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Energy contractor employee or an atomic weapons employee may elect to
~ have the Secretary of Labor determine whether such employee’s cancer
was at least as likely as not related to employment, pursuant to section

3623(b) of this Act, based upon actual records of the radiation dose

received by that employee furnished by the Secretary of Energy or upon an

estimate of the radiation dose determined pursuant to this section.

“(2) Such an election shall be made in accordance with procedures
set forth by the Secretary of Labor and shall be irrevocable. An election
made by a covered employee or survivor under this section is binding on
all survivors of the covered employee.

“(3) The Secretary of Labor, in consultation with the Secretary of

” Health and Human Services, shall specify in regulations the manner in
which a claimant may request that an estimate of an employee’s radiation
dose be calculated.

“(b) INITIAL SCREENING.—Upon receipt of a request for a calculation
of an estimate of the radiation dose received by an employee, the Secretary of
Labor shall determine whether:

“(1) the claimant filed a timely claim; and

“(2) the employee at issue is an individual specified in section

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“(b) EMPLOYEE.— In applying any provision of chapter 81 of title 5,
United States Code (except section 8101), under this title, the term ‘employee’
in such provision shall mean a covered employee.

“(c) EMPLOYEES COMPENSATION FUND.—In applying any
provision of chapter 81 of title 5, United States Code, under this Act, the term
‘Employees Compensation Fund’ in such provision shall mean the ‘Energy
Employees Occupational Iliness Compensation Fund’.” .

TITLE Il TECHNICAL AND CONFORMING AMENDMENTS
SEC. 201 CONFORMING AMENDMENTS.

(a) DELEGATION.— Section 3611(a) of the EEOICPA is amended by
striking the second sentence.

(bo) ELIGIBILITY.— Section 3611 of the EEOICPA is amended by
striking subsection (c).

(c) COVERED BERYLLIUM EMPLOYEE.— Section 3621(7) of the
EEOICPA is amended by striking “, if and only if the employee is determined
to have been exposed to beryllium in the performance of duty in accordance
with section 3623(a)” .

(d) COVERED BERYLLIUM ILLNESS.— Section 3621(8)(A) of the
EEOICPA is amended by inserting “or by other means designated by the
Secretary of Health and Human Services pursuant to section 3622 of this Act”
after “cells”.

(e) CHRONIC BERYLLIUM DISEASE.— Section 3621(8)(B) of the
EEOICPA is amended by striking “Established chronic” and inserting
“Chronic”.

(f) COVERED EMPLOYEE WITH CANCER.—Section 3621(9)(B) of
the EEOICPA is amended to read as follows:

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same cancer (including a specified cancer), toxic illness, or death from another
Federal workers' compensation system shall elect which such benefits to
Teceive.

“(b) ELECTION.— The individual shall make the election within the
time allowed by the Secretary of Labor. The election when made is irrevocable
and binding on all survivors of that individual.

“(c) COORDINATION.— An individual who has been awarded
compensation under this Act and who also has received benefits from another
Federal workers’ compensation system because of the same cancer (including a
specified cancer), toxic illness, or death, shall receive compensation as specified
under this Act reduced by the amount of any workers' compensation benefits
attributable to the period subsequent to the effective date of this Act that the
individual has received under the other Federal workers’ compensation system
as a result of the cancer (including a specified cancer), toxic illness, or death.
“SEC. 3646. DUAL COMPENSATION - OTHER EMPLOYEES. .

“An individual entitled to receive compensation under this Act because of
a cancer (including a specified cancer), toxic illness, or death covered by this Act
of a covered employee, who also is entitled to receive from the United States
under a provision of a statute other than this Act payments or benefits for that
injury, illness or death (except proceeds of an insurance policy), because of
service by such employee (or in the case of death, by the deceased) as an
employee or in the armed forces, shall elect which benefits to receive. The
individual shall make the election within the time allowed by the Secretary of
Labor. The election when made is irrevocable, except as otherwise provided by
statute.

“SEC. 3647. RECEIPT OF BENEFITS - OTHER STATUTES.
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for an atomic weapons employer.” .

(n) GUIDELINES.— Section 3623(c) of the EEOICPA is amended by—

(1) in paragraph (1), striking “President” and inserting

“Secretary of Health and Human Services” ; and

(2) amending paragraph (2) to read as follows:

“(2) The Secretary of Health and Human Services shall establish
such guidelines after consultation with the Secretary of Energy and after
technical review by the Advisory Board on Radiation and Worker
Health.” .

