program incompatible with the 
purposes of the state programs. These administrators essentially said 
they would prefer a pure federal program that does not force them to 
bend the normal compensability rules in their state programs. Second, 
some states have gone beyond the mere expression of uneasiness with the 
prospects of blending the spirit of the EEOCIPA (namely to reach out to 
workers who historically did not meet the compensability tests for 
workers' compensation benefits) to establishing a hostile environment 
for workers with Subtitle D claims.
    A third reason why I have serious doubts about the Subtitle D 
approach is that even in states where the workers' compensation agency 
is sympathetic to the spirit of the EEOICPA and is willing to stretch 
the legal rules as far as possible, there are still serious legal 
problems in processing claims. For example, even if a claim is 
accepted, how is the extent of disability to be determined? A 
contractor may follow DOE directives and not contest the compensability 
of the claim, but the most vexing issue in many workers' compensation 
cases is the extent of disability. The most expensive and controversial 
type of workers' compensation claim is one in which the worker is 
permanently and partially disabled. If the worker has a condition that 
the employer concedes is compensable, and the worker asserts she is 80 
disabled but the employer feels she is only 30 disabled, can the 
employer present evidence to support the employer's view? If so, will 
the DOE reimburse the employer for the expenses associated with 
presenting this evidence?
    A fourth reason why the Subtitle D approach is questionable is that 
there apparently are a significant number of workers for whom there is 
no willing payor. At a minimum, there appear to be 15 percent of 
workers who would qualify for benefits but for whom there are no 
contractors or insurers who can be ordered or even encouraged to pay 
benefits. (The failure to have a better estimate of the magnitude of 
this problem is frustrating, because the WAAC encouraged the Department 
of Energy to devote resources to clarifying this issue on several 
occasions with little success. For example, we suggested that a random 
sample of several hundred cases be drawn from all the applicants and 
the payor status of these cases be examined. To the best of my 
knowledge, the DOE has never implemented this suggestion.)
    These reasons have persuaded me that the current approach to 
compensating workers from the nuclear weapons industry contained in 
Subtitle D is fatally flawed. I have reluctantly concluded the approach 
that attempts to blend federal and state procedures and criteria for 
benefits will not work. (I want to make clear that I still support 
federal standards for state workers' compensation programs of the type 
recommended by the National Commission on State Workmen's Compensation 
Laws.)
    My suggestion is that Subtitle D be abandoned in favor of a federal 
program of benefits for disabled workers (or their survivors) in the 
nuclear weapons industry who can establish that their medical 
conditions are a result of occupational conditions or exposures. I will 
not try to specify the details of such a program here. The 
compensability rules being used by the physicians' panels should be the 
starting point for determining eligibility. The starting point for 
benefits should be the Model Workers' Compensation Act (Revised), which 
was published by the Council of State Government in the 1970s. (The 
Federal Employees Compensation Act is not an appropriate starting 
point.)
    The current issue about whether the administration of Subtitle D 
benefits should be transferred from the Department of Energy to the 
Department of Labor is, in my view, of secondary importance to 
establishing a viable program of benefits for those workers covered by 
Subtitle D. The Department of Labor appears to be doing a commendable 
job of administering the Subtitle B benefits, especially those included 
in the special exposure cohort (SEC). However, for those claimants 
under Subtitle B for whom the Department of Labor relies on NIOSH to 
construct individual dose reconstruction or to designate additional 
members of the SEC, the Department of Labor has processed only a small 
percentage of claims, which suggests there is no inherent advantage to 
having the Department of Labor responsible for administering claims. 
Moreover, if the current Subtitle D claims were transferred to the 
Department of Labor without changes in the basic design of the program, 
the Department would face most of the fundamental reasons specified 
above why the Subtitle D claims are not viable, such as the problems of 
recalcitrant if not hostile state workers' compensation agencies and 
the lack of willing payors. These problems are not going to disappear 
by moving the files from Independence Avenue to Constitution Avenue.

    Senator Bunning. You are the first person what ever did it 
exactly in 5 minutes. Congratulations.
    Mr. Leon Owens.
    Dr. Burton. There must be a Nobel Prize or something.
    Senator Bunning. Something, something special.

STATEMENT OF LEON OWENS, PRESIDENT, PACE LOCAL 5-550, PADUCAH, 
                               KY

    Mr. Owens. Good morning, Senator Bunning.
    Senator Bunning. Good morning.
    Mr. Owens. My name is Leon Owens. I am employed as a 
production cascade operator at the Paducah Gaseous Diffusion 
Plant in Paducah, Kentucky. Before the privatization of the 
United States Enrichment Corporation, I was employed by DOE 
contractors. I serve as the president of PACE Local 5-550 in 
Paducah, which represents 750 hourly maintenance, production, 
and environmental cleanup workers at the site. I also serve on 
the Federal Advisory Board on Radiation and Worker Health, 
which by law is required to advise and audit the NIOSH 
radiation dose reconstruction process. However, I am here in my 
capacity as president of the local union which represents 
workers at Paducah.
    Until the Washington Post article appeared on August 8, 
1999, most Paducah workers, including myself, did not realize 
they were potentially exposed to toxic substances, such as 
plutonium, neptunium, and technetium compounds. Senate Energy 
Committee field hearings held by you and subsequent investments 
by the Department of Energy confirmed that workers were exposed 
for decades to these extremely radiotoxic elements, up to 2,000 
times the maximum threshold levels. Furthermore, adequate 
respiratory protection and radiation monitoring were not 
provided for over 40 years.
    A March 11, 1960, memorandum from the Director of the 
Atomic Energy Commission's Division of Biology and Medicine 
states: ``There are possibly 300 people at Paducah who should 
be checked out for neptunium exposure, but they hesitate to 
proceed to the intensive studies because of the union's use of 
this as an excuse for hazard pay.''
    The memo further stated to ``get post-mortem samples on any 
of these potentially contaminated men for correlation of tissue 
content with urine output, but I am afraid the policy at this 
plant is to be wary of the unions and any unfavorable public 
relations.''
    In 1999, the Department of Energy medical screening program 
was initiated at Paducah. Approximately 1900 workers have been 
screened and physicians have diagnosed lung diseases for which 
there is an occupational contribution in 24 percent of the 
workers they have examined. In addition, 42 individuals have 
had at least one positive blood test for beryllium sensitivity.
    2,215 subtitle D claims have been filed in Paducah and to 
my knowledge only one claim has been moved through the 
physicians panel and not a single claim has been paid. Even if 
a valid claim had been approved through the physicians panel, 
it is unclear whether there will be a willing payor because DOE 
cannot direct USEC to abide by physicians panel determinations 
and private insurers on any of the claims from the Union 
Carbide era. The memorandum of agreement that DOE entered into 
with the State of Kentucky makes it plain that DOE cannot 
direct the State of private insurance companies to honor DOE's 
physicians panel findings.
    Mr. Chairman, when this historic piece of legislation was 
enacted Congress knew that subsequent enabling legislation was 
needed. That is why it directed the administration to submit 
subsequent enabling legislation no later than March 15, 2001, 
and it further directed the General Accounting Office to 
evaluate the effectiveness of DOE's implementation of subtitle 
D no later than February 1, 2002.
    The DOE lacks the capacity to effectively administer claims 
processing responsibilities. Furthermore, its performance and 
broken commitments justify a change. The union supported the 
Grassley-Murkowski amendment as well as the Energy Workers 
Compensation Act which was filed in the 107th Congress by 
Senator Bingaman and Senator Bunning. These legislative 
vehicles would rectify the existing problems with subtitle D by 
transferring the administration of subtitle D claims to the 
Department of Labor and provide for a willing payor for all 
valid claims.
    The DOL has swiftly implemented a well-run program in 
administering subtitle B claims and the DOL has not only the 
expertise and infrastructure to correct DOE's flawed program, 
but also the excess capacity to process more claims because it 
has worked off most of its backlog.
    Mr. Chairman, we understand that DOE has received 
recommendations from the Hays Company, a consultant it brought 
in to tell its contractor how to do better. The recommendations 
call for shifting the burden back to the employee when there is 
little or no known medical causation. Using this new standard, 
DOE could clear out its backlog of claims in a matter of 
months. This recommendation prejudges cases even before they 
arrive at the physicians panel.
    We urge legislative reforms because time is running out for 
many of these sick workers, who performed an essential function 
and mission for the U.S. Government and have been put at 
needless risk and harmed by DOE and its contractors.
    Thank you very much.
    [The prepared statement of Mr. Owens follows:]
             Prepared Statement of Leon Owens, President, 
                     PACE Local 5-550, Paducah, KY
    My name is Leon Owens. I am employed as a ``cascade operator'' at 
the Paducah Gaseous Diffusion Plant (PGDP) in Paducah, Kentucky. I have 
been employed by Department of Energy (DOE) contractors, USEC (the 
government-owned corporation) contractors, and I am now employed by 
USEC, Inc. I serve as President of Local 5-550 of the Paper, Allied-
Industrial, Chemical & Energy Workers Union (PACE), which represents 
hourly maintenance, production and environmental cleanup workers at the 
Paducah plant. My address is 315 Palisades Circle, Paducah, KY 42001. 
Phone: 270-554-7818 (h).
    I serve on the Advisory Board on Radiation and Worker Health 
(ABRWH), which advises the Secretary of Health and Human Services on 
the implementation of NIOSH's responsibilities under the Energy 
Employees Occupational Illness Compensation Program Act (EEOICPA).
    operations at paducah were extremely hazardous and workers were 
        unprotected from radiological and toxic chemical hazards
    On September 20, 2000, Senator Jim Bunning held an Energy Committee 
field hearing in Paducah to investigate claims about how workers at the 
Paducah Gaseous Diffusion Plant (``PGDP'') were exposed to highly 
radiotoxic substances, particular plutonium and neptunium, for over 40 
years without ever knowing or being monitored. During the cold war, the 
number one priority at the PGDP was the production of enriched uranium, 
and this took precedence over safety.
    During the process of working with irradiated recycled uranium and 
converting it into uranium hexaflouride (``UF6'')--the feed material 
for the uranium enrichment plant--workers were unknowingly exposed to 
uranium dusts laced with plutonium-239, neptunium-237, and technetium-
99. Until a Washington Post article appeared on August 8, 1999, most 
workers, including myself, did not know we were potentially exposed to 
plutonium.
    When ambient air sampling was conducted in the 1960's, airborne 
concentrations were found in excess of 100 times the PGDP's maximum 
permissible level for neptunium-237. When the PGDP Health Physics 
Department surveyed the Convertor Shop (C-720) in 1980, airborne levels 
of alpha emitting radiation exceeded the plant guidance by a factor of 
1,680 for uranium, by a factor of 2,121 for neptunium-237, and by a 
factor of 2,483 for plutonium-239.\1\ AEC implemented a plan to keep 
workers in the dark about their exposures for over 40 years.
---------------------------------------------------------------------------
    \1\ Phase II Independent Investigation of the Paducah Gaseous 
Diffusion Plant, Environment, Safety and Health Practices 1952-1990, 
U.S. Department of Energy, Office of Oversight/Environment, Safety and 
Health.
---------------------------------------------------------------------------
    A 1960 Atomic Energy Commission memo entitled Neptunium-237 
Contamination Problem, Paducah, Kentucky, stated: \2\
---------------------------------------------------------------------------
    \2\ Neptunium-237 Contamination Problem, Paducah, Kentucky, 
February 4, 1960, C.L. Dunham, MD, Director, AEC Division of Biology 
and Medicine and H.D. Brunner, MD, Chief of Medical Research, AEC 
Division of Biology and Medicine.

          ``There are possibly 300 people at Paducah who should be 
        checked out [for neptunium exposure], but they are hesitant to 
        proceed to intensive studies because of the union's use of this 
        as an excuse for hazard pay.'' (Attachment ``A'') *
---------------------------------------------------------------------------
    * Attachments have been retained in committee files.

    Neptunium-237 concentrates in the liver and bones, and by mass, is 
10,000 times more radiotoxic than uranium-238.\3\ With respect to the 
adequacy of respiratory protection, the memo added:
---------------------------------------------------------------------------
    \3\ EPA Guidance Report No. 11.

          ``I don't have too much faith in masks, and the dust 
        particles here are about 0.5 micron, the very worst size 
---------------------------------------------------------------------------
        biologically speaking.''

    Masks in that time period were WW-II vintage. There were filthy, 
hot, rarely worn, and would not have filtered particles that small. The 
memo also urged DOE's contractor, Union Carbide, to:

          ``get post mortem samples on any of these potentially 
        contaminated men for correlation of tissue content with urine 
        output, but I'm afraid the policy at this plant is to be wary 
        of the unions and any unfavorable public relations.''

    Until 1991--40 years after the memo was issued--DOE's contractor 
did not offer to test workers for uptake of neptunium, plutonium or 
technetium compounds.
    What this memo and monitoring data makes clear is that the workers 
at PGDP were put in harm's way knowingly and without adequate 
protections or monitoring. This was not mere happenstance. Conscious 
decisions were made not to notify or monitor workers for certain 
hazards out of public relations or fears of union demands.
    Our members' loyalty to the national defense mission of enriching 
uranium has never been in question. If called upon, we would do it 
again under the same conditions. However, this loyalty was not 
reciprocated by the government or its contractors.
    Health and safety controls were quite minimal over most of the life 
of this plant. We had no external oversight from OHSA or the Nuclear 
Regulatory Commission until the Energy Policy Act of 1992 required the 
two enrichment plants in Ohio and Kentucky be subjected to external 
regulation. Tens of millions were needed to upgrade safety and health 
conditions before the NRC would provide a certificate of compliance.

   The Paducah site did not have a contamination control 
        program for 40 years, leading to contamination of workers' 
        clothes, shoes and skin. The absence of controls led to workers 
        tracking radioactive contamination off site and into their 
        homes.
   Uranium fires self-ignited after workers dumped uranium 
        chips into open pits. Workers poured dirt over the burning 
        uranium to try to snuff it out, and had no respiratory 
        protection.
   After the processing of neptunium and plutonium contaminated 
        uranium stopped in the C-410 building, DOE converted it into an 
        employee locker room and electrical repair shop for 13 years. 
        Radiation was measured up to 350,000 dpm fixed in locker rooms. 
        Shower and toilet areas had 175,000 dpm fixed. These areas 
        should have been posted as contamination areas as this exceeded 
        DOE's 5000 dpm (fixed) threshold by 35-70 times.
             summary of findings from doe's investigations
    After the Washington Post articles about the whistleblower lawsuits 
at Paducah, the Department of Energy launched an in-depth assessment of 
historical worker safety practices at the three uranium enrichment 
plants. DOE's 76-page Independent Investigation of the Paducah Gaseous 
Diffusion Plant, 1953-1990, details many of the hazards, including:

   Acute and chronic exposures to chemical hazards such as 
        trichloroethylene, PCBs and hydrogen fluoride (``HF'') 
        occurred, and the potential risks of such exposures were not 
        fully recognized by workers or the Health Physics and Hygiene 
        department. Exposures to HF resulting in burns, respiratory 
        distress, and bleeding were frequent in the 1950s and 1960s, 
        and the potential long term health effects are unknown.
   There was a widespread belief that uranium did not present a 
        significant health risk to workers. Consequently, eating, 
        drinking and smoking in contaminated areas; failure to wash or 
        remove contaminated clothing before entering the cafeteria; and 
        wearing of contaminated clothing off site without monitoring 
        occurred during this period.
   Asbestos has been a significant hazard at the plant since 
        construction (1952). Asbestos fibers are carried into the body 
        as airborne particles, and these fibers can become embedded in 
        the tissues of the lung and digestive system. Once these fibers 
        become trapped in the alveoli, they cannot be removed. However, 
        asbestos hazards were not recognized, and routine monitoring of 
        asbestos did not begin until the 1980s.

    Until February 2000, DOE had never informed workers that beryllium 
was found at Paducah, although it had been previously identified in 
1994, and was machined as part of a Cold War weapons dismantlement 
project. Worker testing for beryllium did not begin until September 
2001 through the former worker medical screening program. Up to this 
point no one was protected from beryllium exposure.
 medical monitoring has uncovered occupational disease and saved lives
    The DOE Worker Medical Screening Program at Paducah has screened 
approximately 1900 workers to date. Physicians have diagnosed lung 
disease for which there is an occupational contribution in 24% of the 
workers they have examined. These pulmonary diseases include asbestos 
related conditions, chronic bronchitis, silicosis and emphysema. In 
addition, 42 individuals had at least one positive blood test 
(beryllium lymphocyte proliferation test) for beryllium sensitivity and 
1 case of chronic beryllium disease was identified.
    We are grateful that the Appropriations and Armed Services 
Committees have directed DOE to fund the enhanced medical screening 
program at Paducah, Portsmouth and Oak Ridge K-25. This screening 
program includes a mobile early lung cancer detection unit that uses a 
low-dose CT scanning technology. This lung screening is saving lives 
because the low dose CT scanner is successfully identifying cancers at 
stage 1--the earliest stage--and increasing the odds of survival for 
type of cancer that is fatal 85% of the times when it is detected at 
stage 3.
---------------------------------------------------------------------------
    \4\ Larynx cancer should be added as a listed cancer for members of 
the Special Exposure Cohort. Epidemiology studies of workers at Linde 
in Tonowanda, NY indicate a SMR of 4.47 for larynx cancer.
---------------------------------------------------------------------------
      special exposure cohort and the implications for subtitle d
    Paducah workers were placed into a Special Exposure Cohort as part 
of EEOICPA. Claimants receive a presumption of causation if (1) they 
contract one of 2 radiosensitive ``specified cancers'', (2) were 
employed for at least one year in a job that requires a radiation 
dosimeter, and (3) there is a 5-year minimum latency from first 
exposure to diagnosis for most cancers. Dose reconstruction is not 
required for those with the 22 ``specified'' cancers.
    The Special Exposure Cohort is similar to the presumption provided 
to certain Atomic Veterans who contract a listed cancer. And although 
we were not on the battlefield, we worked in a government defense plant 
with ultra-hazardous materials as part of the nation's defense, and as 
were every bit in harm's way. Claimants confront an insurmountable 
burden of proof in a claim for compensation because the contractor 
decided not to monitor us for uptakes of extremely radioactive 
transuranic compounds for over 40 years.
    DOE has not indicated how it will develop claims for radiation 
induced cancers for Special Exposure cohort sites, because NIOSH is not 
going to be performing radiation dose reconstruction on the workers who 
are in the Special Exposure Cohorts. H.R. 1758 proposes that the 
presumptions for membership in the Special Exposure Cohort also be 
applied to Subtitle D claims. A DOE policy is needed for those who are 
in Special Exposure Cohorts and filed cancer claims under Subtitle D.
               claims processing: doe vs. dol at paducah
    At Paducah, only 1 out of 2,215 claims that were filed at Paducah 
under Subtitle D have moved through the DOE physicians panel as of 11/
1//03. Not a single claim has been paid through DOE's Subtitle D 
program at Paducah.
    By contrast, the Department of Labor has issued 2,469 recommended 
decisions out of 3,393 cases filed by Paducah claimants, with 918 
recommended approvals and 1,551 recommended denials. DOL has paid 
$125.2 million paid to Paducah claimants as of October 29, 2003. Most 
of these payments are to members of the Special Exposure Cohort. DOE's 
performance is simply inexcusable.
                            the harding case
    On August 9, 2001--a week after the program formally started 
operations--DOL issued its first payment of $150,000 to Clara Harding, 
the widow of Joe Harding.
    This first payment was very significant. Mr. Harding died at age 58 
in March 1980 of abdominal cancer. He worked at the Paducah plant for 
nearly 20 years, from 1952 until 1971, and was found with dramatically 
elevated levels of uranium in his bones after he died. Mrs. Harding 
battled DOE for 15 years to gain a survivor benefit under Kentucky's 
state worker compensation law, and failed on a legal technicality--
statutes of limitations--after the DOE and its contractor spent in 
excess of $1 million to defeat a claim that would have settled for 
$50,000. The DOE's efforts to defeat Mr. Harding's case were detailed 
in a front page Washington Post story in 1999. It is cases like Mrs. 
Harding's that underscore the need to get DOE out of the business of 
fighting sick workers.
                    issuing regulations: doe vs. dol
    Although DOE staff had developed regulations by June 2001, DOE's 
management failed to make this rulemaking a priority and did not 
finalize Physician Panel regulations for 18 months until September 
2002.
    By contrast, DOL issued its Interim Regulations on May 15, 2001 and 
they were used for deciding claims when EEOICPA formally began 
operations on July 31, 2001.
        there is no willing payor for many claimants at paducah
    Besides the glacial pace of claims processing, many of the valid 
claims at Paducah will not have a ``willing payor.'' A willing payor is 
an entity which DOE can meaningfully direct to pay claims after a 
Physicians Panel renders a positive determination.
    GAO indicates in its preliminary briefings to Congress that at 
least 50% of the Paducah claimants will not have a ``willing payor.'' 
We suspect that GAO's final conclusions will indicate that this 
percentage is higher. There are several reasons for the absence of a 
willing payor at Paducah.

   DOE cannot direct USEC, Inc., which was privatized and 
        leases the Paducah Gaseous Diffusion Plant, to serve as a 
        ``willing payor.''
   DOE cannot direct Aetna or other insurance companies to pay 
        claims on insurance policies they issued decades ago for 
        Paducah contractors like Union Carbide. DOE has not clarified 
        if Bechtel Jacobs, which is self-insured, will assume 
        responsibility at Paducah for all claims that were ``owned'' by 
        Aetna or others.
   Many of Paducah's subcontractors used private worker 
        compensation insurance carriers to provide worker compensation 
        insurance. Private insurers are not bound by DOE physician 
        panel determinations.

    Let me give you an example. My co-worker, Rod Cook, age 54, is a 
plant Superintendent at USEC who contracted pleural fibrosis from his 
years of breathing asbestos in the course of his job as a plant 
operator. Last year he started coughing up blood. Surgeons had to 
remove a portion of his lung and several feet of lung tissue removed 
that had built up around his lung.
    In May 2002, Rod filed a claim with DOE under Subtitle D of the 
Act. He didn't get a claim number for 18 months--until a couple of 
weeks ago. He was finally asked for his medical records for the first 
time a few weeks ago. What took so long?
    Rod is back to work, luckily, and has only lost 20% of his lung 
function at this time, but should he become disabled, he has no way to 
replace his lost income.
    In the meantime, Rod is seeking to have his out of pocket medical 
costs paid related to his lung surgery under Subtitle D. USEC is not a 
willing payor. Aetna insured Union Carbide when they ran the plant. 
Aetna is not a willing payor. Who will own responsibility for paying 
Rod's claim? If Rod becomes disabled, as many are, will they have to 
wait for years while DOE looks for a willing payor? Or should Congress 
step in and assure a willing payor for valid claims?
    The September 13, 2002 Memorandum of Agreement between the 
Commonwealth of Kentucky and DOE makes it plain that DOE cannot bind 
the state or private insurance companies to honor the findings of a DOE 
physicians panel. The MOA states in Section 2:

          ``A positive determination pursuant to [DOE's Physician 
        Panel] has no effect on the scope of State workers' 
        compensation proceedings, the conditions for compensation, or 
        the rights and obligations of participants in the proceedings; 
        provided that consistent with subtitle D such a determination 
        will prevent DOE and may prevent a DOE contractor from 
        contesting an applicants worker compensation claim.'' \5\
---------------------------------------------------------------------------
    \5\ Memorandum of Agreement between the U.S. Department of Energy 
and the Commonwealth of Kentucky, September 13, 2003.

    Even a non-lawyer like myself can see that this Memorandum of 
Agreement allows the Commonwealth of Kentucky, if it so chooses, to 
disregard a Physicians Panel determination when evaluating a state 
worker compensation claim. Moreover, Kentucky will not agree to bind an 
insurer or employer to a DOE Physicians Panel finding.
when eeoicpa was passed, congress knew subsequent enabling legislation 
                               was needed
    When EEOICPA was finalized in the House-Senate Conference Committee 
of the FY 01 Defense Authorization Act in October 2000, many important 
implementation issues were left unresolved. Thus:
    1) EEOICPA required GAO to assess of the effectiveness of the 
Subtitle D program and report to Congress by February 1, 2002. However, 
DOE's slow progress in developing its Subtitle D program added another 
year to the wait before GAO could provide recommendations; and
    2) EEOICPA required that not later than March 15, 2001, the 
President shall submit to Congress a proposal for legislation to 
implement the compensation program, including costs, number or workers 
covered and specific recommendations (including draft legislation) of 
the President for the following:

          ``(1) The types of compensation and benefits, including lost 
        wages, medical benefits, and any lump-sum settlement payments, 
        to be provided under the compensation program.
          (2) Any adjustments or modifications necessary to 
        appropriately administer the compensation program under part B 
        of this subchapter
          (3) Whether to expand the compensation program to include 
        other illnesses associated with exposure to toxic substances.
          (4) Whether to expand the class of individuals who are 
        members of the Special Exposure Cohort (as defined in section 
        7384l(14)) of this title.'' (42 U.S.C. 7384f)

    This administration did not forward a legislative proposal, and the 
one provided to Congress by the Clinton Administration in 2001 in the 
hours prior to the inauguration of President Bush was never considered. 
If the Administration has no solutions to offer, we would be grateful 
if Congress stepped in and designed a fix.
congress should reform eeoicpa by directing dol to process claims, run 
           the physicians panels and serve as a willing payor
    The architecture of Subtitle D is based on the premise that DOE 
could assist claimants with securing state worker compensation claims. 
This is plainly unworkable. Moreover, DOE lacks the capacity to 
effectively carry out the basic claims development and management of 
physicians panels. The Grassley-Murkowski amendment was a constructive 
first step. A November 9, 2002 Paducah Sun editorial entitled Failure 
Rewarded noted that ``common sense'' got ``trashed'' with the defeat of 
the Grassley amendment (Attachment ``B'').
    A willing payor must be established soon. The Energy Workers 
Compensation Act (S. 3058) introduced last year by Senators Bingaman 
and Bunning established DOL as the ``willing payor'' for all valid 
claims. It relies upon the Federal Employee Compensation Act (FECA) as 
a framework for setting benefit levels. It is plain that DOE cannot 
assure that every valid claim will have a ``willing payor.'' To give 
workers a Physicians Panel determination and then tell them ``Sorry 
there is no one to pay the claim'' perpetrates a cruel and unfortunate 
hoax. So far the only winner is under Subtitle D is SEA, DOE's support 
service contractor, who makes money no matter how badly workers fare in 
this system.
    A credible solution to fixing this program is to move all three key 
responsibilities to the DOL (1) claims processing, (2) physicians 
panels, and (3) payment responsibilities. Records retrieval will remain 
with DOE.
                                summary
    DOE's poor performance and broken commitments make it clear that it 
is time to change agencies. DOE has failed in its claims processing 
responsibilities, and has yet to solve the problem of ``willing 
payors.'' Three years is plenty long enough for DOE to get the program 
operational.
    Claimants are ill and dying and really don't have time for DOE to 
learn on the job. A cynical person might observe that the costs of this 
program decline as people die off. DOE's consultants have warned that 
EEOICPA Subtitle D may generate unanticipated costs for DOE's 
Environmental Management Program.\6\ Thus, the perverse logic of delay 
may not be far off the mark.
---------------------------------------------------------------------------
    \6\ Workers' Compensation Costs in the DOE/EM Program, PWC 
Consulting, March 18, 2002. The report stated at Section 2.3: ``Four of 
six sites we interviewed expressed significant concerns about the 
Potential for an increase in new state WC claims from former workers. 
Two drivers were generally cited: EEOICPA, and DOE-sponsored health 
screening programs for former workers.
---------------------------------------------------------------------------
    What is equally troubling is that the Office of Management and 
Budget refuses to provide any adult supervision. Rather they are 
embracing failure by increasing funding while the federal officials and 
their contractors--no matter how well intentioned--are still learning 
on the job. There are professionals who can do a better job at the DOL 
and it is time to turn it over to them. Congress should not invest any 
longer in a failing program.
    Thank you for your consideration.

    Senator Bunning. Thank you, Mr. Owens, for your testimony.
    Dr. David Michaels.