(0) INFORMATION.—Section 3623(e) of the EEOICPA is amended
by striking paragraph (1) and “(2)”.

(p) CHRONIC RENAL DISEASE.— Section 3624(b) of the EEOICPA
is amended by striking “and” the third time it appears, striking “(3)” and
inserting “(4)”, and inserting after paragraph (2) the following new paragraph:

“(3) whether this Act should be amended to provide benefits for chronic
renal disease; and” .

(q) PNEUMOCONIOSES.— Section 3627(e)(2)(A) of the EEOJCPA is
amended by striking “pneumoconioses of category 1/1 or higher” and inserting
“pneumoconioses of category 1/0 or higher”.

(t) MEDICAL DOCUMENTATION.— Section 3627 of the EEOICPA
is amended by adding a new subsection (f) at the end as follows:

“(f) MEDICAL DOCUMENTATION.— Claimants seeking benefits
under this Act for the disease specified in subsection (e) of this section shall be .
reimbursed from the compensation fund for reasonable diagnostic medical

expenses incurred by them in establishing their claims.”.

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“(A) from a toxic illness of a covered employee who was

-exposed to a toxic substance while in the performance of duty as

determined in accordance with section 3623(a) or 3627(c) of this
Act; and

“(B) from cancer of a covered employee with cancer who
is determined to have sustained that cancer in the performance of
duty in accordance with section 3623(b) of this Act or from any

" injury suffered as a consequence of that cancer;

“(2) shall furnish the services and other benefits specified in

section 8103 of title 5, United States Code, to—

“(A) a covered employee with a toxic illness who was
exposed to a toxic substance in the performance of duty as
determined in accordance with section 3623(a) or 3627(c) of this
Act; and

“(B) acovered employee with cancer who is determined
to have sustained that cancer in the performance of duty in
accordance with section 3623(b) of this Act or to have suffered
any injury as a consequence of that cancer; and
“(3) may direct a permanently disabled individual whose

disability is compensable under this Act to undergo vocational
rehabilitation and shall provide for furnishing such vocational
rehabilitation services pursuant to the provisions of sections 8104,
8111(b), and 8113(b) of title 5, United States Code.

“(b) LIMITATIONS ON COMPENSATION.—

“(1) No compensation or benefits may be paid or provided under

this Act for a cancer (including a specified cancer), a toxic illness, or

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The effective date of this Act is the later of July 31, 2001, or the date of
enactment of this Act.

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contractor or subcontractor of the Department of Energy, to compel the

production of information or documents requested by the Secretary of

Labor under this Act if such information or documents are not provided

within 180 days of the date of the request. Upon successful resolution

of any action brought under this paragraph, the court shal! award the

claimant reasonable attorney fees and costs to be paid by the defendant

in such action.

“(d) EVIDENCE IN EQUIPOISE.— Except as provided in subsection
(b)(2), in determining whether a claimant meets the requirements of this Act,
the Secretary of Labor shall find in favor of the claimant in circumstances
where the evidence supporting the claim of the claimant and the evidence
controverting the claim of the claimant is in equipoise.

“(e) RECONSIDERATION BASED ON NEW CRITERIA OR
EVIDENCE.—

“(1) A claimant may obtain reconsideration of a decision
awarding or denying coverage under this Act within one year after the
effective date of regulations setting forth— :

“(A) new criteria for establishing a covered beryllium
illness pursuant to section 3622(c) of this Act, or
“() additional or revised methods for determining
whether a cancer was at least as likely as not related to
employment pursuant to section 3623(c) of this Act
by submitting evidence that is relevant and pertinent to the new
regulations.

“(2) A claimant may obtain reconsideration of a decision

awarding or denying benefits under this Act within 90 days of receiving
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“(B) An individual specified in clauses (i), (ii), or (iii):

“(i) A Department of Energy employee who contracted
cancer after beginning employment at a Department of Energy
facility.

“Gi) A Department of Energy contractor employee who
contracted cancer after beginning employment at a Department of
Energy facility.

. “(ii) An atomic weapons employee who contracted cancer
after beginning employment at an atomic weapons employer
facility.”.

(g) BERYLLIUM DISEASE.— Section 3621(13) of the EEOICPA is
amended by striking “established” the first time it appears and by inserting a
new subparagraph at the end as follows:

“(C) Other means designated by the Secretary of Health and

Human Services pursuant to section 3622 of this Act.”.

(h) GASEOUS DIFFUSION PLANT.— Subsection 3621(14)(A) of the

EEOICPA is amended by striking “a gaseous diffusion plant” and replacing it
with “one or more of the gaseous diffusion plants” .

@ SPECIAL EXPOSURE COHORT.—Section 3621(14)(C) of the
EEOICPA is amended by striking “President” each time it appears and
inserting “Secretary of Health and Human Services” .

@j) RADIATION.— Section 3621(15) of the EEOICPA is deleted.

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New section 3641 would provide that any compensation or benefits allowed, paid, or
provided under EEOICPA: (1) be considered as paid under a workers' compensation law
for the purposes of exclusion from gross income and wages under sections 104(a)(1),
3121(a)(2), and 3306(b)(2) of the Internal Revenue Code; (2) not be included as income
or resources for purposes of determining eligibility to receive benefits described in
section 3803(c)(2)(C) of title 31, United States Code, or the amount of those benefits; (3)
not be subject to offset under chapter 37 of title 31, United States Code; (4) not be
considered as either a form of compensation or as reimbursement for a loss that would
make the individual who receives the compensation liable to repay an insurance carrier
for insurance payments; and (5) not be treated as affecting any claim against an insurance
carrier with respect to insurance. In addition, this section would provide that claims not
be assigned or attached. Moreover, if a federal employee found to be disabled under
EEOICPA resumes employment with the federal government, the employee would be
entitled to the rights set forth in section 8151 of title 5, United States Code.

New section 3642 would set forth circumstances under which convicted felons and their
dependents would forfeit compensation under EEQICPA.

New section 3643 would establish limitations on the right to receive benefits under
EEOICPA.

New section 3644 would provide for the coordination of benefits under state workers’
compensation programs and benefits under EEOICPA. An individual must elect to
receive either state workers’ compensation benefits or compensation under EEOICPA.
When workers’ compensation benefits have been secured by a private insurance carrier,
the Secretary of Labor may waive the election and enable the claimant to obtain more of
his or her recovery under the state system.

New section 3645 would provide for the coordination of benefits under federal workers’
compensation system and benefits under EEOICPA. An individual must elect to receive
either Federal Employees’ Compensation Act benefits or compensation under EEOICPA.

New section 3646 would require an individual to elect which benefits to receive if the
individual is entitled to receive both compensation under EEOICPA for an illness or
death of a covered employee and also benefits (except proceeds of an insurance policy)
from the United States for the same illness or death under another statute whose benefits
are provided because the employee served as an employee or a member of the armed
forces.

New section 3647 would provide that, except to the extent specified in section 3630, an
individual may not receive compensation under EEOICPA for cancer and also receive
compensation under the Radiation Exposure Compensation Act as a result of the same
cancer.


CON A HW bk WN

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employee, except for compensation provided under the authority of section
8103(b) of title 5, United States Code, such survivor shall not receive
compensation for any other claim under this Act derived from the same covered
employee. A survivor of a claimant who receives compensation for any claim
under this Act, except for compensation provided under the authority of section
8103(b) of title 5, United States Code, shall not receive compensation for any
other claim under this Act derived from the same covered employee.

“(c) WIDOW OR WIDOWER.--A widow or widower who is eligible
for benefits under this Act derived from more than one husband or wife shall
elect one benefit to receive.

“SEC. 3644. COORDINATION OF BENEFITS - STATE WORKERS’
COMPENSATION.

“(a) IN GENERAL.— An individual who is eligible to receive
compensation under this Act, because of a cancer (including a specified cancer)
or a toxic illness, or death and who is also entitled to receive benefits because of
the same cancer (including a specified cancer), toxic illness, or death from a
State workers’ compensation system shall elect which benefits to receive, unless-

“(1) at the time of injury, workers' compensation coverage for
the employee was secured by a policy or.contract of insurance; and

“(2) the Secretary of Labor waives the requirement to make such
an election.

“(b) ELECTION.—The individual shall make the election within the
time allowed by the Secretary of Labor. The election when made is irrevocable
and binding on all survivors of that individual.

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3621(9)(B) of this Act.