     STATEMENT OF DAVID MICHAELS, Ph.D., PROFESSOR, GEORGE 
                     WASHINGTON UNIVERSITY

    Dr. Michaels. Thank you, Mr. Chairman.
    I served as Assistant Secretary of Energy for Environment, 
Safety and Health from 1998 to January 2001. I am honored the 
committee invited me to provide testimony today. The first time 
I testified in Congress was my Senate confirmation hearing in 
this very room just over 5 years ago.
    I will summarize my written testimony. Before the late 
1990s----
    Senator Bunning. We will accept the whole thing for the 
record.
    Dr. Michaels. Thank you, sir.
    The Department of Energy had a longstanding policy to fight 
all claims made by nuclear weapons workers that chemicals and 
radiation may have caused them to be sick. This ended with the 
historic initiative culminating in Congress passing this 
legislation on a bipartisan, virtually unanimous basis. Most of 
us believed that the new structure authorized in subtitle D 
would overcome that old policy, known in the Forrestal Building 
as ``deny and defend,'' and would ensure that the goal shared 
by Congress and the administration of providing timely, 
adequate, and uniform levels of compensation could be reached.
    Senator, I am here to tell you that we were wrong. The 
structure I recommended has failed. It is with real sadness and 
disappointment that I have returned to this chamber to report 
that DOE has demonstrated it is either unwilling or incapable 
of implementing this program. As a result, it is now time for 
the Congress to reevaluate the role and responsibility of the 
Energy Department in helping sick workers.
    My written statement reviews the genesis of the program. 
One anecdote I should just repeat here. Pete Lopez, who 
testified in front of Congress when this was being considered, 
was diagnosed with beryllium sensitivity. DOE's contractor 
physician made the diagnosis, helped him fill out the Texas 
State Workers Compensation form, sent it in to DOE's third 
party administrator because DOE was self-insured, and DOE's 
third party administrator did what it always did for DOE: It 
denied Mr. Lopez's claim.
    I attached the form to my testimony that Mr. Lopez received 
in the mail. It is a standard form saying: ``Carrier denies 
this claim because it is an ordinary disease of life to which 
the general public is exposed.'' It was that sort of attitude 
we were trying to overcome. This is beryllium disease. Mr. 
Lopez did not get beryllium disease on the golf course. He got 
it assembling nuclear weapons at Pantex.
    This did not occur in the bad old days. Mr. Lopez filed his 
claim in the year 2000. He received his denial in 2000.
    But the purpose of subtitle D was not merely to determine 
work-relatedness. It was for DOE to step up to the plate and 
start acting like a responsible employer. If a panel of 
independent physicians determined the case was work-related, 
DOE would actively assist that worker in getting State worker 
compensation benefits. That is why we called the office ``the 
Office of Worker Advocacy.''
    One of the things I did as Assistant Secretary is I got on 
the phone and called contractors up when cases were work-
related and said: This case should be taken care of, and they 
were. I probably got more people--I did get more people 
compensated just by getting on the phone than DOE has done in 
this entire program.
    DOE made a series of decisions that resulted in a program 
that will compensate as few people as possible, as slowly as 
possible, and I outline them in my testimony. I think they 
hired a contractor with no background in workers compensation. 
More tragically, they ignored the expert advice of the advisory 
committee, several members of whom--Don Elisburg and John 
Burton--are sitting on this panel, and then eventually had to 
bring in an outside consultant to tell them some of the same 
things the advisory committee could have told them 2 years 
earlier.
    I do not agree with DOE's interpretation that nothing can 
be done, that they have no authorization to go beyond 
essentially putting the worker through a physicians panel and 
helping them fill out a form. I think there are a number of 
solutions they could take on. But putting that aside, I think 
everyone in this room understands that when DOE--DOE leadership 
is not shy about suggesting new authorization language for 
initiatives it supports. Yet in the many months since this 
program has begun, DOE has never suggested a legislative 
solution or any other solution to this problem.
    What advice would I give you now? There is no question in 
my mind this program could be managed far more effectively and 
efficiently by the Department of Labor. Secondly, there are 
many workers in this country for whom no benefit payor has been 
identified. This is a situation reminiscent of the Radiation 
Exposure Compensation Act of a few years ago. Congress 
recognized the government cannot tell a sick worker or worker's 
survivor that, yes, your disease was caused by helping the 
Nation win the Cold War, you are deserving of benefits, but we 
just cannot pay you. We need to resolve that.
    Finally, another resource the Department of Energy has is 
its former worker medical surveillance program. Rather than 
using this resource to help adjudicate claims, which DOE has 
orders to allow it to do, DOE has announced it is phasing out 
the program. I would like to see Congress intervene in that as 
well.
    Senator Bunning, it is only 3 short years since the members 
of this body enacted EEOICPA on a bipartisan, unanimous basis. 
Together, 3 years ago we mounted this noble effort to make 
peace with the past, to repay those who made great sacrifices 
for their country. I ask you not to let this historic 
initiative fail.
    [The prepared statement of Dr. Michaels follows:]
        Prepared Statement of David Michaels, Ph.D., Professor, 
                      George Washington University
    Thank you Mr. Chairman.
    My name is David Michaels. I served as Assistant Secretary of 
Energy for Environment, Safety and Health from 1998 to January 2001. In 
that role, I had chief responsibility for protecting the health of 
workers, communities and the environment around the nation's nuclear 
facilities. I am honored that the Committee invited me to provide 
testimony here today. The first time I testified in Congress was my 
Senate confirmation hearing, in this very room, just over five years 
ago.
    I was no doubt invited to testify today because I am considered to 
be the architect of the EEOICPA. Under Secretary Bill Richardson's 
direction, I conceived of the original proposal, sheparded it through 
the inter-agency process, and worked closely with Congress, including 
several members of this Committee, through its passage and enactment 
into law. I helped write the Executive Order, which assigned 
responsibilities for the program to the Departments of Labor, Health 
and Human Services, Energy and Justice. I continue to be associated 
with the program--I am currently a consultant to the Department of 
Labor. Needless to say, the views expressed in my testimony today are 
purely my own.
    Before the late 1990s, the Department of Energy had a long-standing 
policy to fight all claims made by nuclear weapons complex workers that 
chemicals and radiation may have caused them to become sick. This ended 
with the historic initiative that culminated with passage of EEOICPA. 
The Secretary of Energy, Bill Richardson, apologized to workers who had 
been lied to. On a bipartisan, virtually unanimous basis, Congress 
passed EEOICPA, providing a new workers compensation program in the 
nuclear weapons industry. Most of us thought that this was a permanent 
change, and that the Energy Department was poised to help workers. Most 
of us believed that the new structure described in Subtitle D would 
overcome that old policy--known in the Forrestal Building as ``Deny and 
Defend''--and would ensure that the goal shared by Congress and the 
Administration--providing timely, adequate and uniform levels of 
compensation--could be reached.
    Senators, I am here to tell you that we were wrong. The structure I 
recommended has failed.
    As many of you will recall, when you and your colleagues were 
considering how to compensate these civilian cold war veterans, Senator 
Voinovich introduced bipartisan legislation (S. 2519) that would have 
placed the entire EEOIPCA program at the Department of Labor.
    I personally assured Senator Voinovich, Senator Bingaman and other 
members of Congress that the Department of Energy was the appropriate 
place to house the program that would assist these workers to obtain 
state workers compensation benefits
    In retrospect, it is now clear to me that this is not the case. It 
is with real sadness and disappointment that I have returned to this 
chamber to report that the Department of Energy has demonstrated that 
it is either unwilling or incapable of implementing the program 
authorized in the EEOICPA.
    Rather than serve as advocates for sick workers, DOE's leadership 
appears to have designed an implementation strategy that will not 
fulfill the clearly stated objectives of the EEOICPA legislation--not 
merely to operate physician panels but to assist and advocate for sick 
workers to ensure that they actually get compensation in state 
programs. Sadly the DOE strategy is working--it is more than three 
years since the Congress enacted EEOICPA, and DOE has not yet paid 
compensation benefits to a single sick worker under subtitle D of the 
Act.
    As a result, it is now time for the Congress to re-evaluate the 
role and responsibility of DOE in helping sick workers.
    I'd like to spend a few moments reviewing the genesis of the 
program.
    In my confirmation hearing in front of this Committee in 1998, the 
Chairman, Senator Frank Murkowski, asked me to examine the claims of 
widows of DOE contractor employees who had been exposed to radiation 
working around a series of underground nuclear detonations in Amchitka, 
Alaska. I subsequently heard from sick workers and their survivors, and 
from members of Congress representing these individuals, from 
Washington State to South Carolina, from Los Alamos to Oak Ridge.
    I talked to these workers, and their survivors, in public meetings 
around the country. Members of Congress attended these meetings, and 
heard, with me the stories of these cold war veterans, civilians who 
put themselves in harm's way so that our nation could triumph, first in 
World War Two, and then in the Cold War.
    At these public meetings, and through my staff's investigations 
into working conditions in the nation's nuclear weapons plants, we 
documented the disturbing history of the U.S. government's denial of 
the obvious--the Atomic Energy Commission (AEC), and then the DOE, hand 
in hand with its contractors, had a policy of denying that working with 
some of the most hazardous materials ever invented had made workers 
sick. When workers claimed to be sick, boundless resources were 
expended to fight them.
    Two documents from the earliest years of the AEC, uncovered in the 
investigation into human radiation experiments,\1\ are illustrative of 
this policy. The first is a 1947 memo from Oak Ridge Operations to AEC 
headquarters. It highlights the AEC's desire to limit liability and 
fear associated with hazardous exposures:
---------------------------------------------------------------------------
    \1\ Advisory Committee on Human Radiation Experiments. Final 
Report. Oxford University Press, 1996.

          Papers referring to levels of soil and water contamination 
        surrounding Atomic Energy Commission installations, idle 
        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 in insurance 
        claims, increased difficulty in labor relations and adverse 
        public sentiment.\2\
---------------------------------------------------------------------------
    \2\ Franklin, JC. Manager, Oak Ridge Operations, to Carroll L. 
Wilson, AEC General Manager, 26 September 1947 (``Medical Policy'') 
(ACHRE No. DOE-113094-B-3).

    A similar sentiment is seen in a 1948 memo about a Los Alamos study 
that found health effects from gamma radiation exposure at levels 
previously thought to be safe. The memo, from the AEC's Insurance 
Branch to the Declassification Branch, called for ``very careful 
---------------------------------------------------------------------------
study'' before releasing the report:

          We can see the possibility of a shattering effect on the 
        morale of the employees if they become aware that there was 
        substantial reason to question the standards of safety under 
        which they are working. In the hands of labor unions the result 
        of this study would add substance to demands for extra-
        hazardous 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.\3\
---------------------------------------------------------------------------
    \3\ Wilson, CE. Chief, Insurance Branch, to Anthony C. Vallado, 
Deputy Declassification Officer, Declassification Branch, 20 December 
1948 (``Review of Document by Knowlton'') (ACHRE No. DOE120894-E-32).

    This attitude appeared to continue throughout the Cold War period. 
In 1999, a suit was filed alleging that the contractor at the Paducah 
Gaseous Diffusion Plant had concealed evidence of environmental 
contamination by plutonium and other transuranic substances. In 
response, I sent a team to investigate. Their work wasn't easy--the 
oversight team I sent down, a group of very talented and dedicated 
civil servants, had to search through documents that had been stored in 
barrels that were contaminated with radioactive waste.
    The team documented a legacy of poor safety and health practices 
that went on for decades. Paducah workers were never warned that the 
uranium that was contaminated with plutonium and neptunium.
    Among the documents that we uncovered was one written by two senior 
AEC physicians who were evaluating the neptunium 237 contamination 
problem in the Paducah plant in 1960. Permit me to read some passages 
from that memo:

          The workers are supposed to wear special face masks but they 
        are not controlled too closely . . .
          Np237 [neptunium] can now be detected in urine but not 
        consistently . . .
          Np237 seems to be found only in reclaimed feed materials 
        provided by Hanford . . .
          There are possibly 300 people at Paducah who should be 
        checked out but they hesitate to proceed to intensive study 
        because the union's use of this as an excuse for hazard pay.\4\
---------------------------------------------------------------------------
    \4\ Dunham, CL, Director, AEC Division of Biology and Medicine and 
Brunner, HD, Chief of Medical Research, AEC Division of Biology and 
Medicine. Neptunium-237 Contamination Problem, Paducah, Kentucky, 
February 4, 1960.

    But, you're probably saying, that was along time ago, in the bad 
old days. Senators, I wish that were true. I want to tell you a story I 
heard from Pete Lopez, who was exposed to beryllium assembling and 
disassembling nuclear weapons at the Pantex facility, in Amarillo 
Texas. (I am using Mr. Lopez's name here because it is public he 
testified at the hearing of the House Judiciary Committee in 2001, and 
told his story there, as well.\5\)
---------------------------------------------------------------------------
    \5\ Lopez, P. Testimony Before the Subcommittee on Immigration and 
Claims of the Committee on Judiciary, U.S. House of Representatives, 
September 21, 2000 Concerning Obstacles to Workers Compensation for 
Beryllium Disease at the Pantex Facility. Available at: http://
www.house.gov/judiciary/lope0921.htm
---------------------------------------------------------------------------
    Beryllium causes a progressive, sometimes fatal lung disease. There 
are hundreds of cases of beryllium disease or among workers exposed in 
the weapons complex, because beryllium is an important component in 
nuclear weapons.
    Mr. Lopez was diagnosed as having beryllium sensitivity, an early 
stage of beryllium disease, by a DOE contractor's physician. The doctor 
encouraged Mr. Lopez to apply for Texas state workers compensation, and 
helped him fill out the form. It was sent to DOE's third party 
administrator because the Pantex facility is self-insured for workers 
compensation. Predictably, DOE's third party administrator did what it 
had always done for DOE, it denied Mr. Lopez's claim. A copy of the 
claims denial is appended to my testimony; * I'd like to read you what 
Mr. Lopez was told:
---------------------------------------------------------------------------
    * Retained in committee files.

          Carrier is filing a formal denial that the employee has 
        sustained an injury or occupational disease within the course 
        and scope of employment or has sustained a work related injury 
        or disease. Carrier further denies the occupational disease in 
        that it is an ordinary disease of life, to which the general 
---------------------------------------------------------------------------
        public is exposed.

    Please remember: this did not occur decades ago, in the bad old 
days. Mr. Lopez filed his workers' compensation claim in 2000. Mr. 
Lopez isn't alone. There are thousands of other workers who have 
illnesses that may be associated with exposure in the nuclear weapons 
plants.
    In listening to these workers' stories and reading these documents, 
it became clear to me that DOE did not have the credibility to 
determine whose diseases were work-related and whose weren't, so we 
crafted a legislative proposal that would allow an independent 
adjudication of claims.
    But it was more than that. The purpose of Subtitle D was not merely 
to determine work-relatedness. It was for DOE to step up to the plate 
and start acting like a responsible employer. If the panel of 
independent physicians determined a case was work related, DOE would 
actively assist that worker in getting state compensation benefits.
    This would involve instructing the contractor to accept the claim 
(and there is clear language that DOE would tell contractors they could 
not reject the claim). In many cases, the costs of that claim would be 
sent directly back to the appropriate DOE office.
    It was understood that DOE, or its contractors, could legally 
accept compensation claims even if the statute of limitations had 
passed. And that DOE would actively work to get sick workers, the ones 
found by physician panels to have occupational illnesses into the 
system.
    To jump start the program, Secretary of Energy Richardson issued 
Order 350.6, which enabled DOE and its contractors to begin 
compensating workers with obvious occupational illnesses without having 
to wait for the physician panels. Under 350.6, DOE contractors were 
required to accept as work-related the diagnoses of occupational 
illness made by the physicians they employed, or those employed by 
DOE's former worker medical surveillance program, and not to contest 
these claims.\6\
---------------------------------------------------------------------------
    \6\ DOE Order 350.6. Acceptance of Valid Workers' Compensation 
Claims. January 12, 2001. Available at: http://www.directives.doe.gov/
pdfs/doe/doetext/neword/350/n3506.pdf
---------------------------------------------------------------------------
    If DOE had truly wanted to make this program work, it could have 
immediately implemented Order 350.6. Instead, workers who DOE has 
already acknowledged to have work related illnesses will have to wait 
years, in some cases, many years, to have their records reviewed by 
additional physicians. In the end, they will likely make the same 
diagnoses, but at the additional cost of several thousand dollars.
    I have heard DOE leadership claim that they were overwhelmed by the 
volume of cases, and that it is far more cases than we (and 
specifically I) predicted. Those in this room who were involved in the 
enactment of EEOICPA will remember that the Administration's 
legislative proposal, and the version passed by the senate, was quite 
different than the final legislation. In our proposal, Subtitle B 
included wage loss benefits and was the exclusive remedy for workers 
with beryllium disease and radiation related cancer. This was changed 
significantly, and in my view unfortunately, in negotiations between 
the Senate and the House. As a result, thousands of workers who in the 
original proposal could only have applied to the DOL program, now apply 
to both.
    Congress recognized in the initial legislation that this was a work 
in progress; the legislation specifically called for further 
legislative improvements. The drafters recognized that problems like 
the ones being discussed today might arise, and prompt oversight by the 
GAO. Unfortunately, the GAO could not provide that oversight because 
the DOE program had not progressed enough to warrant GAO's effort.
    I am disappointed to report to this committee that DOE leadership 
made a series of decisions to set up a program that will compensate as 
few people as possible, as slowly as possible.
    In the more than three years since the legislation was enacted, DOE 
has failed to hire a manager for this program who has any experience or 
expertise in managing workers compensation programs. Then, DOE 
compounded the problem by hiring a contractor with no background in 
workers compensation systems. With this contractor's help, DOE designed 
a system from which it is difficult to get even the most basic 
statistical information, such as what illnesses are described by 
claimants or where claimants worked.
    DOE ignored the expert advice of an Advisory Committee composed of 
some of the nation's leading thinkers on workers compensation, and 
designed procedures without consulting with the Advisory Committee. 
After the minimum period, DOE disbanded the Advisory Committee. I am 
told that DOE has finally hired a consulting firm to provide, at 
significant cost and delay, much of the same information the Advisory 
Committee was trying to provide two years ago.
    Another valuable resource DOE could have utilized is the network of 
clinics and physicians of DOE's own former worker medical surveillance 
program. Order 350.6 was written expressly to enable DOE to call on 
these physicians, many of whom have international reputations, to 
assist in adjudicating these claims. Instead, Assistant Secretary Cook 
has announced that most of these programs will be ended shortly. While 
Assistant Secretary Cook claims the phase-out will allow her office to 
fund new medical surveillance programs in locations not previously 
served, the recently released ``Strategic Plan for the Office of 
Environment, Safety and Health, 2003-2006'' \7\ fails even to mention 
the program, suggesting its permanent demise is planned.
---------------------------------------------------------------------------
    \7\ Strategic Plan for the Office of Environment, Safety and 
Health, 2003-2006. Available at: http://tis.eh.doe.gov/portal/feature/
EH Strategic Plan FINAL.pdf
---------------------------------------------------------------------------
    And, most tragically, while spending millions to administer this 
program and process paper, DOE has apparently decided that their job 
ends with the physician panel it will do nothing to get workers into 
state compensation systems.
    Again, I call your attention to the Strategic Plan. There is no 
mention of assisting sick workers get the compensation they deserve. 
The primary objective listed for EEOICPA is to ``process applications 
for Subpart D.'' The strategic indicators focus on improving efficiency 
and reducing backlog, but not on helping workers.
    When the Administration proposed this program, and when Congress 
enacted it, it was envisioned that DOE would advocate for its workers 
DOE would actively try to help the people made sick making nuclear 
weapons. Instead, DOE leadership has interpreted the EEOICPA 
legislation as narrowly as possible, to ensure that the assistance 
given sick workers will be kept to a minimum. DOE leadership says no 
mechanism can be found to compensate sick workers in Iowa, or Ohio, or 
Alaska, or in other situations where there is no willing payor.
    I have heard DOE's claim that the EEOICPA authorization is limited, 
and little can be done beyond submitting a claim to a physician panel 
and helping a sick worker fill out a claim form. I do not agree with 
this interpretation, but, putting that aside, I think everyone in this 
room knows that DOE leadership is not shy about suggesting new 
authorization language for initiatives it supports. Yet in the many 
months since this program began, DOE has never suggested a legislative 
solution (or any other solution) to this problem.
    What advice would I give you now?
    It is clear that DOE leadership cannot, or will not, operate this 
program effectively. Trust in the agency has been lost and cannot 
easily be regained. There is no question in my mind that this program 
could be managed far more effectively and efficiently by the Department 
of Labor, which already operates Subtitle B of EEOICPA, as well as the 
FECA program, the largest workers compensation program in the country, 
a program that covers most of the people in this room.
    Secondly, there are many workers around the country for whom no 
benefits payor has been identified. The situation in which sick workers 
are given positive determinations of work-relatedness by DOE physician 
panels, and then have no one to turn for workers compensation benefits 
is reminiscent of the crisis facing the Radiation Exposure Compensation 
Act a few years ago. In that situation, Congress recognized that the 
government cannot tell a sick worker, or that worker's survivor, that 
yes, your disease was caused by helping the nation win the Cold War, 
and you are deserving of benefits, but we just can't pay you.
    To address this, legislation is needed to provide mandatory funding 
for compensation benefits for claimants who are found to have work-
related conditions under this program.
    Finally, Congress should not permit DOE to abandon its commitment 
to providing medical surveillance for former workers throughout the 
complex.
    Senators, it is only three short years since the members of this 
body enacted EEOICPA on a virtually unanimous bipartisan basis. 
Together, three years ago, we mounted this noble effort to make peace 
with the past, to repay those who made great sacrifices for their 
country. I ask you not to let this historic initiative fail.

    Senator Bunning. Thank you for your testimony, doctor.
    Mr. Richard Miller, please.

STATEMENT OF RICHARD MILLER, SENIOR POLICY ANALYST, GOVERNMENT 
                     ACCOUNTABILITY PROJECT

    Mr. Miller. Thank you, Mr. Chairman. My name is Richard 
Miller. I serve as a Senior Policy Analyst at the Government 
Accountability Project. GAP tracks the implementation of this 
law and serves as an information hub for claimants, unions, 
injured worker groups, and the media.
    Again, as Dr. Michaels said, I want to commend both you for 
your efforts in the course of trying to get this legislation 
passed. We all know how difficult that conference was, and 
there were a number of questions that were left unresolved. We 
also particularly appreciate your effort to provide both 
oversight, promote reforms, and to bring this hearing to 
fruition.
    I have two basic points I would like to leave you with 
today, in many respects restating what you have heard earlier. 
First, in the 3 years since enactment DOE has failed to 
competently implement subtitle D in the primary areas of its 
responsibility--claims development, physicians panel 
operations, and assuring that there is a willing payor.
    Secondly, that legislative reforms in our view should 
direct the Labor Department, which runs four separate worker 
compensation programs, including the Federal Employee 
Compensation Act, the Longshore and Harbor Workers Act, the 
Black Lung Benefits Program, and of course subtitle D of this 
program, to process claims and also serve as the willing payor, 
while DOE recovers the needed records and receives the 
resources to do so.
    When Congress defined the law's purpose, it said it wanted 
to provide for timely, uniform, and adequate compensation of 
covered employees. That is right up front at the beginning of 
the law. So I guess we differ with the interpretation that Mr. 
Card has. What we do not disagree on, I hope, is that that goal 
is not being met today.
    DOE's main product under subtitle D is a physicians panel 
determination, and what we know about subtitle D is that 
subtitle D did not provide a means to assure, guarantee, the 
payment of claims. Thus even if claims payment were proceeding 
apace as we would hope, the physicians panel determinations 
carry no legal weight with the States, and in our view we have 
to establish a willing payor for everyone, not just those with 
self-insured prime contractors.
    We also believe that the GAO's initial assessment, which 
was approximately 15 percent do not have a willing payor, may 
understate the case because DOE's database it now turns out is 
unauditable with respect to who was the last employer, and thus 
GAO has had great difficulty in finding out how big the problem 
is.
    In evaluating DOE's actions over the past 3 years, as 
opposed to its words and intentions, we have concluded that DOE 
seems disinclined or incapable of remedying the basic flaws in 
this program. One of the operative questions for me is why is 
DOE fighting so hard to keep this program from being 
transferred to the Labor Department?
    Now, the Grassley-Murkowski amendment was an interim step. 
It only dealt with claims processing and management of 
physicians panels. It did not deal with the willing payor. And 
it was an incremental step that was proposed. But why did DOE 
fight that? When Mr. Card testified earlier, he said because it 
would lead to undue delays. Yet the Grassley amendment 
eliminated the need, for example, to be delayed while new 
rulemaking was done because they would use the Energy 
Department's old rules in the interim. They would also provide 
for the Energy Department to have resources to recover records.
    So in our sense, why is it that DOE is so attached to a 
failing program? Why do they not want to let it go? It has 
nothing to do with, in our view, accountability, because today 
under subtitle B claims are taken out of DOE and they are 
shifted over to the Department of Labor, just as they would be 
if subtitle D were transferred and moved from one agency to the 
other. DOE would do what it has its core capacity to do, which 
is direct its contractor to produce records.
    We are troubled that DOE has not begun development on 71 
percent of its claims. By contrast, the Labor Department began 
paying claims a mere 75 days after its regulations were issued. 
And DOE's own consultants that were brought in to advise its 
contractor, DOE's contractor, said that the program suffers 
from ``design flaws.''
    We are also troubled that DOE has stonewalled State worker 
compensation programs who have actually offered to solve the 
willing payor problem. For example, the State of Ohio Bureau of 
Worker Compensation Programs proposed last December to become a 
willing payor and after DOE rejected this offer, handed to them 
on a silver plate, here is what the Ohio BWC Director said: 
``What troubles me more than the length of time it has taken 
DOE to respond is the lack of alternatives your staff has 
proposed to help get this program off the ground.'' That letter 
is attached to our testimony.
    When DOE presented its fiscal year 2003 budget request to 
Congress, it promised to move claims quickly by developing 
exposure profiles. But to date DOE has completed none of these 
exposure profiles.
    Moreover, of the 56 claims approved by the physicians 
panels to date nationwide, we are not aware of any of those 56 
being paid and, moreover, DOE has no system to even track the 
payment status of those claims. As you noted in a question 
earlier, it appears the only one getting money out of this 
program is DOE's support service contractor and, with a large 
budget increase to DOE, it will be tens of millions more.
    I see my time is running out. In conclusion, some have 
suggested that DOE retain non-risk-bearing third party 
administrators to serve as a payor. We think DOL should be both 
the claims administrator and the willing payor, using the 
Federal Employee Compensation Act as guidance for benefit 
levels. We recommend that either NIOSH or the DOE former worker 
medical screening program do the exposure assessments that have 
not been done.
    In conclusion, it makes no more sense for Congress to 
assign a major worker compensation program to DOE than it does 
to assign a nuclear weapons production program to the 
Department of Labor.
    [The prepared statement of Mr. Miller follows:]
     Prepared Statement of Richard Miller, Senior Policy Analyst, 
                   Government Accountability Project
    Mr. Chairman and Members of the Committee, I am Richard Miller, a 
senior policy analyst at the Government Accountability Project 
(``GAP'').\1\
---------------------------------------------------------------------------
    \1\ Miller testified on EEOICPA before the Senate HELP Committee, 
Subcommittee on Employment, Safety, & Training, May 15, 2000, and the 
House Judiciary Committee, Subcommittee on Immigration & Claims (http:/
/www house.gov/judiciary/mill0921.htm) on September 21, 2000. GAP 
assists claimants and monitors the activities of the three federal 
agencies implementing EEOICPA, in addition to its core work on behalf 
of whistleblowers.
---------------------------------------------------------------------------
    Subtitle D of EEOICPA was intended to take the Department of Energy 
(``DOE'') out of the business of fighting valid state workers' 
compensation claims brought by sick nuclear workers who were employed 
by DOE contractors. Congress intervened to reverse DOE's history of 
fighting claims. Congress defined EEOICPA's purpose: ``to provide for 
timely, uniform, and adequate compensation of covered employees . . 
.''. That goal is not being met today.
    What Subtitle D provides is a Physicians Panel determination, 
which, if positive, would lead to DOE directing its contractors not to 
contest claims with state worker compensation systems. What Subtitle D 
didn't provide is a means to assure payment of claims. States are not 
bound by DOE Physicians Panel findings. Even if claims development were 
proceeding at a reasonable pace, the basic design of Subtitle D suffers 
from a basic flaw: Physicians Panel determinations carry no legal 
weight with states. To make Subtitle D work, a ``willing payor'' must 
be established for all valid claims.
    The DOE's program has deficiencies in three areas: (1) claims 
development; (2) physician panel operations; and (3) claims payment 
through a ``willing payor''. Despite advice from its Advisory Board and 
Congress, DOE seems disinclined or incapable of remedying the basic 
flaws in this program. We suggest that Congress shift Subtitle D to the 
Department of Labor (``DOL''). No matter how well intended the 
Secretary and DOE staff may be, DOE is still learning on the job and 
claimants are dying without resolution of their claims.
    i. doe's claims performance is abysmal; prospects for dramatic 
improvement are limited; and all ``willing payor'' proposals have been 
                                rejected
   Despite a commitment by the Secretary to the Senate Energy 
        Committee in February 2003 to move 100 claims per week through 
        its Physicians Panels by August 2003, DOE processed a total of 
        only 109 out of 19,690 eligible applications (0.5%) through the 
        Physicians Panels by November 11, 2003. There are 56 positive 
        and 53 negative determinations. These determinations are DOE's 
        main ``product'' under Subtitle D.
   Congressional inaction with respect to funding does not 
        explain DOE's failure to meet this commitment. When Congress 
        asked DOE on three occasions whether it needed more funding in 
        early 2003, DOE wrote ``no'' we have enough funding. DOE 
        announced it needed a 368% budget increase on July 30, 2003 
        when it was clear that the100 claims/week commitment by August 
        wasn't going to be honored.
   Under Subtitle B, the DOL has completed 95% of its 35,000+ 
        claims including medical evaluations within its area of 
        responsibility, and paid out almost $700 million in benefits to 
        energy workers and uranium miners in 2+ years. DOL takes an 
        average of 80-102 days to process a claim under Subtitle B 
        (FY03--4th quarter). DOL processes claims based on records and 
        employment data received from DOE. Splitting responsibility 
        between DOL and DOE has not resulted in a loss of 
        accountability.
   DOE has not even begun development on 75% of its claims. By 
        contrast, DOL began paying claims a mere 75 days after its 
        regulations were issued. DOE could have processed thousands of 
        beryllium, silicosis and asbestosis claims very rapidly, had it 
        geared up.
   When DOE presented its FY 03 budget to Congress, it promised 
        to move claims quickly by developing ``exposure profiles'' that 
        detail toxic chemical exposures at each of its major sites. 
        Specifically DOE wrote:

          ``As more information is developed about exposures at 
        specific sites through site profiles and we continue to work 
        with sites to optimize processes, the Department expects that 
        it will be processing claims at a rate of 100 per week by 
        August 31, 2003.'' \2\
---------------------------------------------------------------------------
    \2\ Response to written question 3(a) from U.S. Representative Ed 
Whitfield to Deputy Secretary McSlarrow, at a March 2003 House Energy & 
Commerce Committee hearing.

    To date, DOE has completed none of these exposure profiles. By 
comparison, NIOSH has issued six detailed site profiles, and will have 
another dozen profiles completed at DOE sites by year end. What 
explains DOE's failure to meet its commitment to develop these 
---------------------------------------------------------------------------
``exposure profiles?''

   DOE has stonewalled state compensation programs who offered 
        to solve the willing payor problem. For example, Ohio proposed 
        to become a willing payor for DOE a year ago. After DOE 
        rejected this offer, the Ohio BWC Director wrote: ``What 
        troubles me more than the length of time it has taken DOE to 
        respond is the lack of alternatives your staff has proposed to 
        help get this program off the ground.'' (Attachment ``A'') *
---------------------------------------------------------------------------
    * The attachments have been retained in committee files.
---------------------------------------------------------------------------
   To our knowledge, none of the claims approved by the 
        Physicians Panels have been paid yet. DOE has no system to 
        track whether such claims have been filed with the state or 
        their payment status.
   In FY 04 DOE has proposed a 368% budget increase to $59 
        million this year; however, DOE has not committed to meaningful 
        progress. OMB will only require DOE to process 25% of 15,000 
        claims (not to exceed 3,750) up to the doorstep of Physicians 
        Panel (not through it) in the next six months.\3\ This OMB 
        commitment is inconsequential, because in six months DOE will 
        have almost the same size backlog as it has today--due to an 
        average of 571 new claims being filed each month.\4\
---------------------------------------------------------------------------
    \3\ Letter from Joshua B. Bolten, Director of OMB to Senator 
Charles E. Grassley, November 6, 2003.
    \4\ GAO Briefing on Preliminary Findings for Staff of Honorable 
Pete V. Domenici, Chairman, Committee on Energy & Natural Resources, 
U.S. Senate, October 10, 2003, pp. 16.
---------------------------------------------------------------------------
   The FY 02 President's Management's Agenda calls for imposing 
        consequences on failing programs. It states: ``Underperforming 
        agencies are sometimes given incentives to improve, but rarely 
        face consequences for persistent failure. The all-carrot-no-
        stick approach is unlikely to elicit improvement from troubled 
        organizations.'' Rather than overhauling a failing program, the 
        Administration is rewarding failure by providing DOE with 
        increased funding while blocking Congressional reforms to 
        improve performance.\5\
---------------------------------------------------------------------------
    \5\ The President's FY 02 Management Agenda states: ``Many agencies 
and programs lack rigorous data or evaluations to show they work. Such 
evidence should be a pre-requisite to continued funding.'' Even though 
DOE cannot demonstrate that any part of its program works, OMB blocked 
reforms proposed in the Grassley-Murkowski Amendment to move this 
program to DOL.
---------------------------------------------------------------------------
   DOE has failed to meet its commitments to improve the rate 
        of claims processing so far. It has stonewalled efforts to find 
        a willing payor, even when one is handed to them on a platter 
        by Ohio. How many more times will DOE be allowed to 
        underperform?
   ii. doe is on a slow learning curve, and its own consultants have 
       identified design flaws in its claims development process
    First, DOE's own consultants indicated that this program suffers 
from ``design flaws'' DOE could be ``triaging'' its cases into groups 
that could be moved efficiently. DOE could be setting up ``super 
panels'' for common conditions and common illnesses. Some of these 
include claims evaluated and approved by DOL. Others come with easily 
rendered diagnoses.
    Second, as we look back, DOE wasted its Physicians Panels' scarce 
time by failing to prepare concise case summaries of medical facts and 
evidence. Extracting the relevant medical information into summaries is 
a staple of compensation programs in order to make it more efficient 
for doctors to decide claims. Of course, full documentation should be 
referenced and attached.\6\ We have interviewed participating 
physicians. Until recently, DOE has been giving doctors hundreds and 
hundreds of pages of documents to review. Even today, DOE is 
overloading doctors with paper for simple beryllium sensitivity cases 
that require a few pages of medical information. Some doctors have 
reported disorganized files, with duplicates that must be sorted out, 
wasting valuable time. DOE is now refining its approach, but only as a 
result of a process of trial and error that comes from learning on the 
job.
---------------------------------------------------------------------------
    \6\ In the Fernald II Settlement, detailed case summaries were 
prepared for the 3 doctor panels in neatly tabulated binders. DOE could 
have simply replicated this process.
---------------------------------------------------------------------------
    Third, DOE wasted the time of Physicians Panels by sending them 
claims for cases that had already been approved in state worker 
compensation systems!
    Fourth, DOE abandoned Notice 350.6, which directs contractors not 
to contest state claims if a physician in the DOE's Former Worker 
Medical Screening Program diagnosed a work-related illness \7\ Notice 
350.6 expired in January 2002.\8\ DOE could have reduced the backlog of 
claims sent to the Physicians Panel, if it had renewed and updated this 
Notice. It's failure to do so is inexplicable.
---------------------------------------------------------------------------
    \7\ The DOE Former Worker Medical Screening Program provides 
medical screening for occupational illnesses that may have been caused 
by exposure to radiation or toxic substances at DOE defense nuclear 
facilities. It was authorized pursuant to Section 3162 of the FY 93 
Defense Authorization Act (42 USC 7274(i)).
    \8\ http://www.directives.doe.gov/cgi-bin/explhcgi?qry1988382291; 
doe-526.
---------------------------------------------------------------------------
    Fifth, DOE ignored the February 26, 1998 directive issued by former 
Deputy Secretary of Energy Elizabeth Moeller, which barred contractors 
from contesting diagnoses of chronic beryllium disease in state worker 
compensation proceedings (Attachment ``A''). Despite the availability 
of a tool to streamline its case load, DOE insists on processing 
beryllium disease claims through its Physicians Panels, including those 
already approved by the Department of Labor. Why is DOE clogging up its 
panels with cases that could be readily disposed of through this 
directive?
    Sixth, DOE has failed to train its physicians on the requirements 
in the Physicians Panel regulations (10 CFR 852), and has not provided 
clear guidance on the proper ``standard of causation'' to use when 
evaluating cases. In one case, this misleading guidance forced an 
appeal for a former Rocky Flats worker. The Office of Hearings and 
Appeals vacated the decision and remanded it back to a physicians panel 
to re-review the case and apply the proper standard of causation.\9\ 
This was a waste of resources.
---------------------------------------------------------------------------
    \9\ Case Number TIA-0025 (June 30, 2003)
---------------------------------------------------------------------------
           iii. legal consequences of doe's poor performance
    These delays have adverse legal and human consequences. While 
claimants are waiting for cases to go through the Office of Worker 
Advocacy, the statutes of limitations have been expiring in certain 
states. Lawyers in Ohio have advised claimants to stay away from the 
DOE ``assistance'' program because they have no assurance that the 
DOE's physicians panel will reach a decision before the statutes of 
limitations runs out under Ohio's state workers' compensation program. 
An Oak Ridge attorney contacted DOE for assistance when his client was 
denied the right to file in Tennessee because the statutes of 
limitations ran out while his claim was awaiting review by DOE's Office 
of Worker Advocacy. DOE was asked to change its policies so that the 
DOE's contractors would agree to ``toll'' statutes of limitations if a 
case was taking longer than the statutes of limitations in Tennessee 
and there was an adverse Physicians Panel outcome. Despite a reasonable 
request from the worker's attorney, DOE refused to change its policy. 
The worker has lost his right to file with state, and as a consequence, 
DOE's delays have compromised the rights of this and many other 
claimants.
   iv. doe contractors' role in claims valuation must be defined or 
         claimants will find themselves enmeshed in litigation
    DOE has yet to define what posture contractors should adopt in 
resolving disputes over claims valuation. One area which is commonly 
disputed is the ``degree of disability'' (e.g., partial vs total 
disability) and this disability finding impacts the size of the 
payment.
    How should claims valuations issues be resolved? Most state worker 
compensation programs have an adversarial ``claims valuation'' process. 
Subtitle D mixes a non adversarial ``causation'' finding with a 
potentially adversarial state ``claims valuation'' process. Should DOE 
contractors be allowed an unlimited right to litigate disability claims 
with which they disagree? If DOE uses a Third Party Administrator to 
pay claims, how will disputes over the value of a claim be resolved? 
What role will the Office of Worker Advocacy take in guiding the 
contractors' posture to guide settlements?
    To harmonize this program, the dispute resolution process should be 
non-adversarial at every stage, such as the one used by the Department 
of Labor under EEOICPA Subtitle B.
 v. the forthcoming physicians panel bottleneck can be mitigated with 
                          several key reforms
    In the future there will be a bottleneck at the Physicians Panels 
absent some reforms. To date 123 physicians have been appointed to 
DOE's Physicians Panels by NIOSH. Physicians are selected by NIOSH--
instead of the DOE in order to provide a measure of independence. The 
first doctors were appointed in July 2001. It is expected that another 
37 will be appointed this month. At least six physicians have withdrawn 
since the commencement of the program.

   Congress must eliminate the statutory cap of $60 per hour to 
        pay doctors who serve on a Physicians Panel.\10\ Physicians 
        with a clinical practice cannot afford to take these cases 
        without incurring a loss. This problem was identified by DOE 
        staff and the DOE Advisory Committee more than a year ago, but 
        DOE has proposed no solutions. Both the Reform of Energy 
        Workers Compensation Act (H.R. 1758),\11\ and the Grassley-
        Murkowski amendment to the FY 04 Energy and Water 
        Appropriations Act, as amended, offered solutions. Although 
        eliminating or raising the cap will attract a number of 
        physicians with clinical practices who presently cannot afford 
        to serve on Physicians Panels, it is by no means a silver 
        bullet for what ails the program.
---------------------------------------------------------------------------
    \10\ 42 U.S.C. 7385o(d)(2)(B) states: ``Each member of a panel 
shall be paid at the rate of pay payable for level III of the Executive 
Schedule for each day (including travel time) the member is engaged in 
the work of a panel.''
    \11\ H.R. 1758 raises the cap to approximately $100 per hour. The 
Grassley-Murkowski amendment deleted the statutory cap and allowed DOL 
to set the physicians compensation levels, as they do in all of their 
other compensation programs.
---------------------------------------------------------------------------
   A properly prepared case summary will allow more efficient 
        use of physicians by reducing the physician-hours per case.
   Physicians Panels could use two physicians and only call in 
        a third when a tie breaker is needed. This would mathematically 
        increase the availability of doctors.
   Reinstatement of DOE Order 350.6 will make the physicians in 
        the DOE former worker medical screening program more widely 
        available.

    The physician shortage does not explain DOE's backlog today, but 
this issue is looming on the horizon as a matter requiring 
Congressional action.
 vi. doe has abolished its advisory committee and ignored expert advice
    DOE has ignored, or only slowly accepted, the expert advice 
provided by the Worker Advocacy Advisory Committee (WAAC). On January 
1, 2003, DOE allowed the charter of this Federal Advisory Committee to 
expire and has not reconstituted it, despite promises to members of 
Congress and the public.
    What explains DOE's abolition of its expert advisory committee? Was 
the glare of public oversight too uncomfortable? Clearly, this expert 
Advisory Committee had not outlived its utility if it was attached to 
an agency that wanted to receive its advice.
vii. doe's use of an underqualified contractor coupled with doe's lack 
   of institutional expertise has led to a poorly performing program
    On November 21, 2001, DOE entered into a Memorandum of Agreement 
(``MOA'') with the Navy's Space and Naval Warfare Information 
Technology Center (``SPAWAR'') to provide the services of a support 
service contractor, Science and Engineering Associates (``SEA''), to 
the DOE.\12\ SEA provides all of the manpower for running the claims 
development under Subtitle D. FY 04 projected revenues exceed $30 
million, compared with $15.8 million in FY 02 and 03.\13\
---------------------------------------------------------------------------
    \12\ The Space and Naval Warfare Systems Command Information 
Technology Center web site is http://www.spawaritc.navy.mil. This rapid 
growth in revenues from DOE explains SEA's opposition to transferring 
the program to DOL.
    \13\ Source: Response to written question 3(d) from U.S. 
Representative Ed Whitfield to Deputy Secretary McSlarrow, at a March 
2003 House Energy & Commerce Committee hearing.
---------------------------------------------------------------------------
    Nothing on SPAWAR's website states that it has any subject area 
expertise in worker compensation issues. Similarly, nothing SEA's 
resume indicates any specific expertise in worker compensation claims 
processing.
    There are government agencies, particularly the DOL, which 
specialize in worker compensation programs, but the Navy's SPAWAR is 
not among them. Similarly, there are firms which specialize in worker 
compensation claims processing, but SEA is not amongst them. DOE has 
not demonstrated, nor can it, that only SEA was qualified. What logic 
led DOE to enter into a MOA with the Navy, instead of the DOL?
    While DOE purports to have entered into the MOA under the authority 
of the Economy Act, that law requires DOE to issue a ``Determination & 
Finding'' that, among other things, the services are not economically 
available to DOE by DOE contracting directly with a private entity 
through full and open competition (see: 48 CFR 17.503). Agencies are 
forbidden to use interagency acquisition as a mean of avoiding full and 
open competition.\14\ DOE has not made this certification public, 
despite requests from Congress. It will be interesting to learn how DOE 
could make such justification where SEA has no history of establishing 
worker compensation claims programs, while other firms offer such 
specialized expertise without a learning curve.
---------------------------------------------------------------------------
    \14\ Government Contracts Reference Book, Nash, Schooner, 1992, pp. 
229.
---------------------------------------------------------------------------
    It also appears that DOE lacks the specialized expertise needed to 
assure that SEA's performance is adequately defined, supervised, and 
evaluated. Today, there are roughly six federal employees running DOE's 
program in the Office of Worker Advocacy (``OWA'') who are overseeing 
approximately 70 SEA contractor employees. There is only one federal 
official in OWA who has a resume with previous worker compensation 
program experience, and they are not overseeing SEA. DOE's use of SEA 
may have been prudent, if SEA had the requisite expertise to set up an 
efficient program, or DOE had the expertise to direct the contractor. 
However, neither the GAO nor the Hays Company consulting report 
determined that DOE has established an efficient program. Indeed, we 
estimate that the administrative cost for developing each claim over 
the past year is approximately $15,000.
   viii. doe's claims processing problems are not overly complex or 
     insurmountable if the agency has the commensurate skills and 
                             infrastructure
    DOE would like Congress to believe that their poor performance 
relative to DOL is that it has an exhaustive records recovery task and 
medical evaluation process. This is true for a small percentage of 
cases, but significantly overstates the difficulty of their task.
    Let's turn the question around: if Subtitle B claims had been given 
to DOE, would DOE have issued regulations, set up field offices, 
processed 95% of the 35,000+ claims received and issued payments of 
approximately $700 million in the same time frame as the DOL?
    Based on a DOE-DOL assessment several months ago which compared 
claimants using social security numbers, approximately 95% of the DOE's 
Subtitle D claims were also filed with the DOL. Subtitle C of EEOICPA 
allows claimants who qualify under Subtitle B to also file with state 
worker compensation programs for wage replacement if they are disabled. 
DOL has developed portions of those cases which overlap, and they are 
sharing these files with DOE.
    First, roughly 80-85% of the DOE's cases can be handled without a 
major document recovery burden. Only 15-20% of the DOE's cases will 
require extensive exposure assessments and research by DOE. Moreover, 
DOE says it has to dig into 50 years worth of contractor medical 
records. That is not needed. DOL relies upon the claimant's personal 
medical records.
    Second approximately 60% of the overlapping cases also had medical 
conditions covered under Subtitle B, and thus DOL was required to fully 
develop the case. DOE can use DOL's case development, which makes their 
task relatively simple. DOE is wasting the time of Physicians Panels 
asking them to reconstruct radiation doses.
    Third, approximately 30% of the overlapping claims do not have a 
covered condition under Subtitle B. With respect to these cases, over 
1300 (>7%) claims involve ``fingerprint'' occupational diseases like 
asbestosis or silicosis, which are comparatively easy to diagnose and 
do not require extensive research.\15\ Another 1,100 cases (>6%) 
involve beryllium disease or beryllium sensitivity. These cases have 
already been developed by the DOL, and could have been processed en 
masse without having to dig out any additional medical or exposure 
records. Lacking a credible explanation for its performance, DOE is 
making a mountain out of a molehill.
---------------------------------------------------------------------------
    \15\ Source: GAO Briefing on Preliminary Findings for Staff of 
Honorable Pete V. Domenici, Chairman, Committee on Energy and Natural 
Resources, United States Senate, October 10, 2003, pp. 16.
---------------------------------------------------------------------------
   ix. dol can move much more quickly than doe in processing claims 
  because it has the expertise, the infrastructure and the experience
   DOL has the infrastructure. DOL has been handling worker 
        compensation claims for 90 years through four programs 
        including: the Federal Employee Compensation Act, the Longshore 
        & Harbor Workers Act, the Black Lung Benefits Program and 
        EEOICPA Subtitle B. DOL has 200 trained EEOICP claims examiners 
        at four offices ready to start work as soon as they are 
        assigned. DOE will face delays in ramping up its program 
        because SEA (its contractor) has to hire 140 claims processing 
        staff and train them.
   Three years have passed and DOE is still trying to design a 
        functional claims processing system. Hay Company had identified 
        ``design flaws'' in DOE's case processing systems.
   By contrast, DOL established a credible claims program in a 
        matter of months, not years.
   Splitting responsibility between DOL and DOE has not 
        resulted in a loss of accountability under Subtitle B, and 
        would not do so if processing was shifted to DOL.
   Due to the 95% overlap between claims filed with DOE and 
        DOL, DOL has already finished aspects of claims development, 
        including employment verification and medical records 
        evaluation. On day one, DOL would begin with a major head start 
        over DOE, because they have already developed, in part, many of 
        the DOE's languishing claims.
 x. the grassley-murkowski amendment would have repaired the front end 
of the claims process by transferring claims processing and physicians 
             panel responsibilities to department of labor
    The Grassley-Murkowski amendment, as amended, would have shifted 
claims processing and Physicians Panels from DOE to DOL. If adopted, it 
would:

          1) provide authority for the Secretary of Labor to assume 
        responsibility for claims processing, Physicians Panels, a non-
        adversarial appeals process, and development of information 
        needed for physicians to make an informed decision;
          2) require DOL to utilize DOE's existing Physician Panel 
        regulations for up to 180 days until DOL promulgated interim 
        regulations in order to prevent delay;
          3) eliminate the cap on payments to physicians and allow DOL 
        to set the rate for physician panels;
          4) require DOL to maintain the DOE's existing standard of 
        causation, protect against conflict of interest, require a 
        simple majority for a panel determination and assist claimants 
        if added medical information is needed by the Physicians Panel;
          5) authorize use of the DOE former worker medical screening 
        programs to assist in the development of exposure assessments 
        and medical determinations;
          6) require DOE to transfer records to DOL; and
          7) transfer $35 million from DOE to DOL for FY 04.

    This approach enjoyed bipartisan support from certain Senators in 
states where 85% of the claims have been filed so far, and should be 
reconsidered as part of a reform proposal.
xi. doe and sea's opposition to dol taking over the claims programs are 
                  bedrocked on unsupported contentions
    DOE and its contractor SEA opposed the Grassley-Murkowski 
Amendment, saying it would lead to added delays. DOE argued that if it 
received the $59 million it asked for in FY04 it would process 100% of 
its backlog of nearly 20,000 claims. However, when pinned down for a 
hard commitment, OMB would only commit DOE to processing more than 
3,750 claims out of its backlog in 6 months. Not all 20,000 in the next 
year.
    The reason for the delay: SEA cannot accelerate processing of 
claims because it faces delays related to hiring and training 140 
staff. By contrast, DOL doesn't face this steep ramping up process; it 
hits the ground running much faster.
    DOE/SEA maintain that delays from additional hiring and training 
are acceptable, but potential delays in transferring the program to DOL 
are objectionable and unacceptable. DOE's double standard is not 
supportable.
    After the Grassley-Murkowski Amendment was stripped from the Energy 
and Water bill, we now learn that DOE is not willing to honor its 
previous claims development targets of finishing 100% of its claims 
backlog in 12 months with funding.
    SEA's lobbyists assert that it is unfair to compare SEA's 
performance with DOL's, because DOL runs a simple ``pay/no pay'' 
system. This is inaccurate and misleading.
    DOL performs detailed medical determinations to verify medical 
conditions under Subtitle B in order to comply with the EEOICPA 
criteria for determining causation. For claims involving beryllium 
disease or silicosis, the Act established medical criteria that must be 
met in order for a claimant to establish a covered disease.
    Each cancer must be verified and the location of the primary cancer 
must be determined. DOL claims examiners must review the medical 
evidence in the file, evaluate the results of medical tests, and 
determine if the case meets the criteria of the Act, regardless of the 
presence or absence of a specific diagnosis. DOL has had to develop 
numerous policies and a significant expertise to accomplish these very 
complex adjudications. Additionally, DOL must determine which medical 
conditions are ``consequential illnesses'' in order to determine what 
medical costs the government is responsible for.
                    xii. dol is more cost effective
    DOL's requirement for FY 04 to run this program is $35 million, far 
less than the DOE's requests for appropriations and fund reprogramming 
of $59 million. DOL has one of the lowest overhead rates for its worker 
compensation claims programs in the country.
  xiii. reforms are urgently needed to assure that valid claims have 
                           ``willing payor''
    Once a Physicians' Panel issues a positive determination, DOE is 
required to provide the claimant with ``assistance'' in filing their 
claim with a state workers' compensation commission. Pursuant to 
Subtitle D of EEOICPA, DOE must direct contractors not to contest the 
state workers' compensation claims, to the extent allowable by law, and 
DOE may not reimburse contractors for legal costs of contesting such 
claims.
    However, this doesn't necessarily mean that the claim will be paid. 
Although DOE's prime contractors can be directed to pay claims, some 
``payors'' are not under DOE's control and are unwilling to pay (e.g., 
prime contractors participating in exclusive state funds and 
contractors who have a policy with a worker compensation insurance 
company). Moreover, DOE's recent state agreements appear to allow 
contractors to contest the valuation of claims. Finally, no specific 
source of funds has been identified for paying such additional claims, 
other than the appropriations provided by DOE for its contractors 
personnel accounts.
    Today, there are no state commissions or insurance companies who 
have agreed to be bound by DOE Physician Panel determinations. Although 
DOE entered into Memorandum of Agreements (MOA) with 14 states (AK, CA, 
CO, ID, IA, KY, MI, NM, NV, OH, SC, TN, TX, MI), none of these 
agreements require states to accept the findings of a Physicians' 
Panel. All 14 states reserve the right to impose their own provisions 
of state law rather than abide by the findings of DOE or its 
Physicians' Panel.
    For example, the DOE-Alaska Commission Agreement of 9/13/02 is 
typical of the boilerplate language used in these agreements:

          ``A positive determination pursuant to Part 852 [DOE's Rule] 
        has no effect on the scope of State worker compensation 
        proceedings, the conditions for compensation, or the rights and 
        obligations of the participants in the proceeding; provided 
        that consistent with Subtitle D, such a determination will 
        prevent DOE and may prevent a DOE contractor from contesting an 
        applicant workers compensation claim, and DOE may agree to 
        indemnify a DOE contractor/insurer for State of Alaska workers 
        compensation claims.''

    Claims payment hinges on whether DOE's current site contractors are 
self-insured for workers' compensation to pay the claims. These 
contractors will then be reimbursed by DOE from appropriated funds. 
However, not all DOE contractors are self-insured. DOE has not 
identified a ``willing payor'' in IA, OH, KY, AK, MO and NV (prior to 
1993). Moreover, large groups of workers subcontractor employees, 
construction workers, security guard forces--across all DOE sites have 
no ``willing payor'' because their employers frequently purchased 
worker compensation insurance. A ``willing payor'' is an entity which 
DOE can meaningfully direct to pay claims after a Physicians Panel 
determines that a claim is work related.
     doe has not defined the size of the ``willing payor'' problem
    In 2002, DOE's General Counsel verbally indicated that up to 50% of 
valid claims may not have a ``willing payor''. Nine Members of the 
House Energy & Commerce Committee in March 2002 asked DOE to assemble a 
list of locations where it had self-insured contractors and where it 
lacked a ``willing payor.'' On June 7, 2002 DOE stated, ``We are 
currently compiling, updating and confirming for accuracy this 
information. We will provide it to the Committee as soon as possible.'' 
\16\ No such information was ever produced.
---------------------------------------------------------------------------
    \16\ June 7, 2002 letter from Beverly Cook, Assistant Secretary of 
Energy to U.S. Representative Ted Strickland, pp. 3.
---------------------------------------------------------------------------
    In March 2003, U.S. Representative Ed Whitfield again asked DOE 
which locations had a willing payor and which locations didn't. DOE 
responded:

          EEOICPA did not confer on DOE any authority to identify or 
        seek ``willing payors.'' It simply directed DOE to exercise its 
        contract administration authority with respect to its existing 
        contractor in a manner that would encourage those contractors 
        not to contest workers' compensation claims filed by their 
        employees who had received a favorable final determination from 
        a DOE Physician Panel. DOE is so directing its current 
        contractors.

    This 2003 answer from DOE refuses to provide an analysis which, 
back in 2002, DOE said it would provide to the Energy & Commerce 
Committee ``as soon as possible.''
    GAO has indicated from a preliminary review of 9 sites that only 
14% of the cases lack a willing payor. We believe this underestimates 
the problem, because GAO has run into obstacles trying to audit DOE's 
data base to determine how many claims have a ``willing payor.'' For 
example, claims cannot be sorted by last employer, so the insurance 
status cannot be determined.
    DOE's former Worker Advocacy Advisory Committee (WAAC) warned the 
Secretary in August of 2001, and again in June of 2002, that the 
absence of a ``willing payor'' was a large, unresolved problem which 
would pose a ``gross inequity'' to claimants.
    On June 27, 2002 WAAC Chairwoman Emily Spieler (Dean of the 
Northeastern University Law School) wrote on behalf of the Committee:

          ``WAAC Members thought that there was no legal impediment to 
        payment of these claims by DOE. But we also think that if DOE 
        is unwilling or unable to pay these claims, it's absolutely 
        essential for DOE to seek additional appropriations or support 
        alternative legislative solutions that will result in payment 
        of these claims without throwing them into the state workers' 
        compensation systems to be litigated. If the latter occurs, 
        insurers and state funds will not be required to waive any 
        technical or other defenses to these claims, and it is highly 
        likely (after considerable administrative expense) that few, if 
        any, of these claims will be paid.''

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

          ``The issue of mechanisms of payment of claims where there is 
        no current contractor with responsibility for paying a claims 
        remains a concern. We will continue to explore possible 
        remedies with the WAAC, the General Counsel and Congress to 
        correct this inequity.''