If the Secretary of Labor determines that a claim meets those requirements, the
Secretary of Labor shall forward to the Secretary of Health and Human Services a
request that an estimate of the radiation dose received by the relevant employee be
calculated.

“(c) APPEAL OF INITIAL SCREENING DETERMINATION.—A
claimant whose claim is determined not to meet the criteria set forth in subsection
(b) of this section may appeal that determination to the Energy Employees
Review Panel pursuant to the procedures set forth in section 3635 of this Act.

“(d) CALCULATION.—Upon receipt of a request from the Secretary of
Labor, pursuant to section 3634(b) of this Act, for the preparation of an estimate
of the radiation dose received by an employee, the Secretary of Health and Human
Services shall calculate an estimate of the radiation dose received by such
employee, pursuant to the methods established pursuant to section 3623(d) of this
Act, and shall transmit the calculation to the claimant.

“(e) RECONSIDERATION.—A claimant may obtain reconsideration of
the calculation of an estimate of the radiation dose received by such employee if
the claimant provides to the Secretary of Health and Human Services new

evidence that:

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Panel sitting en banc of a decision of a group of three members.

“(e) PROCEEDINGS BEFORE THE PANEL.—

“(1)(A) Notwithstanding section 3636(a)(1), a person who receives
a radiation dose estimate calculation by the Secretary of Health and
Human Services pursuant to section 3633(d) may file and serve a petition
for review by the Panel of such calculation within 60 days after receipt of
the calculation.

“(B) Notwithstanding section 3636(a)(2), any person adversely
affected or aggrieved by a final decision of the Secretary of Labor in
issuing determinations and awards with respect to claims filed pursuant to
this Act may file and serve a petition for review by the Panel of such
decision within 60 days after the issuance of such decision.

“(2) Petitions for review shall specify the issue or issues upon
which such review is sought.

“(3) Each issue shall be separately numbered and plainly and
concisely stated, and shall be supported by detailed citations to the
decision for which review is sought and any relevant evidence entered into
the record prior to issuance of that decision.

“(4) The jurisdiction of the Panel is limited to review of

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“(A) considering the claim presented by the claimant, the
results of any medical test or diagnosis undertaken to establish
the existence of a cancer (including a specified cancer) or a toxic
illness, and any report furnished by the Secretary of Energy or
the Secretary of Health and Human Services with respect to the
claim; and

“(B) completing such investigation as the Secretary of
Labor considers necessary.

“(2) The Secretary may allow or deny a claim, in whole or in
part.

“(b) AVAILABLE AUTHORITIES.—

“(1) Except as provided in paragraph (2), in carrying out
activities under this Act, the Secretary of Labor may utilize the
authorities available to the Secretary under sections 8123, 8124(b),
8125, 8126, 8128(a), and 8129 of title 5, United States Code.

“(2) If there is a disagreement under section 8123(a) of title 5,
United States Code, between the physician making the examination for
the United States and the physician of the employee, the Secretary of
Labor shall appoint a third physician from a roster of physicians with
relevant expertise maintained by the Secretary of Health and Human
Services.

“(c) RIGHTS OF CLAIMANT.—

“(1) Except as provided by paragraph (2), the provisions of
section 8127 of title 5, United States Code, shall apply.

“(2) A claimant may commence an action in the appropriate
district court of the United States against a beryllium vendor, or other

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“(©) COORDINATION.— Except as provided in paragraph (d), an
individual who has been awarded compensation under this Act and who also has
Teceived benefits from a State workers’ compensation system because of the
same cancer (including a specified cancer), toxic illness, or death, shall receive
compensation as specified under this Act reduced by the amount of any
workers’ compensation benefits that the individual has received under the State
workers’ compensation system as a result of the cancer (including a specified
cancer), toxic illness, or death attributable to the period subsequent to the
effective date of this Act, after deducting the reasonable costs, as determined by
the Secretary of Labor, of obtaining benefits under the State workers’
compensation system. ,

“@ WAIVER.— An individual described in paragraph (a) who has also
received, under paragraph (a)(2), a waiver of the requirement to elect between
compensation under this Act and benefits under a State workers’ compensation
system shall receive compensation as specified in this Act for the cancer
(including a specified cancer), toxic illness, or death, reduced by eighty percent
of the net amount of any workers' compensation benefits that the claimant has
received under a State workers' compensation system attributable to the period
subsequent to the effective date of this Act, after deducting the reasonable costs,
as determined by the Secretary of Labor, of obtaining benefits under the State
workers’ compensation system.