    Neither DOE nor the Administration has proposed solutions to this 
``inequity,'' despite repeated requests from Governors, state worker 
compensation commissions and Congress.
    In Alaska, DOE's failure to identify a willing payor has created 
chaos for claimants. Sylvia Carllson was one of the first Alaskans to 
receive a positive Physicians Panel determination from the Office of 
Worker Advocacy (DOE). She is a widow/survivor. Her husband was a shaft 
miner on Project Cannikin at Amchitka Island from 1970 through 1971. He 
was exposed to ionizing radiation in the course of his employment for 
Kiewit-Centennial, a prime contractor of the Atomic Energy Commission. 
He died before his 41st birthday in 1979 of colon cancer. Ms. Carllson 
has detailed her situation in a November 5, 2003 memo, and I have 
included excerpts below:

          Beverly Cook, DOE Assistant Secretary, in her April 16, 2003, 
        letter to me suggested that I apply for workers compensation 
        based on the positive and unanimous finding by the Physicians 
        Panel. Her letter also stated that a cognizant contracting 
        officer would notify the contractor to accept primary liability 
        for my claim and would instruct the contractor not to raise 
        affirmative defenses against my claim.
          I filed a claim under the Alaska Workers Compensation system. 
        Contrary to Secretary Cook's letter to me, two different 
        attorneys representing the contractor, Kiewit-Centennial and 
        two different insurance carriers and adjusters have been 
        aggressively, almost savagely contesting my claim.
          Affirmative defenses raised by opposing attorneys include the 
        following: 1) Is the Employer (Kiewit-Centennial) entitled to 
        an offset to any amounts recovered by the Claimant (me) under 
        the EEOICPA; and 2) Does the release (under Subtitle B) signed 
        in the federal arena bar recovery under state workers' 
        compensation? Other actions taken by the opposing attorneys 
        include:

                  a six-hour deposition with questions based primarily 
                on my claims submitted to DOE under Subtitles B and D 
                of the EEOICPA. I would characterize the entire 
                deposition as insulting, intimidating and a waste of 
                time and money.
                  demands for volumes of documentation relating to my 
                claims under Subtitles B and D of the EEOICPA; for 
                medical information; Social Security applications and 
                personal information regarding my husband. The cost of 
                reproducing documents for two different law firms, the 
                contractor, adjusters and the Alaska Workers 
                Compensation Board has amounted to over several hundred 
                dollars.
                  attending pre-hearings and hearings scheduled by the 
                Alaska Workers Compensation Board. Although I am now 
                represented by an attorney, I am participating fully in 
                the defense of my claim.

          The merits of my case were originally scheduled to be heard 
        before the Alaska Workers Compensation Board November 4, 2003. 
        Opposing attorneys have begun petitioning the AWCB for 
        continuances. So far, opposing attorneys have been successful 
        in obtaining two continuances. I expect this practice of 
        petitioning for stays to continue. My case may be heard 
        sometime in 2004 if I'm lucky.
          Opposing attorneys in my case have led the effort in Alaska 
        of requesting that all insurance companies involved in the 
        Amchitka cases pool their resources in order to retain medical 
        experts to counter the Subtitle D determination. Fred Mettler, 
        Jr., MD, MPH, Professor Emeritus with the University of New 
        Mexico Department of Radiology and John R. Frazier, PhD, CHP 
        with Auxier and Associates have been retained to assist 
        opposing attorneys in defeating my claim. Incidentally, John R. 
        Frazier is senior analyst with a firm that has been contracted 
        to produce site profiles for NIOSH under the EEOICPA, a 
        definite conflict of interest in my opinion. It is my 
        understanding that both Drs. Mettler and Frazier are being 
        compensated to testify against my claim at the rate of one 
        thousand dollars per hour.
          DOE has pointed out that they were successful in negotiating 
        a Memorandum of Understanding with the State of Alaska which 
        allowed them to accept my Subtitle D application. The MOU is 
        meaningless. No one in the Alaska Workers Compensation office 
        in Anchorage or in Juneau understands the significance of the 
        MOU. It neither helped nor hindered my workers' compensation 
        claim.
          Had DOE fulfilled its obligations under the EEOICPA, I would 
        not have been put in the position of defending my claim under 
        the Alaska Workers Compensation system. Had DOE addressed the 
        ``willing payor'' issue, the matter of adjudicating my claim 
        under the AWCB would have been unnecessary. DOE has steadfastly 
        refused to even respond to inquiries about the Willing Payer 
        issue.\17\ Governor Frank Murkowski, who worked with a 
        bipartisan congress to pass the EEOICPA, called upon Secretary 
        Abraham to find a solution to the Willing Payer issue. Governor 
        Murkowski's May 2003 letter is to this day unanswered. U. S. 
        Senator Lisa Murkowski and Congressman Don Young from Alaska 
        have both asked Secretary Abraham to resolve the willing payor 
        issue, without success. It appears to me that Secretary Abraham 
        and his staff have taken the term ``stonewalling'' to new 
        heights on the issue of finding a willing payor. My question is 
        why has the Department of Energy been allowed to continue its 
        miserable performance of implementing Subtitle D of the 
        EEOICPA.
---------------------------------------------------------------------------
    \17\ See Attachment ``C"
---------------------------------------------------------------------------
          I am respectfully requesting that this Committee recognize 
        that DOE is simply unable and unwilling to fulfill the 
        obligations it was charged with under the EEOICPA. If DOE 
        cannot answer why it is unwilling or unable to meet the 
        responsibilities it has to Subtitle D applicants, then it 
        should at the very least step aside so that another agency can 
        complete the job.

    Ms. Carllson is encountering precisely what the Advisory Committee 
warned against. In three years, DOE has taken no meaningful steps to 
resolve the willing payor problem. DOE officials blame this on Congress 
and a poorly crafted statute. But, DOE has proposed no credible 
solutions, and rejected responsible bi-partisan legislative reforms 
such the Reform of Energy Workers Compensation Act (H.R. 1758), whereby 
the DOL could serve as the Third Party Administrator to pay all claims 
using a benefit level set under the Federal Employee Compensation Act 
(5 U.S.C. 8101 et seq).
    Further, DOE will not intervene in the Alaska proceeding to defend 
its own Physicians Panel determination in Alaska. Precisely what 
``assistance'' is DOE providing in the Carllson case, if it cannot 
provide a willing payor and won't even defend its own Physician Panel 
decisions?
    One proposal is for DOE to retain a non-risk bearing Third Party 
Administrator. In Colorado, DOE's contractor, Kaiser-Hill, is required 
to contest valid worker compensation claims as a result of a $1 million 
``top layer'' insurance policy. Kaiser-Hill has reportedly entered into 
an arrangement with Pinnocol Insurance to serve as a Third Party 
Administrator to pay valid occupational illness claims. According to 
the State of Colorado, authority to proceed to pay claims has not been 
granted due to the absence of a waiver from the predecessor contractors 
and most importantly--an assured source of funding to cover multi-year 
obligations. This proposed agreement has not been made public and 
should be.
  xiv. physicians will be driven out of the program without a willing 
                                 payor
    Physicians have been subpoenaed in this Alaska worker compensation 
case, and subjected to interrogatories. Allowing physicians to be 
enmeshed in litigation will eventually drive some out of the program at 
a time when the program has a shortage of physicians. The physicians 
are in no position to be summoned to Alaska, nor has DOE committed to 
cover such costs in connection with defending Physicians Panels 
determinations.
               xv. recommended solution to fix subtitle d
    DOL should be assigned the primary responsibility to administer the 
program for compensating DOE contractor employees made ill from 
exposure to toxic substances at Department of Energy facilities, 
including: (a) the processing and evaluation of claims; (b) the 
management of Physicians Panels; (c) and serving as the payor for such 
claims.
    DOL would evaluate disability claims and use the Federal Employee 
Compensation Act (FECA) as the template for setting benefit payment 
levels. DOL would use its existing EEOICPA staff now used for Subtitle 
B claims, inasmuch as the DOL has worked off its backlog. Benefits 
could be funded with discretionary appropriations whereby DOE would 
reimburse DOL for the cost of benefits, similar to the model in place 
today for FECA. Alternatively benefits could be appropriated through 
direct spending to the EEOICPA Fund at the DOL. Subtitle B is funded 
through direct spending. The Reform of Energy Workers Compensation Act 
(H.R. 1758) establishes DOL as the willing payor using this model.
    Under this reform, DOE would be tasked with providing individual 
employment and workplace information necessary to the Secretary of 
Labor. DOE would be relieved of funding its self-insured contractors 
with discretionary appropriations to pay approved claims.
    We recommend that either NIOSH and/or DOE former worker medical 
screening programs be tasked to provide exposure assessments for each 
of the major Department of Energy sites. Further NIOSH should continue 
to appoint Physician Panels, and should assist DOL in developing 
diagnostic presumptions, where possible, for illnesses related to 
exposure to toxic substances.
    Moving Subtitle D, including claims payment functions, to DOL makes 
sense because: 1) it simplifies public understanding by providing 1-
stop shopping for claimants; 2) DOL has the expertise and 
infrastructure to implement the entire program, including claims 
processing and claims valuation; 3) DOL has credibility because it has 
met its previous commitments, and (4) DOL has demonstrated that it can 
start up work with minimal delays.
    Outlined below is a comparison of options to reform Subtitle D:

 
----------------------------------------------------------------------------------------------------------------
            Function                         Current Law                 H.R. 1758          Proposed Reform
----------------------------------------------------------------------------------------------------------------
Records Recovery................  DOE                                DOE               DOE
Claims Processing...............  DOE                                DOE               DOL
Physician Panel/Causation.......  DOE                                DOE               DOL
Appeals of Panel................  DOE                                DOE               DOL
Determination of Disability.....  State                              DOL               DOL
Determination of Amount $.......  State                              DOL               DOL
Appeals of Disability/$.........  State                              DOL               DOL
Payment of Claim................  50-75% DOE contractor              DOL               DOL
                                  25-50% no payor                    DOL               DOL
----------------------------------------------------------------------------------------------------------------

                              xvi. summary
    The DOE's program has 3 key elements, all of which are in need of 
reform none of which DOE seems capable or inclined to fix. No matter 
how well intentioned, DOE's failure to make a meaningful dent in its 
backlog or move more than a handful of claims over the past three years 
speaks for itself. Claimants need a willing payor, not litigation 
headaches. Doctors may be driven away from the program if they are 
unwittingly ensnared in litigation that they never intended to join.
    Sick workers do not have time for DOE to learn on the job, nor can 
they withstand the legal machinery awaiting them in states where there 
is no willing payor. So far the only winner has been a support service 
contractor generating healthy revenue gains, which has fought reforms 
in order to maintain the status quo. It is time to give this job to 
those who have the skills and infrastructure to perform. It is time for 
the public interest to prevail.
    It makes no more sense for Congress to assign DOE a worker 
compensation program than it does to assign a nuclear weapons program 
to the Department of Labor (DOL). By adopting comprehensive reforms 
which shifts this program to the DOL, Congress can honor its commitment 
to cold war veterans who have been put at needless risk and harmed by 
DOE, its predecessor agencies, and their contractors.

    Senator Bunning. Thank you, sir.
    Mr. Donald Elisburg.

   STATEMENT OF DONALD ELISBURG, ATTORNEY, ON BEHALF OF THE 
    AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL 
 ORGANIZATIONS (AFL-CIO) AND THE BUILDING CONSTRUCTION TRADES 
                       DEPARTMENT (BCTD)

    Mr. Elisburg. Thank you, Mr. Chairman. If I may offer our 
full statement for the record.
    Senator Bunning. Absolutely, without objection.
    Mr. Elisburg. I appreciate the opportunity to appear here. 
I will do my best to try to anchor this very distinguished 
group of colleagues here without being overly repetitious, 
because I think they have all really made the same points.
    My name is Don Elisburg. I am appearing today on behalf of 
the AFL-CIO and the Building and Construction Trades 
Department. I have been asked to testify because of my prior 
experience in implementing similar compensation programs in the 
past. I testified in support of the legislation that ultimately 
became EEOICPA before the Congress, specifically in support of 
assigning this program to the Secretary of Labor when this law 
was under consideration. I was also a member of the Workers 
Advisory Committee at the Department of Energy from January 
through December 2002.
    [Room lights flicker.]
    Senator Bunning. Hold on just a second. Let us see if we 
can correct our problem.
    [Pause.]
    Senator Bunning. Voila. Go ahead. Thank you.
    Mr. Elisburg. Obviously, the point of our appearing here is 
that the AFL-CIO and its affiliate members have a significant 
interest in the implementation of this program. They have been 
involved since the weapons program began as the Manhattan 
Project in the early 1940's, when the members of the affiliates 
built and maintained the many facilities used to develop and 
maintain nuclear weapons. The members of the AFL-CIO and its 
affiliates have also served as the principal production and 
operating personnel of these weapons facilities.
    For decades the AFL-CIO, the BCTD, the Metal Trades 
Department, PACE, the Laborers, and other unions have worked to 
secure safety and health rights and protections and just 
compensation for these workers.
    Unfortunately, the experience with the implementation of 
this program is just not what the sick workers or their 
survivors deserve, nor does it meet the objectives Congress set 
forth in the act. Energy workers with radiation-induced cancers 
and toxic exposures need timely compensation and that is not 
happening with these many thousands of claimants, as has been 
stated over and over again today.
    I would like to point out that our statement does deal with 
both subpart B and D. Subpart B is, for the record, relating to 
the dose reconstructions, but we do want to make clear that, 
despite the efforts of the Department of Labor in moving the 
claims along, the dose reconstruction that NIOSH is responsible 
for has also been set up for long delays and imperfect results, 
and basically that workers at places like Los Alamos, Savannah 
River, Rocky Flats are in the same situation as in the gaseous 
diffusion plants and Amchitka and that NIOSH should recognize 
that there are not sufficient records and information and 
simply put all of these workers in the special exposure cohorts 
with the same presumptions and benefits and move those claims 
along.
    As to subtitle D, I have to agree with much of the 
testimony of my colleagues today. As currently interpreted, it 
cannot work. The Department of Energy is neither structured nor 
is interpreting the statute to make it work as it might have. 
It was for that reason that the AFL-CIO was supportive of the 
Grassley-Murkowski amendment as indeed the first step in at 
least trying to alleviate some of this claims-handling process.
    Obviously, there are other issues that need to be dealt 
with, such as the willing payor and so forth. But it is very 
clear that the Department of Energy does not really have it. 
The statute is supposed to be interpreted to pay claimants. It 
was not devised to need another series of barriers and hurdles. 
The way in which the process is being interpreted turns 
Congress and its direction on its head.
    The concept was to determine the causation and then arrange 
through the State compensation system to have the claim paid by 
the contractor. The notion that you would spend a couple of 
years determining causation and then send them in for another 
couple of years to relitigate makes no sense and is simply 
denying claimants the relief that the Government admitted they 
owed.
    Certainly, when the Secretary of Energy signs off on a 
claim, they expect to pay. We cannot see how they have 
interpreted the relationships to simply say, yes, we will take 
you and your files and dump you on the doorstep of the agency, 
and you figure out how to get our contractor to pay money that 
we will then reimburse them anyway, because in the end it is 
all DOE money.
    I would also want to tell you personally that I do agree 
with the statements pretty much of Professor Burton and Richard 
Miller as to the sort of aggregate problems here and how they 
could be improved.
    I would like to--I know my time is up--sort of in 
conclusion say that as a member of the advisory committee we 
asked many of these questions. We told them from the beginning 
that the first in, first out probably made no sense, that they 
needed to move some claims that could be paid so they could see 
how the process would work.
    We raised the issue of willing payor over and over again. 
Aside from the documentation you have seen, we personally 
talked to Secretary Cook each meeting and we asked about the 
willing payor, should we turn the lobbyists loose on Congress, 
should we write a letter saying that something should be done? 
And each time we were told: No, we think we have a way out, we 
think there is a way to pay them, we think there is a way to do 
this; it is not necessary, etcetera, including, I might say to 
Leon, the gaseous diffusion plant at Paducah, which was 
specifically raised.
    I was somewhat surprised to hear the Department of Energy 
say, well, we sort of dumped it and we are not paying any 
attention to it.
    Finally, in the 2 years of the advisory committee activity 
I frankly never heard them raise the question that they did not 
have enough money to do their job. In addition, the questions I 
have not heard are, in addition to the question of the willing 
payor and those contractors they cannot find out there, at 
least half of these claims or more are going to be contractors 
where they know who they are and they will reimburse them, and 
those still are not moving forward to be paid.
    In short, Mr. Chairman, we think that this program has 
simply not met the points that Congress asked them to meet.
    [The prepared statement of Mr. Elisburg follows:]
       Prepared Statement of Donald Elisburg, Attorney, AFL-CIO, 
               Building & Construction Trades Department
    Mr. Chairman and Members of the Committee: My name is Donald 
Elisburg and I am appearing today on behalf of the AFL-CIO and the 
Building Construction Trades Department (BCTD), I have been asked to 
testify because of my prior experience implementing similar 
compensation programs in the past. I testified in support of the 
legislation that ultimately became EEOIPCA before the Congress, 
specifically in support of assigning this program to the Secretary of 
Labor when this law was under consideration. I was also a member of the 
Workers Advocacy Advisory Committee of the Department of Energy from 
January 2001 through December 2002. That Advisory Committee was 
appointed to assist the Department of Energy in implementing its 
responsibilities under EEOICPA.
    I want to thank you for the opportunity to testify on the 
implementation of the EEOICPA.
    The AFL-CIO and our affiliates have a significant interest in the 
implementation of this program because our involvement since the 
nuclear weapons program began as the Manhattan Project in the early 
1940's when members of our affiliate unions built, and maintained the 
many facilities used to develop and maintain nuclear weapons. Our 
members have also served as the principal production and operating 
personnel of these weapons facilities. For decades, the AFL-CIO, the 
Building and Construction Trades Department, Metal Trades Department, 
PACE, the Laborers and other unions have worked to secure safety and 
health rights and protections and just compensation for these workers.
    As we have testified before Congress many times, these workers were 
engaged and continue to be engaged in activities vital to the security 
of the United States. They deserve to be treated with fairness and 
dignity.
    EEOICPA was passed in recognition of the fact that the work at 
these facilities put workers at risk of injury, illness and death from 
exposure to radiation and various toxic chemicals and materials used in 
the nuclear weapons program. Secrecy put these workers at additional 
risk. EEOICPA was Congress' recognition and determination to compensate 
workers and their families even if it would not make them whole.
    Congress directed the President to implement this program. By 
Executive Order the program was assigned to the Departments of Energy, 
Labor and HHS.
    Unfortunately, the experience with the implementation of this 
program is just not what these sick workers or their survivors deserve, 
nor does it meet the objectives Congress set forth in the Act. Energy 
workers with radiation-induced cancers need timely compensation and 
that is not happening with many thousands of claimants. Problems exist 
with both Subpart B--administered by DOL and NIOSH--and with Subpart 
D--administered by DOE.
                           subtitle b issues
    Subtitle B of the Energy Employees Occupational Illness 
Compensation Program Act (EEOICPA), 42 U.S.C. Sec. Sec. 7384-7385, 
enacted in 2000, established a federal program to compensate workers at 
Department of Energy atomic weapons and contractor facilities for 
illnesses resulting from radiation, beryllium, and silica. The program 
provides a $150,000 lump sum payment and prospective medical benefits 
to covered employees or a lump sum payment to their survivors. To date, 
the Department of Labor has paid over $672 million in benefits. But 
there is a huge backlog of claims pending--more than 14,000--awaiting 
dose reconstruction by the National Institute for Occupational Safety & 
Health (NIOSH). Claims of workers with cancer who are awaiting payment 
because NIOSH has not completed their dose reconstruction arise in 
states throughout the country.
    NIOSH should streamline the procedures for evaluating these claims 
so workers and their survivors can be compensated in a timely manner as 
Congress intended. The fairest and most efficient way to do this is to 
streamline the procedures to add groups of workers to the Special 
Exposure Cohort so their claims can be considered on an expedited 
basis.
   radiation dose reconstruction and special exposure cohorts under 
                                eeoicpa
    When EEOICPA was passed, the Congress designated certain groups of 
workers with cancers linked to radiation exposure to be included in a 
special exposure cohort (SEC) because DOE's radiation exposure records 
were so poor it was not possible accurately to reconstruct each 
employee's radiation dose. Under the Act, workers employed at DOE 
gaseous diffusion plants in Oak Ridge, Tennessee, Paducah, Kentucky or 
Portsmouth, Ohio were automatically included in the SEC. Also, workers 
involved in testing activities on Amchitka Island, Alaska were 
designated as SEC members. For these employees, compensation is paid 
without regard to an employee's individual radiation dose if the 
claimant has one of the designated cancers and meets the Act's general 
exposure/employment criteria. These claimants receive compensation for 
cancer promptly.
    But for workers with cancer from all other DOE facilities, or for 
those with cancers other than those specified as presumptively linked 
to radiation exposure, different, complicated procedures were 
established--requiring either individual dose reconstruction or a 
lengthy process to designate additional members of the SEC. NIOSH has 
been given responsibility for both of these activities, but because of 
the complexities involved, has fallen years behind. More than 14,400 
claims are now pending dose reconstruction and no new members have been 
added to the SEC. So far, NIOSH has forwarded completed dose 
reconstructions to DOL for only about 700 claims. At the rate NIOSH is 
going, it will be years before these backlogged claims are processed 
and victims receive compensation. Meanwhile, DOE workers with cancer do 
not have the medical or cash benefits Congress provided and their 
widows grow old without the economic security to which they are 
entitled.
    backlog of pending claims at niosh awaiting dose reconstruction
    The backlog of pending claims at NIOSH is a problem that affects 
workers throughout the country and is particularly severe at some of 
the larger DOE weapons facilities where large numbers of workers were 
exposed to radiation. These facilities including Rocky Flats (CO), Iowa 
Ordnance Plant (IA), Idaho National Lab (ID), Fernald (OH), Los Alamos 
(NM), Nevada Test Site (NV), Savannah River (SC), Oak Ridge National 
Lab (TN), and Hanford (WA). The table below shows the number of claims 
(and individual cases) from all Department of Energy facilities 
awaiting dose reconstruction at NIOSH by state (for states with more 
than 50 claims).

 
----------------------------------------------------------------------------------------------------------------
                                                                               Claims Accepted
                            State                               Claims Filed          *         Pending at NIOSH
----------------------------------------------------------------------------------------------------------------
Alaska.......................................................        286              106               64
California...................................................      1,594              145              810
Colorado.....................................................      3,214            1,488              788
Florida......................................................      1,251              146              613
Idaho........................................................      1,097               56              652
Illinois.....................................................      1,120               95              540
Iowa.........................................................      1,079               30              599
Kentucky.....................................................      3,523              844              775
Massachusetts................................................        419                9              207
Michigan.....................................................        233               16              102
Missouri.....................................................      1,016               69              529
Nevada.......................................................      1,680              142              815
New Jersey...................................................        132               10               56
New Mexico...................................................      3,577            1,225              642
New York.....................................................      2,293              141            1,279
Ohio.........................................................      2,854              709            1,008
South Carolina...............................................      2,458               42            1,516
Tennessee....................................................      7,208            1,506            3,143
Texas........................................................      1,234              129              601
Washington...................................................      2,388              107            1,669
West Virginia................................................        508               34              90
----------------------------------------------------------------------------------------------------------------
* Accepted claims include claims for chronic beryillum disease, silicosis, as well as radiation cancer.

    One of the major reasons for this delay is that for many workers 
DOE radiation exposure records are incomplete, inaccurate or 
nonexistent. When NIOSH reconstructs a radiation dose, it must make 
educated guesses as to what an employee's dose was likely to have been. 
While NIOSH claims that its process is employee friendly, nobody can 
gauge whether NIOSH dose reconstructions bear any reasonable 
relationship to an employee's actual radiation dose. We cannot state 
too strongly the need to be sure that this aspect of the program is 
transparent and credible to the claimants and their families.
    As stated earlier, this entire compensation program has to be 
measured against the very long and well documented history of secrecy 
and deceit on the part of the Department of Energy and its predecessor 
agencies tracing back to the earliest days of the Manhattan Project. 
This long history and the resultant distrust of the DOE requires an 
open and transparent program. This is especially true given the 
technical complexity of dose reconstruction and the reliance on DOE to 
provide the dose data.
    Many thousands of our members served their country in the cold war 
by working at these facilities often under very difficult conditions. 
They deserve to be treated with respect and should have a compensation 
program that they can trust and understand.
    Unfortunately, some of the activities that NIOSH has undertaken 
appear to be at cross purposes with this goal of an open and 
transparent program. As an example, NIOSH has recently implemented a 
plan to develop site profiles for each major site as a framework for 
individual dose reconstructions. These profiles would include the major 
sources of exposure data for the site.
    However, NIOSH's procedure included no opportunity for input into 
these site profiles by unions, interested parties, etc. until after the 
profiles were complete and being used by NIOSH. This procedure only 
compounds the past mistakes made by DOE to hide information from the 
exposed workers and their families. The Advisory Board raised 
objections to this approach and has asked NIOSH to develop a more open 
process involving the local unions and other interested parties in the 
development and review of these site profiles in order to ensure the 
credibility of the dose reconstruction program.
    The Savannah River Site is a prime example. The site profile was 
released in August without any discussion or review with the local 
unions or other interested parties. NIOSH's initial excuse, that there 
were no unions at SRS, totally missed the fact that there have been 
union workers engaged in building and maintaining the SRS facility 
since the first construction activity a half century ago. We would note 
for the record, that after extensive protest, NIOSH finally conducted a 
meeting at SRS earlier this week to discuss this profile with the local 
unions and interested parties. These activities should not have to be 
undertaken only after claimant protests.
    Similiar concerns about the uncertainty of dose reconstruction have 
been raised about Department of Defense radiation dose estimates for 
military personnel. Unlike DOE nuclear workers, under veterans' 
compensation benefits, all veterans with specified cancers are presumed 
entitled to compensation. Dose reconstruction is used to determine 
whether to compensate veterans for other diseases. The National Academy 
of Science's Institute of Medicine recently evaluated the DOE dose 
reconstruction process. It concluded:

          Because specific exposure conditions for any individual often 
        are not well known, many participants did not wear film badges 
        during all possible times of exposure, and the available survey 
        data used to input the models often are sparse and highly 
        variable, the resulting estimate of total dose form many 
        participants are highly uncertain.
              problems with proposed niosh sec procedures
    There are major problems with the proposed procedures for the 
designation of additional members the SEC. Under EEOICPA, additional 
members of the SEC may be designated when it is not feasible to 
estimate with sufficient accuracy the radiation dose of the affected 
workers. (Section 3626). This spring, NIOSH proposed procedures for 
designating additional members of the SEC. The NIOSH proposal was 
strongly criticized by the Advisory Committee on Radiation and 
representatives of DOE workers. Decisions on adding additional members 
to the SEC can be expected to take at least two more years--almost five 
years from the enactment of EEOICPA. Employees seeking designation as 
members of the SEC will have to meet a high burden of proof--a burden 
not imposed on fellow workers from gaseous diffusion plants who have 
already received compensation for their radiation induced cancers.
    Workers at DOE facilities such as Hanford, Rocky Flats, and 
Savannah River, and other locations, are treated unfairly under 
EEOICPA. Their colleagues at gaseous diffusion plants, like veterans, 
are presumed eligible for compensation if they get certain cancers and 
many have received compensation. Meanwhile, these other workers, whose 
radiation doses likely were just as high and for whom radiation dose 
records are just as sparse, must individually demonstrate their right 
to compensation. The process for doing so, dose reconstruction, is too 
slow and inherently uncertain. Only a handful of workers outside the 
SEC have actually received compensation for their cancers since EEOICPA 
was passed.
  streamlining sec procedures and expediting compensation for victims
    EEOICPA needs to be fixed so DOE workers with radiation induced 
cancers or their survivors receive timely compensation. The following 
modifications to the program would accomplish this goal by simplifying 
and streamlining the procedures for adding additional groups of workers 
or facilities to the special exposure cohort. NIOSH has the authority 
to implement each of these policies, but has so far failed to do so:

   Set deadlines for NIOSH to respond to petitions to add 
        workers to the Special Exposure Cohort--providing 90 days for 
        response and an additional 45 days where NIOSH requests review 
        of the petition by the Advisory Committee on Radiation.
   Allow NIOSH to determine which petitions for adding groups 
        to the SEC need to be reviewed by the Advisory Committee. 
        (Currently all petitions, even those pertaining to small groups 
        of workers must be referred to the Advisory Committee.)
   Clarify that NIOSH may add a group of workers to the SEC if 
        it determines that representative records of radiation doses 
        for the individual are incomplete or missing and that radiation 
        may have caused or contributed to specified cancers among 
        members of the group. (These were the criteria that were used 
        to designate workers at gaseous diffusion plants as members of 
        the SEC in the original Act.) Currently, NIOSH attempts to 
        reconstruct doses even if individual monitoring records are not 
        available.
   Establish the same criteria for compensation for new groups 
        of workers added to the SEC as those set for gaseous diffusion 
        workers in the original Act.

    These revised procedures will streamline the process for evaluating 
petitions for expanding the SEC, and for those groups of workers who 
are added, expedite the process for evaluating their individual claims 
for compensation. Once added to the SEC, the same criteria for 
compensation will apply to these workers as applies to workers at the 
gaseous diffusion plants. The recommended procedures do not expand the 
number of workers eligible for compensation, nor should it change the 
anticipated costs of the program. Most of these claimants are already 
eligible for compensation. They are just required to wait far too long 
to receive the compensation they are due. Streamlining the process and 
clarifying the criteria by which these employees may be added to the 
SEC simply changes the procedures by which the merits of their claims 
are judged and speeds up the compensation process.
    Mr. Chairman, our organizations have a longstanding relationship 
with the Department of Labor and with NIOSH. We supported the 
assignment of this program to them. We believe that the Department of 
Labor has done a very commendable job so far in getting its program up 
and running. As the comments submitted by our respective organizations 
to NIOSH make clear, we believe that NIOSH is simply misreading its 
responsibilities under the existing law and has proposed a regulatory 
scheme that will not work and which will result in both a costly 
process and an intolerable wait by claimants for relief.
    If NIOSH persists in interpreting the statute with such restrictive 
requirements, then, we see no alternative but to support changes to the 
law that will ensure equal treatment of all claimants under this 
program. Frankly, it would be appropriate for Congress to designate the 
former workers from the other major weapons sites as members of Special 
Exposure Cohorts and simply bring to an end this long, costly and 
dubious process of dose reconstruction as well as a complex and costly 
process to establish separate SEC's site by site. Workers at Los 
Alamos, Hanford, Rocky Flats and Savannah River, for example, should be 
treated the same under this Act as those from the Gaseous Diffusion 
Plants or Amchitka.
    Mr. Chairman, I would like now to turn to other serious problems 
with EEOICPA, namely the Subtitle D program administered by the 
Department of Energy.
                  background on subtitle d of eeoicpa
    Subtitle D of the Energy Employees Occupational Illness 
Compensation Program Act (EEOICPA) was intended to take DOE out of the 
business of fighting state workers' compensation claims brought by sick 
nuclear workers who were employed at DOE defense nuclear sites. 
Benefits are provided for workplace-related disabilities and medical 
costs. In September 2002--almost two years after the enactment of 
EEOICPA--DOE issued a rule governing the operations of the Physicians' 
Panel (10 CFR Part 852). The rule established the criteria for 
Physician Panels to determine whether an illness or death arose out of 
and in the course of employment by a DOE contractor and exposure to a 
toxic substance. That criteria is whether ``exposure to a toxic 
substance at a DOE facility during the course of employment by a DOE 
contractor was a significant factor in aggravating, contributing to or 
causing the illness or death of the worker at issue.'' (See: 10 CFR 
Part 852.8).
    A simple majority of a Panel (two of three doctors) must agree in 
order to issue a determination. The rule prohibits contractor 
involvement in contesting Physician Panel findings, but allows 
claimants to appeal adverse Physician Panel findings within the DOE's 
Office of Hearings and Appeals. A total of 26 appeals have been decided 
to date. DOE estimated benefits and administrative costs for this rule 
at $130 million/10 years during the rulemaking. Physicians are selected 
by NIOSH--instead of the DOE--in order to provide a measure of 
independence. There are approximately 120 doctors who have been 
approved by NIOSH for the DOE Physicians Panel. Due to the low rates of 
compensation ($55-60/hour), some physicians with clinical practices 
have withdrawn from participation. Once a Physicians' Panel issues a 
positive determination, DOE is required to provide the claimant with 
assistance in filing their claim with a state workers' compensation 
commission.
    Pursuant to EEOICPA, DOE must direct contractors not to contest the 
state workers' compensation claims, to the extent allowable by law, and 
DOE may not reimburse contractors for legal costs of contesting such 
claims. Practically, this means DOE will instruct its contractors to 
send a letter to the state workers' compensation board indicating that 
they will not contest the claim. However, this doesn't necessarily mean 
that the claim will be paid, because some ``payors'' are not under 
DOE's/contractor's control and are unwilling to pay (e.g., exclusive 
state funds and insurers).
    States and insurance companies are not agreeing to be bound by DOE 
Physician Panel determinations. Although DOE entered into Memorandum of 
Agreements (MOA) with 12 states (AK, CA, CO, ID, IA, KY, NM, NV, OH, 
SC, TN, TX) during 2002, none of these agreements require states to 
accept the findings of a Physicians' Panel. All 12 states reserve the 
right to impose their own provisions of state law rather than abide by 
the findings of DOE or its Physicians' Panel.
    For example, the DOE-Alaska Commission Agreement of 9/13/02 says:

          ``A positive determination pursuant to Part 852 [DOE's Rule] 
        has no effect on the scope of State worker compensation 
        proceedings, the conditions for compensation, or the rights and 
        obligations of the participants in the proceeding; provided 
        that consistent with Subtitle D, such a determination will 
        prevent DOE and may prevent a DOE contractor from contesting an 
        applicant workers compensation claim, and DOE may agree to 
        indemnify a DOE contractor/insurer for State of Alaska workers 
        compensation claims.''

    To get valid claims paid, DOE is counting on its current site 
contractors, many of which are self-insured for workers' compensation, 
to pay the claims and the DOE will reimburse them (using appropriated 
funds). At a number of DOE sites in IA, OH, KY, AK and CO, the DOE has 
not identified a ``willing payor.'' A ``willing payor'' is an entity 
which DOE can meaningfully direct to pay claims after a Physicians 
Panel determines that a claim is work related. DOE's General Counsel 
has indicated that up to 50% of valid claims may not have a ``willing 
payor'' but others within DOE have offered widely varying estimates of 
how many claims lack a willing payor. Nobody knows at which locations 
DOE lacks a willing payor. Indeed, DOE has not even surveyed its 
contracts to determine which ones contain successor liability clauses--
and thus require the existing contractor to pay the claims of former 
contractors.
    Congress can easily assure that these cases are paid promptly. 
DOE's Worker Advocacy Advisory Committee (WAAC) warned the Secretary in 
August of 2001, and again in June of 2002, that the absence of a 
willing payor was a large, unresolved problem which would pose a 
``gross inequity'' to claimants (as we are witnessing today in Alaska).
    On June 27, 2002 WAAC Chairwoman Emily Spieler (Dean of the 
Northeastern University Law School) wrote on behalf of the Committee:

          ``WAAC Members thought that there was no legal impediment to 
        payment of these claims by DOE. But we also think that if DOE 
        is unwilling or unable to pay these claims, it's absolutely 
        essential for DOE to seek additional appropriations or support 
        alternative legislative solutions that will result in payment 
        of these claims without throwing them into the state workers' 
        compensation systems to be litigated. If the latter occurs, 
        insurers and state funds will not be required to waive any 
        technical or other defenses to these claims, and it is highly 
        likely (after considerable administrative expense) that few, if 
        any, of these claims will be paid.''

    The Advisory Committee accurately described the problem that has 
now arisen in Alaska.
    The Committee concluded:

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

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

          ``The issue of mechanisms of payment of claims where there is 
        no current contractor with responsibility for paying a claims 
        remains a concern. We will continue to explore possible 
        remedies with the WAAC, the General Counsel and Congress to 
        correct this inequity.''

    DOE allowed the Advisory Committee's charter to expire 1/1/03. 
Neither DOE nor the Administration has proposed any solutions, despite 
repeated requests from Governors, workers' compensation commissions and 
Members of Congress.
    DOE has received approximately 18,823 claims for assistance as of 
August 29, 2003. In the year since its rule has finalized, DOE has made 
very little progress on its backlog.
    Only 74 (0.3%) have been decided by the Physicians Panel (45 
accepted and 29 rejected) and 132 (0.6%) are in the Physicians Panel 
process. DOE has not even started case development work on 14,434 cases 
(71%). DOE estimates a backlog of 5 years. Others foresee a much longer 
time to process claims. In testimony before the Senate Energy Committee 
in February, Secretary of Energy Spencer Abraham committed to have 100 
claims per week completed by August of 2003. But the DOE failed to meet 
that goal.
    DOE has received a significant amount of funding to run the Workers 
Advocacy Office. The resources have been there, but the ability to get 
the program off the ground is lacking. DOE has also taken the position 
that it will assist claimants only to the point of advising them as to 
the process of filing a claim with the respective State agency. We 
believe that the OWA has been much to timid in its approach to claimant 
assistance and, as a result, many claimants, left to navigate the 
complexities of the various State workers compensation procedures on 
their own will continue to be frustrated in their efforts to receive 
the compensation due to them.
                       speedup claims processing
    There are many possibilities for speeding up claims processing 
including requesting the assistance of the Department of Labor in 
developing claims and using the existing former worker programs to 
assist in developing claims, just to name a few actions.
                             willing payor
    There are several options available to resolve the willing payor 
issues:
    DOE could enter a into cost-reimbursement arrangements with a 
national (or site specific) non-risk bearing Third Party Administrator 
(TPA) to serve as the willing payor where (a) DOE contractors are no 
longer present at DOE sites, (b) where DOE contractors were not self 
insured and an insurance company ``owns'' the claim, or (c) where there 
is an exclusive state fund (OH, NV and WA).
    Claims payments would be subject to appropriations. Levels of 
benefits would be set by state compensation agencies. The TPA would 
assume full liability in lieu of employers, insurers or others who 
could object to a claim. Presumably disability determinations would 
still have to be made by a state compensation panel. The Advisory 
Committee suggested this approach.
    DOE could enter into contracts with exclusive state funds, insurers 
or TPAs to assume payment of claims in each instance where there is no 
willing payor. Ohio's exclusive state fund has made such a proposal.
                future of the doe former worker program
    ``And I think for one time in my life, I believe DOE is trying to 
do something.'' Testimony from Mr. S given at a DOE-sponsored public 
meeting in Las Vegas on February 25, 2000, on the Former Workers 
Program.

    The Former Workers Program (FWP) was created at the Department of 
Energy in 1993 in response to the Congressional passage of Public Law 
102, the Defense Authorization Act of 1993. Section 3162 of this law 
required DOE to evaluate the long-range health conditions of current 
and former employees who, as a result of their employment at DOE sites, 
may be at significant risk for health problems. The key objective has 
been to provide these former workers with medical evaluations to 
determine whether workers have experienced significant risk due to 
workplace exposure to hazards.
    This determination has been made through twelve pilot programs 
established at eleven DOE sites across the country. Initially in 1996, 
six programs received funding to begin the pilot programs; in 1997 four 
additional programs became involved, and since then two more have been 
added as well. These pilot programs use a variety of investigative 
tools to establish whether workers face significant health risk 
including: risk assessment, worker history interviews and medical 
screening tests.
    These programs have documented several significant findings.

   Sixty percent (60%) of the participants have significant 
        health problems that can be ascribed to their work at the DOE 
        sites.
   Workers have experienced a high prevalence of exposure to 
        multiple hazards while working at DOE sites.
   The FWP's have comprehensively summarized work hazards for 
        site worker populations.
   It is possible to locate and contact many of the former 
        workers from these DOE sites.
   A significant proportion of the workers contacted want to 
        participate in the program.
   Participants in the program have expressed a very high 
        degree of satisfaction with the services provided by the 
        independent former workers program.
   The approach to organizing these programs is highly cost 
        effective in comparison to other medical programs within the 
        DOE complex.

    When the EEOICPA was being implemented the DOE Office of Worker 
Advocacy and the Department of Labor stressed the importance of these 
programs as a crucial resource to help workers with their claims. In 
fact, item 15 on the DOE form, Request for Review by Physician Panel 
(DOE Form F350.3), lists each of the FWPs and asks applicants to check 
off if they have participated in one of these.
    We believe that the former worker programs could significantly aid 
in implementation of Subtitle D by providing exposure assessments and 
diagnostic testing for workers seeking compensation benefits. But 
rather than take advantage of this potential method for speeding claims 
processing, DOE has moved in the opposite direction. In a Guidance to 
the FWPs dated October 21, 2003 DOE proposed to phase out all but three 
of these programs and replace them with an unspecified new activity 
using a 1-800 call in process.
    The sites to be phased out include Amchitka Island, Hanford, Idaho 
National Laboratory, Iowa Army Ammunition Plant, Los Alamos National 
Laboratory, Oak Ridge Construction Workers, Rocky Flats and Savannah 
River. These sites represent the bulk of workers potentially affected 
by this Act. The proposed action of DOE makes absolutely no sense. 
These former worker programs, which operate on a relatively modest 
budget and have medical and exposure data on tens of thousands of 
workers, will be forced to destroy this data and disband the 
institutional knowledge of worker activity and exposure that has been 
created with great difficulty..
    Most important, thousands of workers are still waiting to be 
examined at the very sites the DOE proposes to abandon. As an example, 
at the Savannah River site, it took one of the two programs operating 
there 5 years to get the DOE to provide a data base of 13,000 eligible 
workers. This list of former workers only became available in a usable 
format this summer. Why the list was withheld for all of these years is 
inexplicable. Regardless, these workers should have a right to be 
examined through the former workers program now, but that will not be 
possible under this shift in policy.
    We do not understand the underlying motivations of DOE in this 
case, since the agency is unwilling to explain its motivation to the 
organizations conducting the former worker program. The proposed phase 
out, at best, reflects a failure of coordination between two different 
program offices under the jurisdiction of the Assistant Secretary for 
Environment, Health and Safety.
    At worst, it is another example of DOE's refusal to carry through 
its responsibilities to its work force. Given the massive problems that 
DOE currently has in carrying out its responsibilities under this 
compensation program, the decision to stop its one successful activity 
defies comprehension. This proposed phase out of the successful FWP 
programs is truly an example that good deeds seldom go unpunished. We 
urge the Committee to oppose the disbanding of these programs in the 
strongest terms.
                               conclusion
    Congress has made a firm promise that each nuclear worker with 
radiation cancer will receive compensation. That promise must be kept. 
We must also work to fix the problems with the DOE program, so those 
with other work-related illnesses caused by toxins at the DOE complex 
will receive workers' compensation payments.
    Thank you.

    Senator Bunning. Thank you very much for your testimony.
    I have so many questions, but I will start on the willing 
payor portion. At sites in Iowa, Ohio, Kentucky, Arkansas, and 
Colorado, DOE has not, I say has not, identified a willing 
payor. A willing payor is a title which DOE can direct the 
payment claim after going through all the process, the 2 years 
sometimes that it takes finally to get--up to 50 percent of the 
valid claims may not have a willing payor at DOE sites.
    Now, this is highlighted in the GAO report. At Paducah, 
Leon, even after the fact that they have gone through, even 
after 83 people have gone through the claim and 82 have been 
refused and one has been found eligible for benefits, that 
person has not been paid. We have to have some solution to 
that, and we would like your suggestions on how we can get that 
done, because we are going to have to do it by law. DOE is 
going to sit on their you know what, their hands, until we do 
it by implementing some kind of law that requires either the 
Department of Labor or someone else to do it, because we are 
not getting any cooperation between the DOE and the workers 
comp people.
    Mr. Owens. I think, Senator Bunning, the first thing that 
Congress should consider is to ensure that there is a uniform 
level of compensation, and that could be based off of the 
Federal Employees Compensation Act, where you have certain wage 
replacement for loss of use of function.
    The counterargument from some might be that you are in a 
way federalizing State workers compensation. We disagree with 
that argument. From the standpoint of this program, subtitle B, 
you have an entitlement program where appropriations were made 
by the Congress and individuals receive compensation based from 
that. So in no way do we feel that by having a uniform 
compensation mechanism that this Congress would be federalizing 
State workers compensation.
    Senator Bunning. Mr. Miller, do you agree that that is one 
of the ways, or Mr. Elisburg?
    Mr. Elisburg. Yes, sure. You could have the Department of 
Labor do it. You do not necessarily have to use the FECA system 
as much as you could set up a fund. You could set up something 
similar to subtitle D. There are any number of ways, and simply 
have some form of Federal payment.
    Senator Bunning. We thought we had done that.
    Mr. Elisburg. I think you did. I think all you thought was 
the States were going to be----
    Senator Bunning. You know, what we had to do was carry it 
across to the House of Representatives in person to the Speaker 
to get what we got done done. And we thought we had set up that 
kind of a program. Obviously, the Department of Energy does not 
believe that that is that kind of a program.
    Mr. Elisburg. I think that is right, and I think it goes to 
the issue that in fact these contractors are creates of the 
Federal Government. All the money comes from the Federal 
Government and whatever payment that is going to go out is a 
Federal payment in one fashion or another. It never comes out 
of anybody else's pocket.
    Senator Bunning. Mr. Miller.
    Mr. Miller. I think at the end of the day it is a question 
of money and where will it come from and who is on the hook for 
it. From our perspective, whether, as Don Elisburg said, it is 
FECA, which either provides for 66\2/3\ of your average weekly 
wage, which is what you would get at the State level if you 
were getting paid through State worker compensation, or some 
lump sum settlement if it is a permanent disability, the 
question then becomes how would you fund those benefit streams.
    Today, as Don Elisburg and others have said, if you had a 
self-insured contractor, like at Paducah you have Bechtel-
Jacobs and they are self-insured for worker compensation at 
Paducah, and you can direct Bechtel-Jacobs using the energy and 
water appropriations that they are given each year to carry out 
their functions to pay claims with.
    The question arises that if you then move that same 
function and the Labor Department is evaluating disability and 
they are setting some benefit level, whether it be FECA or some 
lump sum alternative, and you still have to figure out, do you 
want that to be an entitlement spending, direct spending like 
we went through 3 years ago, as you talked about--and I 
remember working vividly with you and Senator McConnell and 
others trying to get that very ball over the hump--or do you do 
it subject to appropriations?
    The Federal Employee Compensation Act today operates 
subject to appropriations. Every Federal agency--the Department 
of Treasury, the Department of Homeland Security, the 
Department of Defense civilian employees--all reimburse the 
Department of Labor's fund on an annual basis for their 
outlays. So that each agency's budget includes a chunk to repay 
under FECA.
    So you could have the Department of Energy with a special 
line item replenishing the fund.
    Senator Bunning. No, I do not want the Department of Energy 
involved in it. I am going to get it out of there as soon as I 
can.
    I will come back to you, Dr. Burton. But Senator Murkowski, 
go ahead.
    Senator Murkowski. Thank you, Mr. Chairman, and I have a 
whole series of questions that I will submit for the 
individuals so they can respond in writing.
    But just generally and kind of focusing on the GAO's review 
of the claims, we have heard that it does not work. I think 
certainly Senator Bunning and myself are in total agreement 
that it is not working, we have got to figure out a way to fix 
it. Is it the structural flaws in the system? Is it management 
issues? Is it--do we need more specialized expertise? Is it all 
just a question of funding? If you throw enough money at it, do 
we fix it? Or is it structurally flawed to the point where it 
is just not going to work?
    Mr. Michaels, I understand that when this act was first 
passed you had supported DOE implementing subtitle D and now I 
understand that you have changed your mind. You folks as well 
as anybody out there understand what has happened and I would 
like to think can offer some substantive input in terms of what 
do we do, how do we deal with Mrs. Carlson's problem.
    So have at it. Mr. Michaels, do you want to comment first?
    Dr. Michaels. Thank you, Senator Murkowski. You are 
absolutely right, I was a strong supporter of this and believe 
it could have worked. But I think the currency has been spent 
and it would be very difficult to reconstruct this program at 
the Energy Department.
    I think probably what needs to be done is we really need to 
sit down. I think there are a number of really important 
thinkers in workers compensation. I would actually--probably 
first is reconvene the advisory board that DOE disbanded and 
begin to work through this and say--I would actually probably 
suggest that in the short run if legislation to shift it--I 
would support first shifting this to the Labor Department in 
the short run, just for administrative purposes. I realize that 
does not solve the issues that Mr. Miller raised around, and I 
think John Burton raised as well, around disability 
evaluations, a number of different issues.
    But once we essentially move the program to get people 
through the system, I think we should sit down and really think 
through what is the best way to do this. I think it should be 
probably a program that looks very much like the Federal 
Employee Compensation Act, which Mr. Owens suggested, because 
in fact these are close to Federal workers. While these are 
State workers, they are covered by State systems, the reality 
is they are working under Federal rules. The Department of 
Energy regulates all these facilities.
    We the Department of Energy--I was part of the Department 
of Energy--sets the wage rate, sets the conditions. When the 
contractor changes in one of these facilities, the top 12 
people change; the workers remain the same. It is not Union 
Carbide or Martin Marietta or Bechtel. These are people who are 
working for the U.S. Government, but just paid through a 
contractor mechanism.
    In some ways the easiest thing might be to say let us treat 
them in terms of benefit levels like Federal workers. I think 
that would be a big step forward.
    Senator Murkowski. Mr. Elisburg.
    Mr. Elisburg. Yes, Senator. With respect to Mrs. Carlson's 
claim, which has been publicized, it seems to me that this is a 
dramatic example of the Department of Energy walking away from 
its responsibilities, and there is no two ways about it. They 
led this woman along, they encouraged the claim, and then they 
dropped her.
    With respect to what is going on in Alaska, without getting 
into all the details of the litigation, it has been a massive 
attack on this program by some contractors and the insurance 
folks in Alaska, for reasons that are unclear since it will 
never be any of their money. It will in fact be the Department 
of Energy's money.
    It seems to me the Department of Energy ought to be up 
there up front defending its physicians panel determination. It 
ought to be defending the scope of the statute. it ought to be 
defending all of those basic issues which go to whether or not 
this is an appropriate Federal program.
    One of the advisory committee recommendations, which might 
or might not work in a place like Alaska, was where you cannot 
find a contractor the whole point is to have someone who you 
can pay money to to run it through the system. The advisory 
committee suggested looking at creating a third party 
administrator, appoint them as the contractor in fact to deal 
with this claim, work an agreement with the State to accept 
them as the contractor that will supervise the payments, the 
medical payments--in a death case there is no medical 
payments--supervise the payments in this case, and in effect 
they are a contractor of record.
    That provision, that was promoted rather heavily with the 
Department of Energy and we never did understand why it was not 
accepted. In fact, it was pushed by the contractor community 
that was a part of our advisory committee.
    So that is just a few notions. But to simply stand by and 
say, well, we sent her there and there is nothing we can do I 
would say is not the appropriate response.
    Senator Murkowski. I appreciate that. Thank you.
    Mr. Miller.
    Mr. Miller. I would just like to underscore one additional 
point, which is the Department of Labor's program today is, 
quote, ``non-adversarial.'' The Energy Department does not 
intervene as an adverse party with a case it does not agree 
with. The contractors cannot intervene. There is no secret hand 
reaching into the hearing room or to the claims examiners when 
they evaluate the claim.
    In effect, the Labor Department acts as the insurance 
company for the U.S. Government. They are the ones that 
evaluate whether it meets the statutory criteria. When you have 
a non-adversarial program, you have no lawyers, you have no 
litigation, the claim is either accepted or not, and you have 
an appeals process within, and if you want to the Federal 
courts.
    We think that a non-adversarial structure is appropriate 
where you have claims, just as you do with other claims 
programs, for example, which cover the Radiation Exposure 
Compensation Act for uranium miners. Again, it is a claims 
program, and if this is structured as a claims program it 
should not be adversarial in its ultimate outcome.
    Senator Bunning. Thank you.
    Senator Murkowski. Thank you.
    Senator Bunning. I want to go back to some of the things 
that you have said, because Senator Bingaman and I put forth 
one suggestion for fixing the willing payor problem in 
legislation last Congress. In the legislation, workers comp for 
DOE employees was federalized--a bunch of you have suggested 
that--to avoid the willing payor issue.
    Is there anyone here that would think that that is a bad 
idea? Go right ahead.
    Mr. Robertson. Being with GAO, I have to be a little 
cautious.
    [Laughter.]
    Senator Bunning. Well, speak up.
    Mr. Robertson. Just to remind you, our work at DOE is 
ongoing and we have just started the work at DOL. So, we are 
not in a position to make a commitment on that.
    Senator Bunning. I understand GAO's position.
    Mr. Robertson. Could I add another point?
    Senator Bunning. Go right ahead.
    Mr. Robertson. We have been talking about a number of 
alternatives, some of which are dramatically different to the 
program that is in place now. I would just also say that we 
ought to look for what is happening in the real short run, 
which is DOE still has the program. I would just like to 
reiterate what Senator Talent talked about earlier--and I think 
you did, too--and that is, in the mean time while we are 
thinking about all these other options and alternatives, that 
there is some mechanism put in place to hold DOE accountable 
for implementing the program that it was given to implement.
    Senator Bunning. Well, there are a lot of things we can do. 
One is to cut off their money and make them a nonexistent 
Department if they do things like that. But those are radical 
things and a lot of us do not like to do those kind of things.
    But to stimulate their participation, their active positive 
participation in this program, we have to do something 
different than what we are doing, because they are obviously 
adversaries of those filing claims and that is not the way it 
was set up.
    GAO has indicated that the Department of Energy does not 
have an adequate computer system in place to track the status 
of claims and the reason for determining a claim ineligible, a 
claimant ineligible. How does the DOE computer system compare 
with claims processing operations you have evaluated in other 
agencies? Is the DOE program vulnerable to legal challenges 
because it has failed to ensure consistency in processing its 
claims?
    Mr. Robertson. Here is what has happened with the system 
they had in place, and it is one of the reasons, frankly, why 
we cut off our data analysis at June 2003. We had done a data 
reliability test on the system that DOE had in place at that 
time. In July they made some changes to that system that were 
supposed to correct some of the problems that we identified and 
that you alluded to. We have not gone back and seen whether,in 
fact, they have been corrected. So we will be doing that as 
part of our ongoing review.
    Senator Bunning. Given the complexities involved with the 
claims that have been filed, do you think that, like the 
Department of--and I would like to hear from Dr. Burton on 
this--that the Department of Labor, assigned the same 
responsibilities, would have encountered similar problems that 
DOE has encountered? You seem to think that the Department of 
Labor is not a good place to go.
    Dr. Burton. Well, I think the Department of Labor may be 
better than the Department of Energy, but I think we need to be 
realistic about what you are going to gain by shifting this 
from DOE to Department of Labor. For example, the Department of 
Labor has some types of cases which are readily--can be readily 
processed.
    But there are a set of claims that the Department of Labor 
currently has responsibility for that require dose 
reconstructions from NIOSH, and those have not been processed 
very rapidly. Now, it is not the Department of Labor's fault. 
The point is there is nothing inherent about getting claims-
handling at the Department of Labor that is going to make 
things go faster. I think if you simply transferred over the 
title D as it now exists you are going to have pretty much the 
same set of obstacles to processing these claims no matter who 
is handling them.
    Senator Bunning. So you would have to change the way that 
the claimants file and process the claims?
    Dr. Burton. Well, let me make clear again. I think probably 
if it was a Department of Energy transfer to the Department of 
Labor things are going to go faster. Certainly the experience 
we had on our committee was frustration about the fact that 
things were not being done very efficiently or effectively at 
the Department of Energy.
    But I think there is only a limited amount of gain you are 
going to get by switching it to Department of Labor, unless you 
fundamentally change the program. That is why I have suggested, 
for various reasons, and I think based on the experience of the 
last couple of years, several of us have come around, Dr. 
Michaels and myself included, to the notion that the whole 
scheme that is in title D of meshing State and Federal programs 
is not going to work.
    The only thing I would differ from what other persons on 
the panel is Mr. Owens seemed to be reticent to call that 
federalization of title D. I would call a spade a spade. Let us 
federalize title D, get the States out of it.
    Senator Bunning. We tried. We put--Senator Bingaman and I 
tried very hard to do that.
    Dr. Burton. Well, obviously I am not the politician here. I 
am simply the person trying to--from my standpoint I do not 
think the mixed State-Federal program is going to work, no 
matter who is running it, and therefore I think we need to drop 
back and redo it. I realize that that may be difficult to do, 
particularly between now and the end of this session.
    Senator Bunning. Mr. Owens--well, we are not going to be 
able to do it between now and the end of the session. Maybe 
next year some time.
    Mr. Owens.
    Mr. Owens. Senator Bunning, I respectfully disagree with 
Dr. Burton, from the standpoint of not gaining much if we 
transfer the program from the Department of Energy to the 
Department of Labor. I think there are two issues. One is 
transparency, the other is credibility. By transparency what I 
mean is a full understanding by the claimants, by these sick 
workers, by these widows, of what the program intent, what its 
intention is.
    Credibility. As of right now there is very little 
credibility within the DOE complex by any of these workers with 
anything that DOE does. That is a problem that will continue to 
exist, notwithstanding the adversarial process that they 
continue to bring to the table. So that would be an immediate 
benefit.
    We do not want to see sick workers not file claims because 
of a process that is so convoluted that, number one, they are 
going to die before they even see any type of realization of 
their claim even being processed, let alone receive any 
compensation. So those are the immediate benefits that I see.
    Senator Bunning. Mr. Elisburg, go ahead.
    Mr. Elisburg. Mr. Chairman, two points I would like to make 
about your question. The first is that even if you were to send 
this to the Department of Labor, where I think you would have 
far more efficiency and movement, it is clear that, because of 
this so-called willing payor issue, there needs to be made 
clear--that is, if you are still going back to these 
contractors to process it--that in the absence of a contractor 
the Department of Energy will assume responsibility for payment 
or something quite that simple to fix this willing payor in 
language.
    That is one way to get out from under that issue, so that 
there is somebody out there.
    [Room lights flicker.]
    Senator Bunning. I think they are trying to tell us 
something.
    Mr. Elisburg. The second point of this, having listened to 
the testimony this morning, is--and it goes to I think Leon's 
discussion of perhaps credibility--it seems very clear that the 
Department of Labor in this program has been a willing payor 
and the Department of Energy has not been a willing payor, and 
I think that goes to the heart of how do you make this program 
work.
    Mr. Miller. If I could just underscore one point, Senator.
    Senator Bunning. Make it quick.
    Mr. Miller. The only point is that the DOE serving as a 
``willing payor,'' quote unquote, raises a very profound 
question: Can they actually manage that? If they cannot even 
manage to move their claims, can they possibly manage the 
complexity of being the willing payor?
    Senator Bunning. Okay. Those of you who wish to submit 
testimony or questions for the record should do so by the end 
of the day on Monday, November 24. We also may submit questions 
on behalf of the committee to each and every one of you that we 
have not asked today.
    I thank you for your testimony and the committee is 
adjourned.
    [Whereupon, at 12:14 p.m., the hearing was adjourned.]
                               APPENDIXES

                              ----------                              

                               Appendix I

                   Responses to Additional Questions

                              ----------                              

                              Department of Energy,
               Congressional and Intergovernmental Affairs,
                                  Washington, DC, January 20, 2004.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.

    Dear Mr. Chairman: On November 21, 2003, Robert G. Card, Under 
Secretary of Energy, testified regarding the status of implementation 
of the Energy Employees Occupational Illness Compensation Program.
    Enclosed are the answers to 21 questions submitted by Senators 
Murkowski, Schumer, and Campbell to complete the hearing record.
    If we can be of further assistance, please have your staff contact 
our Congressional Hearing Coordinator, Lillian Owen, at (202) 586-2031.

            Sincerely,
                                          Rick A. Dearborn,
                                               Assistant Secretary.
[Enclosures]

             Responses to Questions From Senator Murkowski

    Question 1. I understood you to state at the November 21, 2003 
hearing that the Department of Energy (DOE) does not believe that 
Congress intended in the Energy Employees Occupational Illness 
Compensation Program (EEOICPA) that the DOE: i) defend findings by DOE 
Physician Panels when they are challenged by counsel for DOE 
contractors or insurance companies; or ii) affirmatively seek to find a 
willing payor for claims by Alaskans or citizens of other states with 
nuclear facilities:

    a) Is my understanding correct? Please provide a detailed narrative 
explaining the legal, statutory interpretation or other bases for DOE's 
answer to these questions.

    Answer. In accordance with EEOICPA Part D, DOE ``may to the extent 
permitted by law, direct the Department of Energy contractor who 
employed the applicant not to contest such claim or such award.'' DOE 
issues such directives to the extent permitted by law, and expects 
contractors subject to such direction not to challenge Physician Panel 
determinations.

    However, with respect to contractors or insurance companies where 
DOE has no legal authority to provide direction, DOE has no legal 
ability to prevent the contractor or insurance company from challenging 
Physician Panel findings. In those situations, DOE only can provide 
assistance to the applicant by providing the applicants with physician 
panel determinations on whether the claimed condition(s) were related 
to work at a DOE facility. The ``assistance'' provided by DOE, in 
accordance with the statute, is to assist the employee with obtaining 
evidence of injury or illness, and to provide to the employee the 
opinion of a Physicians Panel. The process for adjudicating a claim for 
such an employee takes place in a state system, outside DOE control.

    With respect to so-called ``willing payors,'' DOE does 
affirmatively seek to find a willing payor for all claims. If, in 
accordance with the statute, DOE can legally order a contractor not to 
contest a claim, it does so. In other cases, state law may dictate that 
workers' compensation claims be paid by a state fund or insurance 
coverage. DOE has addressed this very complex willing payor issue on a 
case by case basis because, in dealing with scores of DOE sites, 
hundreds of contractors, differing state laws, and covering 50 years, 
the answers vary widely. Because of the complexity and importance of 
this issue, DOE has taken the initiative to review and identify which 
contractors at the major DOE sites where most of the applications are 
being filed are subject to a directive by DOE not to contest workers' 
compensation claims. Results of this review should help clarify the 
status of the contractual relationships between contract employees, 
Department of Energy contractors, and the Department of Energy.
    With respect to the Amchitka Project in Alaska, DOE has not found a 
legal way to order former Amchitka subcontractors to not contest 
workers' compensation claims. In those cases, those workers will have 
to depend on the Alaska State workers' compensation process to identify 
payors, such as commercial insurance companies. With respect to cases 
involving the four major DOE contractors at Amchitka from 1965-1972, 
the responsibility for satisfying workers' compensation claims by 
employees of those contractors has contractually passed through the 
years to a current DOE contractor. The study discussed above or the 
first case presented in the Alaska workers' compensation system will 
confirm these payor relationships.

    Question 2. Please explain why DOE terminated the Worker Advocacy 
Advisory Committee.
    a) I understand DOE indicated it plans to reconstitute the 
Committee. Is this correct? If not, why not? If yes, when does DOE plan 
to have the reconstituted Committee operating?

    Answer. The Federal Advisory Committee Act requires federal 
agencies to set an expiration date for advisory committees, typically 
two years from the date the charter is approved. The expiration date 
for the Worker Advocacy Advisory Committee was January 2, 2003. The 
committee's charter was to advise the Department on the establishment 
of the Office of Worker Advocacy (OWA). By January 2003, the Office of 
Worker Advocacy was well underway, and the Department determined that 
the committee had fulfilled its charter. So, the committee's charter 
was allowed to expire as scheduled, on January 2, 2003.
    OWA recognizes the value of advisory committees, and we are in the 
process of forming a new committee, the Workers' Compensation 
Assistance Advisory Committee. DOE will work with this new Advisory 
Committee to develop recommendations for moving forward. We believe the 
new committee should be up and running in March 2004.

    Question 3. On June 27, 2002, the Worker Advocacy Advisory 
Committee sent a letter to DOE which, among other things noted that if, 
``DOE is unwilling or unable to pay these claims, it is absolutely 
essential for DOE to seek additional appropriations or support 
alternative legislative solutions that will result in payment of these 
claims without throwing them into the state workers' compensation 
systems to be litigated.'' On August 9, 2002, DOE responded stating, in 
part:

    ``The issue of mechanisms of payment of claims where there is no 
current contractor with responsibility for paying a claim remains a 
concern. We will continue to explore possible remedies with the WAAC, 
the General Counsel and Congress to correct this inequity.''

    a) Has DOE made any proposals to Congress to address and remedy the 
willing payor problem since this letter was sent? If not, why not? 
Please provide a detailed answer to this question including cites to 
any legal authority on which DOE may rely to answer this question.

    b) Does DOE plan to provide Congress with a comprehensive plan to 
address and remedy the willing payor issue? If yes, when?

    Answer. a) DOE recognizes Congress's concern that under the terms 
of EEOICPA Part D, DOE is not permitted to direct certain contractors 
to not contest workers' compensation claims of their employees, nor is 
DOE allowed to overrule State workers compensation laws, nor is it 
allowed to pay claims independently. DOE representatives have had 
numerous discussions with Congressional staff members and stakeholder 
groups about this issue. DOE is working through the complexity of the 
legal and regulatory frameworks, and the various stakeholders' goals in 
relation to the States' workers' compensation programs and the legal 
relationships between the Department and its contractors.

    b) DOE is developing a plan to eliminate the entire backlog of Part 
D EEOICPA cases.

    It should be noted that the lack of a ``willing payor,'' as this 
term is normally understood in the EEOICPA Part D context, does not 
mean the Part D applicant cannot receive workers' compensation. It 
simply means DOE cannot direct the contractor employer not to contest 
the claim. Applicants can still apply to the Department's Part D 
program, still make application for workers' compensation through their 
State agencies, and if they are entitled to benefits under State law, 
they will receive those benefits.

    Question 4. At the hearing, there was extended discussion of DOE's 
claims processing record under Subpart D of EEOICPA. Please provide a 
detailed explanation of DOE's commitment concerning claims processing. 
Please include the following information in your answer:

    a) the number of claims DOE will process per month beginning 
December 2003 and extending through the time DOE believes it will 
eliminate the claims backlog.

          i) based on DOE's experience to date, please include in this 
        answer, on a monthly basis, the number of claims DOE expects it 
        will reject because the claimants are not eligible; and
          ii) the number of claims DOE will process and provide to the 
        Physician Panels.

    b) Please state the funding level DOE believes will be necessary to 
achieve the claims processing level DOE plans to achieve in FY 2004 and 
2005.

    Answer. The Department is developing a plan to eliminate the entire 
backlog of Part D EEOICPA cases currently on file with DOE.
    With respect to cases, DOE is on track with its interim goal of 
processing 100 Part D cases per week up to the Physician Panels. DOE 
has entered into discussion with representatives from the medical 
community regarding their views on changes required to increase output 
by the Physician Panels (the backlog awaiting physician review is 
growing at approximately 80 cases per week while the physicians are 
processing 17 to 20 cases per week). The medical community has 
indicated that process improvements alone will not achieve the output 
required to eliminate the current and growing backlog, and must also 
include additional funding, as will be requested in the FY04 
reprogramming request and the FY05 Budget Request.
    With respect to ineligible cases, DOE conducts an initial review of 
every case it receives to determine eligibility under Part D of 
EEOICPA. As a result, DOE has already identified most of the ineligible 
applications currently filed. As shown on our web site (http://
www.eh.doe.gov/advocacy), as of January 2, 2004, DOE has received 
21,861 Part D applications of which 1,110 have been found ineligible, 
or 5 percent. Assuming that 5 percent of all new cases are found 
ineligible and that applications continue to arrive at 130 per week, 
approximately 6 to 7 applications per week might be found ineligible.
    The funding levels necessary to implement the plan DOE is 
developing to eliminate the entire backlog will be transmitted to 
Congress promptly.

    Question 5. Please provide an explanation of DOE's position on the 
Grassley-Murkowski amendment. If DOE supports the amendment, please 
provide a detailed narrative explanation of the reasons for DOE's 
support including any legal citation supporting DOE's position.
    a) If DOE opposes the amendment, please provide a detailed 
narrative explanation of the reasons why, including any legal citation 
supporting DOE's position.
    Answer. Based on the latest internal process reviews of the EEOICPA 
Part D process, DOE believes the Grassley-Murkowski amendment, in the 
form that amendment was passed by the Senate several months ago, would 
not improve the efficiency of processing Part D applications.
    The amendment did not address the critical bottleneck at the 
Physicians' Panels, or otherwise reform the requirements and processes 
for Part D applications. Moreover, the amendment bifurcated between two 
agencies the processing of application up to the Physician panels. This 
would create new/uncharted coordination issues and eliminate clear 
demarcations for responsibility.

    Question 6. Did the DOE have any contact with any Member of 
Congress or their staffs or the staff of any Congressional Committees 
concerning the Grassley-Murkowski amendment? By contact, I mean 
communications of any kind including oral, written, telephonic, e-mail 
or other electronic form of communications. If yes, please provide the 
following information:

          a) individuals in DOE present or participating in each 
        communication
          b) date of each communication
          c) name and position of each individual in Congress with whom 
        a communication took place
          d) name of individual(s) who initiated each communication
          e) summary of the substance of each communication
          f) if the communication was in written or electronic form, a 
        copy of the communication.

    Answer. Certain DOE employees with responsibility for communicating 
with Congress on DOE-related matters had contact with Members of 
Congress or their staffs concerning the Grassley-Murkowski EEOICPA 
amendment that the Senate passed as an amendment to H.R. 2754, the 
Fiscal Year 2004 Energy and Water Development Appropriations bill. 
Deputy Secretary McSlarrow had a telephone conversation with Senator 
Grassley on this subject on or about October 27, 2003. Various 
employees in DOE's Office of Congressional and Intergovernmental 
Affairs communicated on this subject with Members of Congress or staff 
from the offices of Sen. Murkowski, Sen. Nickles, Sen. Breaux, the 
House Energy and Water Development Appropriations Subcommittee, and the 
Senate Energy and Water Development Appropriations Subcommittee.
    In general, during these communications DOE stated its position 
that it did not support the Grassley-Murkowski amendment and expressed 
its belief that the amendment would not solve the problems that exist 
with the current EEOICPA Part D program. DOE does not have records 
identifying the dates that these communications occurred. DOE believes 
one or more of those communications may have been in written or 
electronic form, but does not possess copies or records of such 
communications.

    Question 7. Does DOE have in its possession any document in 
electronic or any other form concerning the Grassley-Murkowski 
amendment? If yes, please provide a copy of the document. This question 
includes documents generated by DOE or received by DOE from any entity 
outside DOE.

    Answer. DOE staff prepared a brief legislative analysis of the 
Grassley-Murkowski amendment. The text of that document is as follows:
    ``The Grassley Amendment, in effect, transfers one part of DOE's 
process to the DOL, namely the case assembly. DOE would retain the 
responsibility to receive applications (which DOE does jointly with DOL 
for both subparts B and D), to collect worker employment/exposure/
medical records from the field, to manage the physicians panel process, 
and to order contractors where DOE legally can to not contest workers' 
compensation claims.

    ``DOE does not support the amendment for the following reasons:

   The Amendment appears to have no benefit to the subpart D 
        program applicant.
   DOE has submitted a reprogramming request to accelerate 
        subpart D case production.''

    DOE received a copy of OMB's letter to the Chairman of the 
Committee on Appropriations of the U.S. House of Representatives, dated 
October 16, 2003, in which the Administration stated its position on 
the Grassley-Murkowski amendment. This letter states:

          ``The Administration would strongly object if the conference 
        report included a provision in the Senate bill that would 
        transfer certain duties under Subtitle D of the Energy 
        Employees Occupational Illness Compensation Act from the DOE to 
        the Department of Labor. The Subtitle D program should work to 
        help beneficiaries but the provision would create an unworkable 
        and overly complex administration structure that may detract 
        from the program's service delivery. Further, the provision to 
        transfer $7.5 million from this activity (a 47-percent 
        reduction) to the National Institute of Occupational Safety and 
        Health to conduct epidemiological research would undermine 
        DOE's efforts to expedite the backlog of unprocessed claims.''

    Question 8. It is my understanding that DOE has hired Scientific 
Engineering Associates (SEA) to design, implement and manage DOE's 
claims processing under Subpart D of the EEOICPA. Is this correct?

    a) If yes, how many SEA personnel will be involved in FY 2004 and 
2005?

    b) Please provide the total funds paid SEA for all their services 
for DOE in managing the DOE EEOICPA Subpart D claims processing in FY 
2001, 2002, and 2003. What is the total funding DOE plans to give SEA 
for their work on Subpart D of EEOICPA in FY 2004 and 2005?

    c) How many DOE/federal personnel were involved in the EEOICPA 
Subpart D claims processing effort in FY 2001, 2002, and 2003? How many 
DOE/federal personnel will be involved in FY 2004 and 2005?

    Answer. DOE has entered into an Interagency Agreement with the 
Department of the Navy to provide support for EEOICPA activities. SEA 
is the Navy's contractor. The Interagency Agreement expires at the end 
of calendar year 2004; as a result, DOE cannot project whether SEA will 
continue to perform work for DOE beyond that date. Under current budget 
plans, SEA employs approximately 110 personnel on this project, which 
could double if the reprogramming request currently being prepared by 
DOE is approved.
    Prior year funding to the Navy for this work was as follows:

                            FY 2001--$0
                            FY 2002--$3.6 million
                            FY 2003--$8.1 million

    Under the current budget and with the FY04 reprogramming request, 
DOE expects to provide $11 million in funding for SEA in FY 2004.
    DOE Federal staff involved in EEOICPA efforts started with one 
Federal staff member in FY 2001. Currently, the DOE Office of Worker 
Advocacy consists of 9 Federal staff. If the FY 2004 reprogramming 
request that DOE is developing is approved and anticipated FY 2005 
budgets are achieved, DOE expects to add 3 to 12 additional Federal 
staff to oversee and effectively manage the program.

    Question 9. As DOE noted during the hearing, there are presently no 
willing payors in Alaska. How does DOE plan to address this issue and 
ensure that Alaskans found eligible for compensation by Physician 
Panels are provided with compensation? Please include all legal 
citations, statutory interpretation and any other bases that support 
DOE's response to this question.
    a) Does DOE believe that the EEOICPA provides it with the authority 
to compensate Alaskans who receive positive findings from Physician 
Panels? Please include all legal citations, statutory interpretation 
and any other bases that support DOE's response to this question.

          i) If not, does DOE have any proposal about how to address 
        the willing payor issue?

    Answer. The EEOICPA statute does not authorize DOE to pay claims 
directly. However, the statue does state that DOE ``may to the extent 
permitted by law, direct the Department of Energy contractor who 
employed the applicant not to contest such claim or such award.''
    With respect to contractors or insurance companies where DOE has no 
legal authority to provide direction, DOE has no legal ability to 
prevent the contractor or insurance company from challenging Physician 
Panel findings. In those situations, DOE only can provide assistance to 
the applicant by providing the applicants with physician panel 
determinations on whether the claimed condition(s) were related to work 
at a DOE facility. The ``assistance'' provided by DOE, in accordance 
with the statute, is to assist the employee with obtaining evidence of 
injury or illness, and to provide to the employee the opinion of a 
Physicians Panel. The claim adjudication process takes place in a State 
workers compensation system, outside DOE control.
    With respect to so-called ``willing payors,'' DOE does 
affirmatively seek to find a willing payor for all claims. If, in 
accordance with the statute, DOE can legally order a contractor not to 
contest a claim, it does so. In other cases, State law may dictate that 
workers' compensation claims be paid by a State fund or insurance 
coverage. DOE has addressed this very complex willing payor issue on a 
case by case basis because, in dealing with scores of DOE sites, 
hundreds of contractors, differing state laws, and covering 50 years, 
the answers vary widely. Because of the complexity and importance of 
this issue, DOE has taken the initiative to review the willing payor 
issue at the major DOE sites where most of the applications are being 
filed.

    Question 10. Until May 2003, in response to questions from members 
of Congress (Senator Bunning and Congressmen Turner and Whitfield), DOE 
told Congress they did not need additional funds to implement Subpart D 
of the EEOICPA. What was the basis for this position?

    a) Please explain why DOE has changed its position and asked for 
more funds to implement Subpart D.

    b) When did this change in position occur?

    Answer. Around the time that EEOICPA was passed in 2000, and, given 
the complexity of the process mandated in the authorizing legislation 
and the expected complexity of the physician panel reviews to be 
conducted, the Department of Energy was planning on ten years to 
completely review all applications. However, as the number of 
applications has more than tripled original expectations, and as it has 
become clear how great the applicants' immediate need for this data is 
to effectively pursue State workers' compensation claims, the 
Administration has implemented specific reforms such as budget 
reprogramming and process improvements and is developing a 
comprehensive three-year program to completely eliminate the backlog of 
applications. The summer of 2003 reprogramming request provided needed 
resources to match dramatic increases in applications relative to 
initial expectations.

    Question 11. During briefings for members of Congress and their 
staffs Assistant Secretary Cook stated that DOE was working to ``reach 
out and touch'' its contractors and other entities to assure that there 
would be a willing payor for valid claims. Please provide a detailed 
review of specific actions taken by DOE to assure claimants in Alaska 
and other states that there will be willing payors for claimants who 
are found eligible for compensation.
    Answer. DOE does affirmatively seek to find a willing payor for all 
claims. If, in accordance with the statute, DOE can legally order a 
contractor not to contest a claim, it does so. In other cases, state 
law may dictate that workers' compensation claims be paid by a state 
fund or insurance coverage. DOE has addressed this very complex willing 
payor issue on a case by case basis because, in dealing with scores of 
DOE sites, hundreds of contractors, differing state laws, and covering 
50 years, the answers vary widely. Because of the complexity and 
importance of this issue, DOE has taken the initiative to review the 
willing payor issue at the major DOE sites where most of the 
applications are being filed.

    Question 12. During the November 21 hearing on the EEOICPA, the DOE 
indicated that once claims are processed promptly, Physician Panels may 
be unable to review and act on the number of claims being processed in 
a timely manner. Please provide a written narrative explaining DOE's 
proposal to address this issue.

    a) If DOE has no proposal to address this issue, please explain why 
DOE does not believe it has authority to address this issue and provide 
citations to all legal authority which support DOE's decision not to 
address this issue.

    Answer. In order to eliminate the current and growing backlog 
awaiting Physician Panel review, these panels will need to increase 
output significantly from the current 17-20 cases per week. Despite 
significant performance improvements in the EEOICPA Part D process, the 
significant gap between the number of applications received and the 
productivity of the process cannot be addressed solely by additional 
performance improvements, and will require additional funds, as is 
being requested in the FY04 reprogramming request and the FY05 Budget 
Request. Furthermore, the Department is currently developing a plan to 
eliminate the backlog of claims.

              Responses to Questions From Senator Schumer

    Question 1. Why have no claims been paid to sick New York workers 
in three years under the DOE-administered program?
    Answer. Part D of the Energy Employees Occupational Illness 
Compensation Program Act (EEOICPA) authorizes DOE to assist applicants 
by collecting their record's and presenting their case file to a 
Physician Panel which determines if the applicant's illness was due to 
their work in a DOE facility. DOE provides this Physician Panel 
determination to the applicant. The applicant may use the case file and 
a positive Physician Panel determination to support an application for 
State workers' compensation. In addition, the Department of Energy will 
not contest, and will direct its contractors to the extent permitted by 
law not to contest, such state workers compensation applications 
derived from positive Physician Panel determinations. The Department is 
currently developing a plan to eliminate the current and future 
backlog, and the Administration is conducting a review of the willing 
payor issue.

    Question 2. Does DOE have a target date to complete claims for 
EEOICPA Part D?
    Answer. The Department is developing a plan to eliminate the entire 
backlog of Part D EEOICPA applications. Currently, the backlog awaiting 
physician review is growing at approximately 80 cases per week while 
the physicians are processing 17 to 20 cases per week. This significant 
gap between applications received and the productivity of the process 
cannot be addressed simply through additional performance improvements 
and will require additional funds, as is being requested in the FY04 
reprogramming request and the FY05 Budget Request.

    Question 3. Why has every single claim from New York processed by 
DOE been denied a review by a physician's panel in three years?
    Answer. No claims from New York have been denied a review. Rather, 
the Part D applications filed with DOE by residents of New York still 
are being developed for review. The Department is developing a plan to 
eliminate the entire backlog of Part D EEOICPA applications, including 
those from New York.

    Question 4. Experts estimate that tens of thousands of people 
worked as employees of DOE and contractor facilities over the last 50 
years in New York. Yet, few people have applied. To date, DOE has 
received only 181 applications. They need to establish a better channel 
of communication with their former employees. This situation begs the 
question, why does New York State have no resource centers used for 
outreach to former employees when we have the most combined DOE and 
contractor facilities (36) in the country?
    Answer. Most New York facilities were not DOE facilities; instead, 
they were privately owned and operated. Under EEOICPA, these facilities 
are defined as Atomic Weapons Employers and Beryllium Vendors. Workers 
at these facilities are covered only by Part B, which is administered 
by the U.S. Department of Labor (DOL). DOL's website (http://
www.dol.gov/esa/reps/compliance/owcp/eeoicp/Statistics/ny.htlm) 
indicates that there are over 2,400 claims filed for Part B.
    For the DOE Part D program, 187 applications have been received 
from applicants in New York.
    DOE and DOL have performed extensive outreach in New York, 
including four visits by Traveling Resource Centers and over 3,000 
letters to DOE contractors and Atomic Weapons Employers retirees and 
union members. In addition, DOE and DOL provide assistance via toll-
free numbers. While DOE has located its fixed resource centers in close 
proximity to major DOE facilities, DOE's implementation of the EEOICPA 
statue includes multiple communication channels for both workers 
covered under EEOICPA Part D and anyone with questions regarding this 
program.

              Responses to Questions From Senator Campbell

    Question 1. Could you please explain where the trouble spots are so 
that our workers can get the help that they desperately need and 
deserve?
    Answer. Currently, the backlog awaiting physician review is growing 
at approximately 80 cases per week while the physicians are processing 
17 to 20 cases per week. DOE is currently investigating and 
implementing process improvements to increase throughput to the 
Physician Panel review process. DOE is also pursuing process 
improvements in the Physician Panel determinations. Despite significant 
performance improvements in the EEOICPA Part D process, the significant 
gap between applications received and the productivity of the process 
cannot be addressed solely by additional performance improvements and 
will require additional funds, as is being requested in the FY04 
reprogramming request and the FY05 Budget Request.

    Question 2. I understand that DOE does not actually pay the 
workers. Could you please explain for clarify who actually does the 
paying?
    Answer. DOE assists applicants by collecting their records and 
presenting their case file to a Physician Panel which determines if the 
applicant's illness arose from the worker's exposure to a toxic 
substance while working in a DOE facility. DOE provides this Physician 
Panel ruling to the applicant. The applicant may use the case file and 
a Physician Panel ruling to support an application for State workers' 
compensation. If the State determines that the employee should be 
awarded workers compensation, the employee is paid that compensation as 
directed by that State's laws.

    Question 3. I have heard from constituents in my state that DOE's 
subcontracting Third Party Administrator is not processing claims. 
Could you explain whether this is true, and if it is, what do you 
recommend so that we can correct this problem?
    Answer. Rocky Flats is looking at ways to improve and streamline 
its process for expediting claims through the State Worker Compensation 
Program in Colorado through a specially designated Third Party 
Administrator. They are in the initial stages of pulling together the 
program. Contractual and legal issues need to be coordinated with 
previous contractors before the program can be fully implemented. 
However, all applicants, who have received positive Physician Panel 
rulings and who have filed for Colorado State workers' compensation, 
are in process with this Third Party Administrator.

    Question 4. Some folks have expressed concern with the physician 
panel's denial of claims, citing a denial rate of around 50% of those 
that actually have been processed. Could you clarify how the physician 
panels determine causation of illnesses?
    Answer. The Physician Panels evaluate each case individually, based 
upon the established criteria. The Department of Energy does not have 
any expectations with respect to how many cases will receive positive 
or negative determinations from the panels. One reason that many Part D 
cases are denied is that we have a very welcoming policy, encouraging 
as many potential applicants as possible to participate in the Part D 
program. Given the complexities of the Part D program and the wide 
variety of eligibility criteria for State Workers' Compensation, we 
want to cast as wide a net as possible.

    Question 5. Implementing this program is incredibly complex, with 
several parties involved. Sorting this out is certainly a difficult 
job, but the people who are sick don't have the luxury of waiting for 
us to do so. In your opinion, what can Congress do to help the 
beneficiaries who are due compensation?
    Answer. The Department is developing a plan to eliminate the entire 
backlog of Part D EEOICPA cases. However, the backlog awaiting 
physician review is growing at approximately 80 cases per week while 
the physicians are processing 17 to 20 cases per week. This significant 
gap between applications received and the productivity of the process 
cannot be addressed only by additional performance improvements and 
will require additional funds, as is being requested in the FY04 
reprogramming request and the FY05 Budget Request.
                              Appendix II

              Additional Material Submitted for the Record

                              ----------                              

                       Coalition for a Healthy Environment,
                                     Knoxville, TN, March 28, 2000.
Senator Lamar Alexander,
Hart Senate Office Building, Washington, DC.
    Dear Senator Alexander: Let me begin with thanking the Senator 
raising the worker health problems to open senate committee process and 
receiving written testimony in order to accurately address the extent 
of the problems and seek more effective remedies such as removing DOE 
from the Compensation Act (EEOCIPA).
    I submit my testimony as a former Security Police Officer, Police 
Supervisor and police Training Commander with knowledge of problems at 
the K-25 site and DOE sites in general.
    I apologize for the structure of this testimony and the grammatical 
errors . I have lost a lot of my former abilities.
            Kindest regards,
                                            Harry Williams,
                                                         President.
              Statement of Harry Lee Williams, President, 
                  Coalition for a Healthy Environment
                              introduction
    Mr. Harry Lee Williams worked as a Security Police Officer (SPO) 
SPO Supervisor and Training Officer at the K-25 plant in Oak Ridge, 
Tennessee, 1976 to 96. He was negligently exposed by DOE on its 
inherently dangerous K-25 site to cyanide, hydrogen fluoride, nickel, 
mercury, other heavy metals, radiation, criticality and other presently 
unknown toxic hazards at the chemically and radiologically contaminated 
K-25 Plant (K-25).
    The plant process and research programs also involved many 
classified compounds. The Department of Energy is guilty of negligence, 
including failure to enforce and apply DOE orders or proper oversight 
and management of its primary contractor, Lockheed Martin Energy 
Systems (LMES or LOCKHEED), which resulted in physical, mental and 
emotional damage by DOE and its agent and contractor, LOCKHEED. The 
respondent did not hire into a active national defense facility nor did 
he intend to. This was a job that on its face enriched uranium to 3 to 
4% to power commercial reactors.
    Respondent asked frequently/periodically if he was being exposed to 
any substance that would cause him harm. His employer always insisted 
the workplace was safe in fact safer than at home. We now know better! 
I was told recently by former plant Shift Superintendents of the mid 
night (undocumented) purging releasing large volumes of UF6 etc. to 
atmosphere. The K-25 site has more ghosts and horrible stories than any 
other gaseous diffusion plant.
    We in Oak Ridge are also haunted by the operations and legacies of 
Y-12 and ORNL (X-10). The government has a duty to expose and correct 
these problems. GOD HELP OAK RIDGE. Respondent recently received 
multiple diagnosis of diseases that have impacted my respiratory and 
nurelogical functions resulting in a workers compensation settlement 
against DOE and its contractor through the normal state system. I could 
not get a timely review of my situation through Sub Part D of the 
EEOIPA costing me 28,500.00 in attorneys fees.
1. Describe the Nature and Extent of Each Injury
    Mr. Williams suffers from Depression; fatigue; suicidal ideation; 
short-term memory loss; loss of concentration; muscle and joint 
soreness throughout body; tingling and numbness of extremities; reduced 
abilities to work with his hands; chronic heart disease (two heart 
attacks, heart aneurysm, two heart surgeries (angioplasty and a stint) 
palpitations; atreal fiberlation, diagnosed with a rare form of 
bronchitis, abnormal blood test (LPT) for beryllium disease, National 
Jewish Pulmanolgist stated that my lung lavage had abnormalities 
consistent with Chronic Beryllium Disease (CBD), shortness of breath, 
even with small exertions or sedentary activities; extreme and abnormal 
sensitivity to heat, painful at room temperatures, comfortable for most 
people; extreme sweating and hot flashes for no apparent reason, 
diffuse and extreme sweating on small exertions; night sweats; 
excretion of unexplained elevated levels of calcium from the urine; 
significant weight gain and loss, particularly in the abdomen and 
stomach; reduced desire for sex; eye and nose irritation; immune system 
disorders, such as Diabetes; poor gas exchange in my lungs, my larynx 
operates abnormally consistent with toxic chemical exposures; heavy 
metal and toxic body burdens are confirmed by laboratory tests to 
include extremely high levels of PCBs, Arsenic, Cyanide, and Mercury 
etc..
    1. DOE and its contractor negligently failed to relocate Harry Lee 
Williams from the Oak Ridge K-25 Site from January 13, 1989 until 
November 27, 1993. On March 8, 1996, through July 23, 1996, Respondent 
became aware of toxic poisoning of his body and asked for removal from 
the toxic K-25 workplace. On March 28, 1996, Dr. Joel Perkerson, 
Primary Care Physician (PCP) removed Williams from this unhealthy 
environment DOE's negligence has resulted in significant compromise to 
Respondent's quality of life, ability to earn a living, mental health, 
and physical health to the extent of being permanent and irreparable. 
Mr. Williams is now suffering on long term disability.
    2. DOE is guilty of negligence by failure to inform Respondent and 
other workers of the toxins and contaminants present in his workplace 
and of the dangers these substances posed to his health and well being.
    3. DOE is guilty of negligence in allowing LMES to inadequately 
acknowledge and investigate his complaints of an unsafe workplace. 
Therefore DOE is guilty/responsible for various toxins entering his 
body.
    4. By April 1995, DOE's contractor was on notice that workers at 
the K-25 plant were getting sick and wanted to be moved to other off 
site/reservation facilities. DOE negligently failed to enforce its 
contracts and federal law and failed to adequately monitor, audit, 
guide, manage and train its contractor in responding to these serious 
environmental health and safety concerns. As a result of this life-
threatening DOE negligence, Respondent and other workers were met by a 
hostile employer with resistance, delays and rudeness from LOCKHEED, 
which sought to suppress health concerns about the K-25 uranium 
enrichment plant site. Respondent was not initially accepted by LMES as 
a participator in the so called cyanide working group. Respondent was 
further denied access to the National Institute of Safety and Health 
Surveys by LMES. Respondent had to locate Mrs. Worthington through the 
Internet on his own initiative outside the workplace.
    5. Since March 28, 1996, Respondent has been on short term and then 
on long term disability. He is unable to work at any occupation.
    6. Respondent was diagnosed with Chemical encephalopathy and other 
impairments from toxic exposures by Dr. Kaye H. Kilburn, M.D., from the 
University of Southern California's Environmental Medicine Clinic. He 
submitted results from two hair samples submitted to his PCP. These 
hair analysis show heavy metal poisons and heavy metals, including 
arsenic, chromium, lead, tin, calcium, magnesium, Antimony, Arsenic, 
Beryllium, Bismuth, Cadmium, Mercury, Silver, Aluminum, Iron, Nickel, 
Thorium, Uranium, and Germanium, Rubidium, Titanium, Zirconium, 
magnesium, Cobalt, Vanadium, Molybdenum, Boron, Lithium, Phosphorous, 
Selenium are present in Respondent's body, due to his occupational 
exposures at DOE's negligently managed K-25 and Y-12 sites.
    7. DOE's contractor resisted filing medical reports and discouraged 
Respondent from raising concerns about his health. DOE's negligent 
failure to enforce its contracts, orders and standards and other 
federal and international legal obligations caused damages to 
Respondent.
    8. Respondent's future medical conditions from exposure to these 
toxins and the synergistic effects from the combination of these toxins 
within his body are not fully known at this time because of the long 
latency periods associated with these conditions.
    9. Respondent's injuries occurred at DOE's K-25 and Y-12 sites in 
Oak Ridge, Tennessee. Respondent's employment at the K-25 Site 
commenced on September 26, 1976 as a Security Policeman. Respondent was 
physically located at the K-25 Site until November 17, 1993 when he was 
transferred to the Y-12 Nuclear Weapons site which is another LMES 
managed site and it too is heavily contaminated similar to K-25. Then 
in October 1, 1994, Respondent was transferred back to the Central 
Training Facility a property of the K-25 site. Also at the CTF 
Respondent was exposed to the pollution from the SEG Incinerator, which 
also burns radioactive and other hazardous waste, releasing toxins and 
furans. Also the IT Corporation (Known to be a contaminated 
facility),these industrial facilities are located about 1/8 to 
1/4 mile upwind from Respondents Central Training Facility a K-25 work 
site.
    10. During his years at the polluted, contaminated K-25 site, he 
occupied office space at Buildings K-1020, K-1008 (old filter test 
facility), K-1652, K-303-8 (K-25 Building), Y-12 Security Police 
Headquarters, temporary Trailer and a Trailer at the CTF K-1654 located 
in the center of track. During his periods of employment at K-25 site 
Respondent while in performance of his duties was frequently in the 75 
major buildings and infrequently in the lesser buildings and burial 
grounds.
    11. Such work responsibilities often required him to work 
throughout the site; however, he often conducted job surveillance for 
other personnel to perform work at these facilities to report any known 
hazards such as radiation and radiological contaminants and report to 
management. DOE and its contractor LMES Union Carbide did not make 
these hazards known for many years.
    12. K-1420, recently listed as one of the top ten most dangerous 
DOE facilities in the nation, served as a facility for decontamination 
of equipment, processing of waste, and electroplating. K-1420 confined 
at the time were highly contaminated throughout with contamination 
often loose and un-contained. Its immediate premises were host to 
several hundred drums of waste and was used to store this waste as well 
as to package and reprocess the waste. Radiological contamination was 
extensive even throughout the surrounding asphalt parking lot, the 
change areas, and even in the lunchroom. The metal plating facility 
once was located in the K-1420 Building was a source of cyanide and 
other chemical toxins. As a Security Police Officer and Supervisor, 
Respondent was not aware of the radiological condition of the facility, 
and had no training or knowledge about the chemical hazards present. 
DOE's negligent failure to enforce contracts, orders and standards led 
to this lack of information. Mr. Williams was to be transferred to the 
K-1420 Building after his first heart attack in 1989. This attempt 
shows a chilled management structure that is grossly incompetent.
    13. Respondent was concerned about airborne transmission of 
hazardous chemicals and radioactivity to his body and believes to this 
day that air monitoring at the entire K-25 plant for such was severely 
inadequate. There was no continuous real time air monitoring, and he 
knew of no air monitoring for toxins. For several years in the early to 
late 80's the radiation monitors/alarms were disabled on the K-25 and 
K-27 buildings.
    14. Work assignments at K-1037 were primarily in areas where atomic 
laser isotope separation (AVLIS) was taking place. This was an 
experimental process being developed for the enrichment of uranium to 
the isotope of U-235. Once again, Respondent is deeply concerned about 
the air that he breathed while working in these areas and realized that 
his knowledge of the past building application the classified Gaseous 
Diffusion Barrier Plant (still a classified process as are some of the 
metal and chemical association. Respondent now has reason to believe 
that the legacy contamination of the classified compounds may still be 
present and that the uranium was substantially altered, but he was not 
instructed or informed with knowledge of the process to know about 
chemical components or the inherent legacy contamination as well as the 
AVLIS contributions to the buildings contaminations.
    15. Other job duties were at K-1435, the Toxic Substances Control 
Act Incinerator (TSCAI). He routinely conducted supervisory patrols 
and/or surveillance and monitoring of Security Police personnel. These 
surveillance included walking in the close vicinity of empty drums that 
had stored waste. He was not informed by labels or by instruction of 
the prior contents. In 1987/88 Respondent performing duties as the 
shift Security Police Supervisor responded to several accidents and 
spills at the Westinghouse incineration demonstration pilot plant in 
the Portal Eight parking lot. At no time was Respondent advised of the 
contamination or the health risk associated with this project.
    16. On many occasions while working at the K-25 plant Respondent 
responded to process releases relative to process system failures. 
Respondent conducted both patrols and supervisory patrols of the major 
process buildings, laboratories, machine shops, metal plating 
facilities, etc.. Respondent was never properly informed as to the 
extent of associated hazards risks; was not provided with proper safety 
equipment.
    17. Very often while working in the proximity of the waste tanks, 
he would be aware of suspicious looking cylinders (later to be 
identified as Manhattan Project era cylinders). Respondent asked Vicki 
Tharp (plant spokes-person on health and safety issues) on more than 
one occasions about the health hazards at the K-25 plant to which she 
replied we were safer at the plant than at home. The yellow and 
sometimes green and grainy appearing substance was not only found on 
the Manhattan Project Cylinders but on various pipes, valves, all 
throughout the K-25 and K-27 buildings. He was not told or did not know 
then but realizes now that these compounds were in fact a product of 
the of the process and were thought to be enriched uranium ranging from 
a 5 to 90% depending where in the process one visited. Not only was 
this a carcinogen, heavy metal, and a radiation hazard. Lockheed Martin 
stated in 1992 that DOE and its contractor were practicing principles 
of ALARA (As Low As Reasonably Achievable) for chemical exposures, DOE 
and LOCKHEED failed to keep that promise with respect to the exposures 
suffered by Respondent and other K-25 workers. Respondent had frequent 
occasion for many years to patrol in very close proximity to UF6 
storage cylinders in various parts of the plant including the Hydrogen 
Fluoride tank Farm and various waste containers.
    18. DOE and its contractor negligently failed to impart any 
knowledge of the contents of these waste tanks and storage cylinders 
relative to hazards and volatility involved even though a routine part 
of his work was around them.
    19. DOE and its contractor negligently failed to provide adequate 
training and information for Respondent regarding chemical hazards, 
risks, or protective measures, including his right to have his medical 
records maintained and available at the facility responsible for 
Respondent day to day medical care: also available if there was an 
emergency response to provide treatment to Respondent due to his 
several chronic illnesses. Respondent, was actually denied the good 
medical practice of having his medical records maintained at the plant 
providing care. For a period of months in 1995 and 1996 Respondent was 
informed by both the nurses and doctors that his medical files were 
missing or maybe misplaced. DOE and the contractor was negligent in 
there failure to respond to Respondent environmental, health and safety 
concerns, including imminent threats to human life such as he reported 
to LOCKHEED on several occasions. To provide and example Respondent was 
required participate in a fire training exercise at the fire training 
facility located in the main plant containment area on the north side 
of K-25. This facility burnt waste motor oil and transformer lube oil 
(contaminated with PCB's). The thick black smoke from this facility 
would be so thick at times it interfered with viability in a large area 
of the plant.
    20. Limited chemical training covered Material Safety Data sheets 
(MSDS). K-25 plant pollutants continued to be concealed by frustrating 
employee efforts to get MSDS for the chemicals used in connection with 
the K-25 Insituform sewer line lining project.
    21. On May 30, 1996, DOE's contractor and subcontractor violated a 
1996 ``stop work order'' by K-25 plant manager Harold Conner on the 
sewer lining process because of concerns regarding diisocyanate. Mrs. 
Sherry Farver, a friend and co-worker /peer of Respondent raised 
concerns with DOE and LOCKHEED about the violation of the stop work 
order but never received a response from either DOE or LOCKHEED. 
LOCKHEED managers lied about the violation of the stop-work order. The 
Material Safety Data Sheet for the diisocyanate compound showed that 
the compound had a Threshold Limit Value (TLV) of 5 parts per billion, 
a highly toxic chemical, and that it was not to be used around hot 
water, to prevent ``vigorous'' and ``violent'' reactions. DOE's 
subcontractor used this diisocyanate compound in exactly this manner--
in conjunction with hot water for curing--unreasonably risking 
Respondent's life and the lives of other employees due to DOE's failure 
to enforce OSHA, EPA and other standards that are mandatory. ``Let's 
don't put anything in writing,'' Harold Conner, the LOCKHEED K-25 plant 
manager told a group of workers on May 22, 1996 in a meeting about the 
stop-work order. DOE's negligent management allowed this to happen.
    22. On occasion, Respondent was required to respond to TSCA during 
the trail burns and original start up process where an accident or 
release had occurred and/or a failure of the TSCA waste processing 
systems. He was never told by DOE or its contractor of a mechanism 
called the Thermal Release Vent--which opens and directly vents TSCA 
emissions to the atmosphere when the system malfunctions. He now 
wonders what combination of contaminants that he breathed as a result 
of this and subsequent releases.
    23. TSCA has had thirteen known accidental releases for durations 
of two or more hours each and at least two very serious accident/
incident at the incinerator pilot project located in the Portal Eight 
parking lot. DOE negligently failed to protect workers from the 
synergistic effects of hazardous waste incineration as well as the 
increased hazards associated with products of incomplete combustion 
from hazardous waste incineration such as cyanide, dioxin, and furans. 
Hazardous materials and waste were mislabled and disposed in violation 
of EPA--TDEC 24. The later incidental K-25 Site toxic exposures did not 
consist of field worked. Respondent worked as an instructor, and 
training officer.
    25. When he first realized that he was being poisoned, Respondent 
assumed the exposures were from his past assignments in the field. As 
he learned of more workers who experienced the same poisoning, he 
realizes that many of these workers had never worked in waste 
processing areas of the site. Some of the workers were cafeteria 
workers and solely administrative office workers. Respondent and the 
others lived in different surrounding counties and performed a number 
of diversified jobs at the site, but it was quite apparent their one 
common link was the Oak Ridge K-25 or the Y-12 Site.
    26. On September 27, 1976, Respondent began his career employment 
at Oak Ridge K-25 Site.
    27. In 1989, preceding and specifically following his first heart 
attack his depression and fatigue became extreme. In 1993, Respondent 
began treatment with antidepressants.
    28. During 1989-1995, Respondent's physical and mental health 
declined. Fatigue and malaise were relentless and increasing. Angina 
pain became a frequent occurrence. Incontinence (both of the bowel and 
urinary tract) accidents occurred frequently. Other symptoms developed, 
including severe short-term memory loss, tingling and numbness of his 
extremities, muscle twitches and sleep apnea. heat intolerance, 
sweating, muscle/joint pain, eye and nose irritation develop and 
constant moderate level ringing in my ears, dizziness, extremity 
condonation and control, and a significant loss of old factory senses.
    29. On March 8, 1996, Respondent was examined by his PCP (general 
practitioner) and asked for a urine thiocyanate test.
    30. On March 8, 1996, Respondent learned that the urine thiocyanate 
test was 29 micrograms/milliliter with normal range for a non-smoker 
being only 1-4 micrograms/milliliter.
    31. On or about March 16, 1996, Respondent met with his manager 
Michael Knazovich to discuss his concerns and to request an 
investigation of his work area as two employees who were tested had 
high thiocyanate levels. LOCKHEED refused Respondent's request to take 
biological samples from other workers in the CTF and specifically his 
peers in his trailer. The CTF is located approximately 1/4 mile down 
wind of the SEG incinerator. On the stated basis that Lockheed believed 
there was no concern to workers.
    32. On or before April 26, 1981 To March 1983, Respondent was 
exposed to what now and then is characterized as an unsafe laser, that 
Respondent believes has damaged his eyes contributing to his poor 
vision.
    33. Respondent did phone/file a medical incident report on April 
25, 1996: on this date Respondent was sick at home. Acting upon 
instructions from Dr. Edelman of the Vanderbilt Medical Center, he 
stated that Respondent should file with Workman's Comp (Willis Caroon). 
To meet the requirements for filing Workman's Comp. Respondent had to 
file a medical incident report. Upon information and belief, other 
workers were deprived of the ability to file medical incident reports 
in the time period since K-25 was closed. This negligently deprived DOE 
of operations information that would have allowed it to devote 
sufficient resources to environmental, safety and health information at 
the K-25 plant.
    34. Respondent was under his PCP's on going care on March 28, 1996, 
with Visits at least every six weeks if not more often. Respondent PCP 
stated that he didn't know how to treat the various toxic issues. 
Respondent had raised concerns about. This lead to my visits to Dr. 
Kilburn, USC and a request to see Dr. James Bond a Neuro-opthamologist 
that my Insurance would not approve.
    35. During January 1996, ill workers petitioned NIOSH for a health 
hazard evaluation of the K-25 site.
    36. On March 28, 1996, Respondent was told by his PCP that his 
health required he be placed on short term disability. Respondent had 
to remove himself from the unhealthy work environment that exist at K-
25 and Y-12 plants and for that matter the other ORO plant sites.
    37. On February 8, 1996, NIOSH personnel arrived in Oak Ridge.
    38. On or about February 9, 1996, Respondent was not scheduled by 
Lockheed Martin (as requested) to meet with NIOSH Nurse Karen 
Worthington. Respondent had to locate Worthington via Internet and talk 
to her by phone; Worthington requested medical records and signed 
release forms Respondent complied. There has been no further contact 
with NIOSH.
    39. On April 4, 1996, Respondent was seen by Dr. Phillip Edelmen by 
directive of his PCP. Edelman report was inconclusive by design. 
Williams not knowing that Edelman was the contract DOC for LMES was 
subjected to the influence of LMES management involvement in his 
personal medical care.
    40. Respondent worked very competently and diligently, earning 
several favorable written recommendations and the respect of managers 
and co-workers alike. DOE owed him a duty of care to protect him from 
harm from ultra-hazardous operations, including ``legacy 
contamination'' from such operations, which contamination was known to 
DOE.
    41. This is a case of res ipsa locutor negligence, by keeping 
Respondent in a harmful work environment first at K-25 for a decade or 
more and then at Y-12 for 11 months and some days and then Back to K-25 
for another year or more. Never once providing a safe work place; after 
he was found to have poisons in his body.
    46. Respondent' Primary Care Physician Dr. Joel Perkerson wrote in 
his 1997 patient notes that Respondent medical problems could be 
attributed to possible environmental exposures.
    47. DOE's negligence has again resulted in a worker's unusual 
illnesses and chemical sensitivities, due to DOE's indifference to the 
value of human life of Oak Ridge contractor employees. This can be 
confirmed by the March 1998 meeting at Pollard Auditorium with a team 
of doctors and contract Health Physics Technician. Where what appears 
to be at least several standard deviations above normal of beryllium in 
the topsoil in and around the K-25 site. Respondent also learned that 
the K-25 Powerhouse area was also contaminated with Beryllium legacy 
waste. As a security police training officer Williams participated in 
several tactical weapons exercises in and around the area and 
buildings. This powerhouse area was known to be highly contaminated by 
the DOE and its prime contractor Union Carbide/Lockheed Martin Energy 
Systems.
    48. Respondent seeks not only compensation, but thorough reforms to 
halt Oak Ridge Operations' negligent conduct of its environmental, 
health, safety and nuclear criticality functions, in violation of 
federal law, DOE Orders and contractual responsibilities.
    49. DOE negligently failed to enforce its own safety and whistle 
blower protection rules and contractual provisions, resulting in 
personal injury to Respondent due to the presence of dangerous 
chemicals and radiation. DOE's negligence abused the trust of K-25 
workers, to whom DOE owed a duty of care, protection and loyalty.
    50. The radiation in K-25 was negligently termed by DOE as 
``historical'' or ``legacy'' radiation (due to the time when it was 
deposited), as if that obviated the requirement to decontaminate and 
decommission a uranium enrichment plant with thousands of missing pipe 
segments, some removed due to criticallity or near-criticallity.
    51. DOE now admits that K-25 presented significant life, safety and 
health risks to workers. The radiation and chemical exposure was 
ongoing for K-25 workers. DOE negligently failed to ever inform any 
workers that K-25 was a Superfund Site, or that workers were being 
exposed to chemicals and radiation on a daily basis.
    52. DOE's negligently misleading ``historical'' or ``legacy'' 
radiation designation, DOE's yellow radiation ropes and DOE's vague 
assurances did not fulfill DOE's legal and moral duty to clean up the 
radiation and toxins, with K-25 shut down in 1985. These acts and facts 
have been documented in the Nashville Tennessean in 1997.
    53. DOE's duty to follow its own safety, health, environmental and 
radiological standards at K-25 after the end of the Cold War is not a 
``discretionary duty'' under the Federal Tort Claims Act (FTCA). DOE's 
breach of its duty is the proximate cause of Respondent's damages. DOE 
put K-25 workers in harm's way with a risk of nuclear criticality and 
chemical releases ever-present, radiation alarms not working, and 
strange smells, asbestos, cyanide, and other hazards permeating the 
buildings. The confinement of human beings in this K-25 site was 
tantamount to a warped, negligent ``experiment'' with some 3500 
peoples' lives, without moral or legal justification or excuse, in 
violation of the Geneva Convention and the Nuremberg Principles.
    54. When Respondent was moved in may of 1992 to K-303-8 (now closed 
and barricaded) DOE had been negligent in failing to perform its duties 
to protect worker and public health from the incompetence of DOE's 
contractor, Lockheed Martin, which had previously placed other workers 
in harms' way in unsuitable office space in unsafe locations, a fact 
that was known to DOE.
    55. DOE/AEC signed in 1971 a memorandum of understanding (MOU) with 
the Department of Labor Occupational Safety and Health Administration, 
pledging to obey all OSHA standards. DOE Orders require that safety be 
protected. Such agreement and orders were negligently not complied 
with, to the detriment of Respondent and K-25 workers.
    56. DOE failed to supervise its contractor properly in performing 
annual, weekly and other required, necessary and proper maintenance 
chores at the uranium enrichment plant and the nearby incinerators, as 
well as storage of radioactive and toxic materials on the K-25 site, 
some in leaking containers.
    57. DOE failed to give directions required by DOE Orders to clean 
up the K-25 plant. No proper deactivation, decontamination or 
decommissioning of the K-25 site was not started until the 1999 several 
years after respondent went on disability, with uranium and other 
tonics left in the pipes of the plant, with thousands of missing 
segments of process pipes and visible uranium dust and other 
contaminants strewn about the K-25 plant.
    58. Respondent now has a number of health conditions that are 
chronic and relate to chemical sensitivity (diagnosed with chemical 
encefolaphy), which health conditions were created by the unsafe 
conditions in DOE's dangerous workplace, the K-25 site. Those health 
conditions interfere with Respondent's ability to enjoy life with his 
family and a loss of consortium with his wife and lives as elderly 
person before his time.
    59. After the Cold War ended, DOE's negligent placement of workers 
in such hazardous areas as the K-25 plant--and DOE's failure to see 
that training and safety information was given to workers in such 
hazardous areas--was beyond the pale of any ``discretionary function.'' 
There was no justification or excuse as asserted in the Cold War for 
failing to inform workers about the risks of K-25, which was closed in 
1985 and negligently not decontaminated or decommissioned during the 
ensuing twelve (14) years.
    60. Respondent expressed to the management of DOE and Lockheed 
Martin Energy Systems his serious concerns regarding his being moved to 
the K-303-8 (a very hazardous plant area) to an office at the K-25 
plant. LOCKHEED took approximately 18 months to move Respondent from K-
303-8, furthering his chemical, radiological, and asbestos exposures. 
DOE's failure to enforce its contractual and DOE Order provisions 
regarding workplace safety put Respondent in harm's way and worsened 
his illnesses. DOE's failure to act on Respondent's employee concern 
kept him in harm's way.
    61. For years, Respondent's concerns were largely ignored.
                 negligent acts by department of energy
    62. Respondent DOE demonstrated negligence and unfitness to protect 
worker safety, which failure exacerbated the health effects upon 
Respondent and other K-25 workers, needlessly exposed to a uranium 
enrichment plant that was negligently not decontaminated and 
decommissioned, sitting in dangerous condition twelve years after its 
abandonment, in close proximity to an improperly managed incinerator 
burning both radioactive and toxic wastes in a manner that assured a 
``blowback'' of toxins onto the K-25 plant site. DOE negligently:

    a. Failed to perform or supervise or provide proper deactivation, 
decontamination and decommissioning;
    b. Failed to perform or supervise or provide proper oversight;
    c. Failed to perform or supervise or provide occurrence reporting;
    d. Failed to perform or supervise or provide maintenance;
    e. Failed to perform or supervise or provide proper biological 
monitoring of employees;
    f. Failed to perform or supervise or provide proper medical care 
for employees;
    g. Failed to perform or supervise proper workplace radiological, 
chemical or heavy metal monitoring;
    h. Failed to perform or supervise or provide medical services, 
negligently failing to adhere to the provisions of DOE Orders;
    i. Failed to perform or supervise or provide proper industrial 
hygiene or health physics protection;
    j. Failed to take care that DOE's contractual requirements and 
orders were executed by its contractor;
    k. Failed to investigate adequately in response to Respondent's 
safety complaints to DOE;
    l. Failed to provide a full and fair investigation and report in 
response to Respondent's employee concerns and other worker safety and 
health concerns;
    m. Chilled worker concerns about health threats with DOE's 
``scorched earth'' and negligent policy of unjustly and 
indiscriminately fighting workers' concerns about workplace hazards, as 
demonstrated by former AEC Order 0521, as was documented by Clifford T. 
Honicker without rebuttal by DOE--in the New York Times Magazine. DOE 
managers and minions negligently continued to conceal information on 
DOE plant hazards even after the end of the Cold War in 1991. This 
policy of fighting the just claims of contractor workers with federal 
tax dollars involves a scheme or plan whereby DOE and LOCKHEED contract 
and combine to spend millions of tax payor dollars, in order to have a 
chilling effect on workers who reveal safety, health and environmental 
problems involving DOE and LOCKHEED negligence. This negligent policy 
insulates negligent managers from criticisms, negligently furthering 
the environment in which DOE's negligence persists.
    n. Massively resisted any change that would end its negligence in 
an inherently dangerous facility, while in deep denial that any 
problems exist at the facility, to the extent that DOE Oak Ridge 
Operations Manager Jim Hall refused to meet with three reporters from 
the Nashville Tennessean newspaper regarding environmental, safety and 
health problems at the K-25, X-10 and Y-12 plants in Oak Ridge. As 
Leonard Schroeter writes:

          Much like the tobacco industry, the nuclear industry, which 
        was wholly indemnified by the United States government, has a 
        policy of full-scale war against any person with the temerity 
        to suggest that radiation might be bad for their health. Thus, 
        despite the new O'Leary policy of disclosing what a half 
        century of nuclear secrecy, questions still remained as to 
        whether the United States government continued to be committed 
        to no accountability, no responsibility, and no compensation 
        for the powerless victims.*
---------------------------------------------------------------------------
    * Leonard W. Schroeter, ``Human Experimentation, The Hanford 
Nuclear Site and Judgment at Nuremberg,'' Gonzaga Law Review 147, 161.

    o. Committed other negligent acts of commission and omission, acts 
presently concealed by negligent use of classification, including acts 
related to the use of heavy metals including but not limited to 
mercury, arsenic, copper, chromium, molybdenum, lithium, lead, tin, 
strontium, Nickel powder concoction and magnesium, etc. at the K-25 
site.
    p. Continues to subject Respondent and other workers, residents and 
citizens to negligence, including the ``re-industrialization'' taking 
place without proper protections for workers, with DOE employee 
concerns personnel telling LOCKHEED workers expressing concerns about 
K-25 to stop calling their offices, e.g., about new personnel working 
for new employers who have located at K-25 as part of ``re-
industrialization,'' without adequate training, information or 
radiation and chemical protection, including workers observed eating 
and smoking in radiological areas in contaminated buildings;
    q. Continues to ignore concerns about retaliation, including the 
incredible, request by PCP to remove Respondent from an unhealthy work 
environment. Respondent raised concerns about his work place from 
October 1993 to April 28, 1994. Respondent was moved out of harms way 
until Colonel Willis Leon Clement (Retired) was presented with the 
April 28, letter from Respondent' PCP. Colonel Clements failed to 
Forward this letter to medical. Respondent had Dr. Zannoli put this 
letter into his medical file. Respondent was repeatedly retaliated for 
protected activity by LTC Lorry Ruth (Retired) a direct report to 
Colonel Clements. This harassment was detrimental to respondents cardio 
pulmonary health.
    66. This hostile K-25 working environment was utterly intolerant 
toward worker concerns about K-25. DOE officials were ``frozen in the 
ice of their own indifference.'' As a result of DOE's negligence in 
allowing it to persist, Respondent and numerous K-25 workers already in 
harm's way were kept in unhealthy work environments longer.
                            relief requested
    67. Respondent requests that health care be provided and DOE pay 
loss wages and compensatory damages.
    68. Respondent further requests that DOE provide for lifetime 
medical monitoring and treatment by independent physicians of the his 
choosing, and for all employees so exposed.
    69. Respondent requests that DOE agree to: B. Immediate and 
unconditional declassification, pursuant to the Freedom of Information 
Act, the Privacy Act, the community ``right to know'' laws, the 
publicly announced declassification orders of Secretary of Energy Hazel 
O'Leary, and the recommendations of the Report of the President's 
Commission on Protecting and Reducing Government Secrecy, of all 
documents on toxic hazards on the Oak Ridge reservation, including the 
use and abuse of chemicals and compounds, including but not limited to 
cyanide, mercury, arsenic, copper, chromium, molybdenum, lithium, lead, 
tin, strontium, magnesium and nickel. at K-25, other K-25 hazards and 
the nearly 100 still-classified compounds to which workers were exposed 
in Oak Ridge, and the contents of the Records Holding Task Group (RHTG) 
in Oak Ridge, Tennessee. Rather than forcing plaintiffs to seek this 
necessary and proper declassification ad hoc, piecemeal, one case at a 
time, and risk missing relevant information, Respondent hereby makes 
this urgent, generic request for all information on such hazards should 
be declassified at last. The Cold War ended six years ago. Inasmuch as 
a Q-cleared attorney is ready to conduct the review. the 
declassification should not be delayed by one more day DOE should not 
be allowed to use the 911 incident and the Patriots Act as an excuse to 
hide proof of the dastardly deeds and hazards associated with legacy 
operations.

                               conclusion
    70. We are ready, willing and able to assist you and the committee 
good offices in its work. Please call upon us when we can help you 
understand what DOE ORO did to Respondent and other workers similarly 
situated.
    71. DOE paid for and sponsored a contract team of doctors to 
evaluate the first 53 employees claiming illnesses connected to the 
work place. This evaluation was supposed to last 6 months has taken 6 
years (1997 to 2003 resulting in many of these employees diagnosed with 
work place related illnesses. This DOE sponsored evaluation is proof 
enough to support workers complaints of exposures and health concerns.
    72. We (CHE) were the primary group that brought forth the very 
idea of what came to be known as the OCCUPY and we have been very 
active in trying to reform EEOCIPA to where it treats all disabling 
illnesses attributed to the DOE/Contractor work place equally, doing 
away with sub part D and move its exposure and illnesses to Sub Part B 
of the EEOCIPA.
                                 ______
                                 
                                  Anchorage, AK, November 10, 2003.

Hon. Lisa Murkowski,
U.S. Senator for Alaska, Hart Building, Washington, DC.

Re: EEOICP Hearing--11/14/03

    Dear Senator Murkowski: I respectfully request my statement and 
attachments are entered into the above Hearing Record.
  Statement of Beverly Aleck, Widow, Nick Aleck (Deceased) Amchitka, 
                         Alaska, Cannikin-Miner
                               background
    1. My husband, Nick Aleck, was one of the miners of the 6,000-foot 
underground cavity on the Cannikin atomic test from 1970 to 1972 at 
Amchitka, AK. We were both ignorant about radiation exposure. He died 
five years later from leukemia (CML) of the blast crisis, on Christmas 
Day 1975.
    2. With numerous medical expenses and Nick Aleck's death, union 
attorney's suspected radiation connected with the Atomic Tests caused 
Nick's leukemia. On April 1976, we filed State Worker's Comp and 
Federal District Court claims, and were refused documents requested; 
they were labeled as `classified' or `secret', wherein my claim's were 
dismissed in 1980-82 without prejudice.
    3. Following passage of the 1988 Atomic Veterans Act, and the 1990 
RECA act by Congress, Energy Secretary Hazel O'Leary on December 7, 
1993 announced the beginning of the end of the Department of Energy's 
policies of secrecy and repression concerning the United States' 
nuclear weapons testing program, wherein I immediately renewed my 
efforts to obtain information concerning the radiation exposures that 
led to Nick's death. I obtained an important report, a copy of the 
``Amchitka Island Long Term Hydrological Monitoring Program'' (marked 
For Internal Use Only), on February 25, 1994, through the Alaska 
Department of Environmental Conservation (ADEC).
    4. On October 31, 1996, Alaska's Governor Knowles ordered an 
investigation of the effect of the Atomic tests on its workers, the 
environment and the Aleute residents in the Aleutian chain, and 
demanded test site records. An oversite advisory committee was formed--
ATAG. I was designated by the Alaska State District Council of Laborers 
to represent Alaska's Amchitka test site workers.
    5. DOE radionuclide documents and work records made available by 
1997-1998, were used by Dr. Rosalie Bertell, to prepare ``Estimating 
the Exposure to Ionizing Radiation Incurred by the Workers at the 
Amchitka, Alaska Test Site''. Thereafter, DOE and the State of Alaska 
ADEC entered into an agreement (AIP) to fund the 1999 Amchitka 
Workforce Medical Surveillance Program.
    6. In 1999, the Alaska State Legislature passed a unanimous 
resolution, SJR-21, demanding the United States Department of Energy 
resolve all Alaskan's claims relating to Amchitka's Atomic Tests, and 
requested our congressional delegation to take appropriate action. In 
2000, U.S. Senator Frank Murkowski obtained a SEC for Amchitka workers 
in passage of the EEOICP Act by Congress.
    7. The Medical Surveillance Program began in 1999. In July 2001, 
the Alaska Resource Center was opened, which has been effective in 
assisting claimants establish their work histories, and file for DOL 
and RECA lump sum payments, and file DOE-OWA and State WC Claims (now 
deadlocked). I personally helped many claimants file DOL and DOE-OWA 
State WC claims under the Act, including FECA claims by government 
contractor employees. See Newspaper clipping attached.*
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    * All attachments has been retained in committee files.
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    8. Thereafter, I was assigned to special research work by Dr. Knut 
Ringen. Backed with a large accumulative background of research of DOE 
and other documents, including locating an additional 371 boxes of 
records; Contacts with hundreds of former Amchitka workers; Personal 
knowledge of the early years workers, their survivors; and the Early 
years Contractors, and Subcontractors. I have just recently retired 
from my work with the Alaska State District Council of Laborers.
     summary--doe-owa--procedure: state workers' compensation claim
    Recently, I experienced my own survivor's DOE Subtitle D ``test'' 
procedure as follows:
    Oct. 31, 2002. Request for Review by Physician Panel was filed. 
Extensive work history of the Cannikin shaft/cavity including 38 photos 
of underground activity was provided to the panel.
    April 8, 2003. A Physician Panel Positive Determination was issued.
    April 28, 2003. Fax: To Bechtel, ``First Report of Injury''; 
Physician Panel Positive Determination; DOE Transmittal--Accepted Panel 
Determination--Instructed Bechtel (accept Primary Liability).
    May 5, 2003. Fax: Bechtel--Requested Medical Records, Death 
Certificate and Marriage Certificate.
    May 27, 2003.``First Report of Injury'' filled out by employer 
``Bechtel'' (Holmes & Narver's successor), validated by Darryl 
Campbell, WC specialist, and filed with Alaska Workers' Compensation 
Div.
    June 20, 2003. WC Div faxed Questions: Employer/Bechtel (Holmes & 
Narver); verify Ins./Address.
    July 8, 2003. Darryl Campbell, Bechtel-Nevada, confirmed Bechtel's 
Alaska Div. WC filing, and Holmes & Narver Ins. Phone and E-mails 
outlined the process. ``He would not be the adjuster. The Ins. Co. sets 
up the claim and pays all appropriate benefits. His main responsibility 
is administrative. Receives notices from DOE, sends paperwork/notify 
the insurance Co's, and reimburses the carriers''.
    July 10, 2003. Notice: AK State AWCD Claim number issued, Holmes & 
Narver--Insurer/Adjuster.
    July 11-18, 2003. E-Mails Bechtel: ``Notice of Injury'' was sent to 
wrong insurer, will resend to Hartford Ins. This is a ``trial by fire'' 
to confirm who the insurer is and contact to insure they know of the 
DOE program. This is the first case from prior contractors of Bechtel, 
and is our ``test'' case to learn as we go along. Talked with Roberta 
Highstone at ``Harbor Adjustment Services''. They are in process of 
setting up the claim, you should be hearing from the Adjuster.
    STATE WC--INSURERS--LEGAL ACTIONS:--(also served Bechtel)
    July 18, 2003. Legal Appearance--Robert L. Griffin: Petition to 
join claim with Carlsson case.
    July 21, 2003. Objection to Petition, and (4) Questions, filed by 
Beverly Aleck, claimant.
    Aug. 18, 2003. R.L. Griffin: Filed a Petition to ``Withdraw 
Petition'' to join Carlsson case.
    Although Bechtel-Nevada (DOE' current Contractor) made an effort to 
carry forth DOE-OWA's intent to reimburse this Alaska WC claim, under 
the current limitations of Subtitle ``D'' of the Act, the claim is now 
deadlocked, unable to move forward due to vicious legal action by the 
insurers attorneys, who are not being informed of potential 
reimbursement because there is ``NO Willing Payer'' language provision 
in the Act, to permit reimbursement to insurers, or direct payment of 
DOE physician panel approved claims, enabled by the signed MOU between 
the State of Alaska and Department of Energy. See: Alaska State/DOE MOU 
attached.
Subtitle--D Climants Are Now Deadlocked
    I am deeply concerned that Subtitle D Claimants are now deadlocked 
from moving forward with their Alaska State WC claims. Former AEC (DOE) 
Amchitka contractors and numerous prior insurers are no longer in 
business. In order for DOE-OWA WC claims to move forward, and enable 
the Primary Liable Contractor ``Role'' attempted by DOE Bechtel-Nevada 
(or any other DOE Primary Liable Contractor/Successor or Current 
Agency), a Third-Party Willing Payer amendment to the EEOICPA 2000 Act 
Subtitle D, should be implemented by Congress immediately. See: 
Suggested Amendment--Subtitle D, Sec. 3661.
    There are only a few claims (approximately 49) that have a DOE-OWA 
positive physician panel determination. To only appropriate funds to 
government agencies to process these claims @ $20,000 or more per 
claim, while ignoring this small number of claimants entitled to 
compensation, is inexcusable. It is important these claims can be 
compensated promptly, timely, because the statues of limitations are 
running under current State WC law, while claimants are dying. Under 
Alaska State Workers Compensation law, survivors have to file for Death 
Benefits within one year, from the date of the DOE-OWA Physicians Panel 
positive determination.
    By contrast, injured Amchitka workers who were AEC (DOE) Government 
Contractor employees are able to file WC claims under FECA, and be 
compensated without any delay. It is unconscionable of Congress to 
ignore the blue color construction workers who sacrificed their health 
and lives for all American's to be secure today, while 30 years (or 
more) later their claims are deadlocked in this existing process. 
Congress cannot sanction Federal employees FECA compensation over 
civilian workers, creating two classes of U.S. citizens at the same DOE 
work site. Alternatively, civilian workers could be compensated as a 
designated FECA employee, by Congress.
    By further contrast, the victims of 9-11 have not had to wait 30 
years for just compensation. Mr. Fineberg's chart sets $250,000 the 
minimum for pain and suffering, plus lost income estimated @ $175,000-
$4,000,000 per claimant--authorized by Congress to pay directly from 
the U.S. Treasury. There are nearly 3,000 9-11 claimants, and only 49 
DOE claimants with physician panel approvals. Congress has a moral 
responsibility to immediately pay these approved claims, under a law 
that was passed three years ago.
    Amchitka claimants, and all DOE Test Site claimants will greatly 
appreciate your effort to amend Subtitle D, enabling prompt, just 
compensation for all claimants, and bring belated final closure to this 
personal tragedy.
                                 ______
                                 
                                                     Maryville, TN.
Senator Lamar Alexander,
Hart Senate Office Building, Washington, DC.

    Dear Senator Alexander: In 1978, I began my employment as an 
administrative assistant at the K-25 Oak Ridge Gaseous Diffusion Plant 
in Oak Ridge, Tennessee. When I began working at the K-25 Plant site I 
was 25 years of age and in excellent health. It was not long after I 
started working at this DOE nuclear site that my overall health began 
to decline and I began experiencing a number of serious health issues. 
For the past twenty years of my life I have gone from physician to 
physician, had numerous surgeries to remove glands, cysts, fibroid 
tumors, and most recently a large tumor and approximately one-fifth of 
my liver removed. I was in surgery a total of three and a half hours 
and shortly after the surgery was informed that my right lung had 
collapsed and that I had pneumonia in both of my lungs. On the second 
day after my surgery I told my husband that I did not believe that I 
was going to survive from this and ever be able to leave Duke Hospital. 
It is with many prayers from friends, co-workers, and my family that I 
managed to make it through this most painful and difficult time.
    A week ago, I received a diagnosis upgrading my Beryllium 
Sensitivity to Chronic Beryllium Disease. Once I began working at the 
K-25 Plant I started having asthma type symptoms along with chronic 
pneumonia and pleurisy which was later diagnosed by a K-25 medical 
screening process as being Beryllium Sensitivity. Chronic beryllium 
disease, or CBD, is an inflammation in the lungs that can occur when a 
person is exposed to respirable beryllium fumes, dusts or powder, and 
subsequently demonstrates an allergic reaction to beryllium. CBD is an 
occupational disease that may occur in the manufacture of metallic 
beryllium, beryllium oxide ceramic, or alloys containing beryllium. 
This disease can lead to clinical symptoms that include scarring and 
damage of lung tissue, causing shortness of breath, wheezing and/or 
coughing. Extreme cases of CBD can cause disability or death.
    For years I have been searching for answers to the many illnesses I 
have been diagnosed with and found somewhat of a relief in July 1999, 
when the Clinton/Gore administration made a historic announcement and 
apology to all of the nuclear workers and their families across the 
country that we had been put in harms way and that there were times 
when DOE had consistently placed production objectives ahead of worker 
health or safety. On Dec. 7, 2000, the President signed the Energy 
Employees Occupational Illness Compensation Act (EEOICPA) of 2000, 
which has since been administered by the DOL along with the DOE. Within 
this program, it was the initial desire of congress to assist workers 
with their worker's compensation claims for occupation diseases 
relating to working in a DOE nuclear facility.
    However, instead of following the congressional intent of creating 
a uniform system, DOE implemented regulations placing numerous 
obstacles contained in state worker's compensation programs that 
congress had sought to circumvent through a federal assistance program. 
This was not surprising to some as indicated in the National Economic 
Council report of 2000, which documented that state worker's 
compensation systems were particularly ill-suited to provide workers 
compensation for occupational disease due to statues of limitations, 
varying and difficult burdens of proof with respect to causation, and 
proving which employer was responsible for each illness when there were 
many contractors who worked at these DOE nuclear sites.
    Congress' intent was to assure a non-adversarial process be set 
forth within DOE to assure that these sick workers who suffered from 
illness or disease from exposures at their workplace to toxic 
substances would be paid by the DOE contractors without a legal battle. 
It was clearly stated, the government had taken the responsibility for 
the harm suffered by these workers and their families and that they 
should not have to wait years to receive assistance through DOE and 
state worker's compensation programs. It was also clearly understood 
that some of these workers may not survive long enough to receive aid 
through the DOE program and that there was an urgent need to implement 
this program and to help these workers and their families.
    In October 2003, the General Accounting Office, the investigative 
arm of Congress, had been asked to look into the bottlenecks of the DOL 
and DOE's system set up to handle compensation claims filed by sick 
nuclear workers from the Cold War era, or their survivors. An estimated 
650,000 to 750,000 people worked in our nation's nuclear defense 
program and thousands of them have sustained disabling or fatal 
illnesses and diseases as a result of their exposure to some of the 
most harmful substances known to mankind.
    The preliminary GAO report showed that of the nearly 19,000 cases 
filed with the Department of Energy (DOE), only six percent had been 
completely processed (42 wfth physician panel determinations and 1,170 
found ineligible or withdrawn at request of claimant). More than fifty 
percent (10,109 claims) had not begun processing. Nearly two-thirds of 
pending cases were filed within the first year of the program, which is 
an average of 571 cases being filed on a monthly basis since July 2002.
    My question to Congress is, were the claims which were denied by 
the Department of Energy, denied for any of the above reasons as 
indicated in the National Economic Council Report of 2000, in their 
recommendations as to why the state workers compensation program would 
not work for these nuclear workers. If the initial intent of Congress 
was to compensate these workers and their families for their pain and 
suffering, why are these claims not being processed in a timely manner 
as indicated in the GAO report and why are so many of them being denied 
if this process, is in fact, going to work?
    On July 31, 2001, the Energy Employees Compensation Claims Center 
opened in Oak Ridge, Tennessee, and on August 8, 2001, I filed my claim 
with the DOL for my beryllium sensitivity and with the DOE for my heavy 
metal toxicity and relating illnesses/diseases. The DOL approved my 
claim for my beryllium sensitivity a little over a year ago; however, 
it has been over two years since I have heard anything from the 
Department of Energy regarding my personal claim.
    I was placed in an extremely difficult financial situation due to 
my health issues and was forced to file for bankruptcy in 2001. In 
1999, my out-of-pocket medical expenses were in excess of $7,000 with 
an annual income of less than $30,000 which put a tremendous burden on 
myself and my daughter who at that time was a high school student. I 
was unable to obtain any health or life insurance due to my pre-
existing conditions and was unable to work due to being placed on 
permanent medical disability. I was mentally and financially devastated 
and still had heard nothing from DOE regarding my claim for illnesses. 
My only prayers were that I would be able to keep a roof over our heads 
until my child graduated from high school.
    Approximately two months ago I received a call from the DOE, Office 
of Worker Advocacy regarding the claim that I had filed on August 8, 
2001. They advised me that they were going to begin working on my state 
workers compensation claim and that I would be hearing from a nurse who 
would be handling this. This week, two months after I had received my 
initial call from the claims office, I received a call from my claims 
advisor and was then informed that I would be receiving a call from the 
Oak Ridge claim office to go and meet with someone there to go over my 
medical history.
    I received that call yesterday, and have an appointment set up for 
the first week of December. Other than the above mentioned calls that I 
have received, I have never gotten any written correspondence in 
acknowledgement of my initial filing of my claim with the Department of 
Energy and still have not received my claim number. To my knowledge, 
over 3,700 claims have been filed from the DOE Oak Ridge facilities and 
to date only 7 of those claims have been processed through the 
Physician's Panel. These figures are unacceptable and DOE should not be 
permitted to further delay the handling of any of these claims.
    The following is a list of my illnesses/diseases since I have 
worked at the K-25 Gaseous Diffusion Plant which may help others to see 
how complex these health issues are for the nuclear workers who are 
suffering and still have not received any compensation:

          Reoccurring pneumonia and pleurisy with asthma which was 
        later diagnosed as beryllium sensitivity and recently upgraded 
        to Chronic Beryllium Disease;
          Degenerative bone and joint disease, acute muscle/joint pain 
        and swelling;
          Crippling fluid buildup on knees, heels, and toes;
          Osteoarthritis;
          Fibromyalgia;
          Diseased sublingual/submaxillary glands in left side of neck 
        which were surgically removed;
          Heart disease, including arrhythmia;
          Chronic fevers and swelling of lymph nodes with flu like 
        symptoms;
          Chronic cystitis and nephritis;
          Right ovarian cysts and removal of right ovary;
          Multiple hemangiomas in liver . . . On June 4, 2003 had giant 
        hemangiomas and one-fifth of liver removed . . . diagnosed with 
        NAFLD (Nonalcoholic fatty liver disease);
          Severe tremors, speech difficulty;
          Eating disorder;
          Sleep disorder;
          Night sweats;
          Restless Leg Syndrome;
          Depression;
          Anxiety and panic attack syndrome;
          Gallbladder removed;
          Fibroid tumor in left breast was biopsies for cancer;
          Abdominal hysterectomy due to chronic endometritus and 
        multiple fibroid tumors;
          Pancreatitis;
          Hyperlipidemia;
          Type II diabetes;
          Metabolic syndrome;
          Thyroid disease with multiple nodules in neck;
          Neuropathy;
          Severe memory loss;
          Cluster migraines;
          Auto-immune disorder;
          Chronic Epstein-Barre virus;
          Chronic Fatigue Immune Deficiency Syndrome;
          Hyadal hernia with GERD;
          Tested positive on bladder cancer tumor antigen test;
          Tested positive on one blood hemicult test for colon cancer;
          Daily flushing of ears, face, and neck;
          Intestinal problems.

    My days are still filled with doctor appointments, medical testing, 
and physical therapy and I, liked thousands of other nuclear workers 
have become totally discouraged with the way DOE has handled their 
responsibilities. There has been a total disregard for these sick cold-
war veterans who gave so much for their country and have received 
nothing but mere excuses from the Department of Energy as to why they 
have not been helped yet, why their claim has been denied, or why DOE 
needs more funding and more time to handle these claims. The Department 
of Energy has had the money and the time to implement and make this 
program work and yet continues to disregard the rights of citizens in 
this nation and their rights as cold-war veterans whose lives have been 
changed forever.
    I wish to thank you for taking the time to read my testimony. My 
continuing prayers are that this administration will see that DOE is 
held accountable for their failures to make this program work as was 
intended, and that these families will be given the immediate attention 
and help they so badly need and deserve. Time is not on our side. We 
appreciate any and all help you can give us.
            Sincerely,
                                        Janine L. Anderson.
                                 ______
                                 
     Statement of Sylvia M. Carlsson, Widow/Survivor, Anchorage, AK
    I was one of the first Alaskans to receive a positive Subtitle D 
Physicians Panel Determination from the U.S. Department of Energy, 
Office of Worker Advocacy (DOE). I am a widow/survivor. My husband was 
a shaft miner on Project Cannikin at Amchitka Island from 1970 through 
1971. He was exposed to ionizing radiation in the course of his 
employment with Kiewit-Centennial, a prime contractor of the Atomic 
Energy Commission, now DOE. He was 32 years old at time of exposure. He 
died before his 41st birthday in 1979 of colon cancer.
    I filed a claim for workers compensation under the Alaska Workers 
Compensation System as suggested in the April 16, 2003, Determination 
letter from Beverly Cook, DOE Assistant Secretary. I was assured that 
the contractor would be notified and asked to accept primary liability 
for my claim and would also be asked not to raise any affirmative 
defenses in my case. The exact opposite of DOE's letter and 
determination occurred. My workers compensation claim is being 
aggressively opposed by two different attorneys representing two 
different insurance carriers, the contractor and adjusters. I requested 
information from DOE Secretary Abraham about DOE's not contacting the 
contractor. I did not receive an answer to my inquiry. I was informed 
six months after my inquiry via e-mail from Tom Rollow, Director, 
Office of Worker Advocacy, that his office would not be able to give 
further assistance. He did not mention the Willing Payer issue at all.
    Governor Frank Murkowski requested that DOE Secretary Abraham find 
an immediate solution to the problem of the lack of a Willing Payer. 
Governor Murkowski's May 2003 letter has yet to be answered. Since 
then, Alaska's Senator Lisa Murkowski and Congressman Don Young have 
written individual letters requesting that DOE address the Willing 
Payer issue. Alaska's Comissioner of Labor, Glenn O'Cleary; Alaska's 
Senator, Con Bunde, Chairman of Labor and Workforce Committee, also 
wrote letters requesting that the Willing Payer issue be addressed in 
order to assist Amchitka workers in their claims before the Alaska 
Workers Compensation Board. None of those inquiries have been answered 
to my knowledge.
    In the meantime, I have spent countless hours in depositions, pre-
hearing conferences, hearings, and meetings in defense of my workers 
compensation claim. I have also had to meet demands from opposing 
attorneys for volumes of documents which has imposed a financial burden 
on me.
    The affirmative defenses raised by opposing attorneys include: 1) 
is Kiewit-Centennial (the contractor) entitled to an offset to any 
amounts recovered by me (the claimant) under the EEOICPA; and 2) Does 
the release I signed under Subtitle B in the federal arena bar recovery 
under state workers' compensation. If the Alaska Workers Compensation 
Board rules in my favor, I have been assured that the opposing 
attorneys fully intend to appeal the decisions to Alaska's Supreme 
Court, thus tying up my claim for at least two to four years.
    The merits of my case will be heard sometime in 2004 when opposing 
attorneys give up their game of petitioning the AWCB for continuances. 
So far, they have been successful in two continuances so I am uncertain 
whether or not my claim will be heard anytime soon.
    Opposing attorneys in my case have retained medical experts to 
counter DOE's Subtitle D Physician Panel Determination. Fred A. 
Mettler, Jr., MD, MPH, Professor Emeritus from the University of New 
Mexico School of Medicine and John R. Frazier, PhD, CHP with Auxier and 
Associates will be testifying against my claim. I am told, 
incidentally, that Dr. Frazier is a senior analyst with Auxier and 
Associates, which has a contract with NIOSH to do site profiles under 
the EEOICPA. I have made inquires of NIOSH about this very obvious 
conflict of interest but have had no response.
    Since January 2003, nine former Amchitka workers have died, all of 
cancer and none, to my knowledge, having received benefits under 
Subtitle D of the EEOICPA. The tragedy is that many more will follow. I 
am aware of at least 150 claimants who are awaiting responses from DOE. 
Opposing attorneys are not even waiting for those claimants to receive 
a Physician's Panel Determination. A number of Amchitka claimants have 
been receiving demands for medical records, for social security 
records, for other information and many of those claimants are very ill 
and unable to respond.
    Over 90 days ago, seven Amchitka claimants were told by DOE that 
they would be receiving their Physician Panel Determinations within a 
few days. Since then, DOE has told each a different story, i.e., the 
physician doing the determination is ill; the physician reviewing your 
case died; the person handling your case went on vacation and we can't 
find your records. I would like to reiterate that nearly all the 
Amchitka claimants are ill with cancer, many unable to even make 
inquiries about the status of their claims and all are becoming 
completely stressed by the tactics used by the opposing attorneys.
    Had DOE been honest and forthcoming in its communications with 
claimants, we would not be having the problerns we are having now. In 
October 2002, Beverly Cook came to Anchorage and met with over 150 
claimants. She was explicit in her statement that she would have no 
problem in ``reaching out and touching contractors'' in order to ensure 
payment of the Subtitle D applications once a positive physician's 
panel determination had been rendered. In addition to making this 
announcement, she met with individual claimants and made the same 
promise. She did not retract that public announcement and has not 
responded to any inquiry regarding the Willing Payer issue. In my 
opinion, she harmed claimants by making such statements. Many believed 
her and now those claimants are having to fight opposing attorneys, 
some without the benefit of counsel.
    In direct contrast to DOE's lack of performance under the EEOICPA, 
the Department of Labor has managed its obligations under Subtitle B 
with professionalism, sensitivity and rapid response. For example, the 
Department of Labor became aware that Amchitka workers were 
experiencing problems with the medical cards it had issued to some of 
the claimants. DOL sent two of its staffers to Anchorage to resolve the 
problems.
    In addition, when the DOL Director was informed that opposing 
attorneys in my case were raising affirmative defenses that involved 
Subtitle B payments, he offered to send his legal counsel to Anchorage 
for the hearing. The law is quite clear that Subtitle B payments are 
not considered offsets; however, opposing attorneys in my case are 
pressing the issue. DOL representatives have not only been responsive 
to claimants, but unlike DOE representatives, they have been honest and 
willing to assist wherever they can. Had DOL been given the 
responsibility for implementing the EEOICPA including processing of 
claims and resolving the Willing Payer issue, we would not be talking 
about the problems right now.
    It is ironic that many are being compensated by the EEOICPA 
including the Science and Engineering Associates (SEA); the C2 Lobbying 
group; the staff of the Office of Worker Advocacy at DOE; medical 
consultants Fred Mettler and John Frazier; at least nine attorneys in 
Alaska and possibly 10 times that many across the nation; and many 
others. But those for whom the legislation was written are not being 
compensated because of the poor performance by DOE.
    I am requesting that this committee undo the harm that is being 
done to EEOICPA Subtitle D claimants, not only to those in Alaska but 
elsewhere by taking action to either demand that DOE fulfill its 
obligations without delay under the EEOICPA or relinquish the program 
to another agency that can do the job.

                                    

      
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