“SEC. 3645. COORDINATION OF BENEFITS - FEDERAL WORKERS’
COMPENSATION.

“(a) IN GENERAL.—An individual who is eligible to receive
compensation under this Act because of a cancer (including a specified cancer),
toxic illness, or death and who is also entitled to receive benefits because of the

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“(2) The right to make an election and to receive compensation
under this section shall be afforded to survivors in the order of
precedence set forth in section 8109 of title 5, United States Code.

“@ TIME LIMIT FOR ELECTION.— An election under this section
may be made at any time after the submittal under this Act of the claim on
which such compensation is based, but not later than 30 days after the later of
the date of—

“(1) a determination by the Secretary of Labor that an employee
is eligible for an award under this section; or

“(2) a determination by the Secretary of Labor under section
3628 of this Act awarding an employee or an employee’s survivors
compensation for total or partial disability or compensation in case of ©
death.

“(e) IRREVOCABILITY OF ELECTION.—

“(1) An election under this section when made is irrevocable.

“(2) An election made by a covered employee or survivor under
this section is binding on all survivors of the covered employee.” .

(c) CLAIM ADMINISTRATION AND REVIEW.— Subtitle B of the
EEOICPA is amended by adding, at the end thereof, new sections 3632 ~ 3636
as follows:

“SEC. 3632. SUBMITTAL OF CLAIMS.

“(a) CLAIM REQUIRED.—A claim for compensation under this Act
shall be submitted to the Secretary of Labor in the manner specified in section
8121 of title 5, United States Code.

“(b) GENERAL TIME LIMITATIONS.—A claim for compensation
under this Act shall be filed under this section not later than the later of-

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A BILL

To provide compensation and benefits to Department of Energy Federal and

contractor employees for exposure to certain toxic substances, and for other

purposes.
Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS

(a) SHORT TITLE.— This Act may be cited as the “Energy Employees
Occupational IlIness Compensation Amendments of 2001” .

(b) TABLE OF CONTENTS.— The table of contents of this Act is as .

follows:

Sec. 1. Short title; Table of Contents.
Sec. 2. Findings.

TITLE I-COMPENSATION PROGRAM

Sec. 101. Appropriations and compensation fund.

Sec. 102. Exposure in the performance of duty.

Sec. 103. Designation of additional members of Special
Exposure Cohort.

Sec. 104. Compensation program.

Sec. 105. General provisions.

TITLE Hf -TECHNICAL AND CONFORMING
AMENDMENTS

Sec. 201. Conforming amendments.

Sec. 202. Technical amendments.

Sec. 203. Amendment to the Radiation Exposure
Compensation Act. :

Sec. 204. Effective date

SEC. 2. FINDINGS.


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receiving the compensation or benefits to repay any insurance carrier for
insurance payments made.

“(2) The payment or provision of compensation or benefits under this
Act shall not be treated as affecting any claim against an insurance carrier with
respect to insurance.

“(c) PROHIBITION ON ASSIGNMENT OR ATTACHMENT OF
CLAIMS.— The provisions of section 8130 of title 5, United States Code, shall
apply to claims and compensation under this Act.

’ “(@) RETENTION OF CIVIL SERVICE RIGHTS.—If a Federal
employee found to be disabled under this Act resumes employment with the
Federal government, the employee shall be entitled to the rights set forth in
section 8151 of title 5, United States Code.

“SEC. 3642. FORFEITURE OF BENEFITS BY CONVICTED FELONS.

“(a) FORFEIT COMPENSATION.— Any individual convicted of a
violation of section 1920 of title 18, or any other Federal or State criminal
statute relating to fraud in the application for or receipt of any benefit under this
Act or under any other Federal or State workers’ compensation law, shall forfeit
(as of the date of such conviction) any entitlement to any benefit under this Act
such individual would otherwise be awarded for any injury, illness or death
covered by this Act for which the time of injury was on or before the date of the
conviction. This forfeiture shall be in addition to any action the Secretary of
Labor takes under sections 8106 or 8129 of title 5, United States Code.

“(b) DEPENDENTS.— (1) Notwithstanding any other provision of
law, except as provided under paragraph (2), compensation under this Act shall
not be paid or provided to an individual during any period during which such
individual is confined in a jail, prison, or other penal institution or correctional

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“(E) aclaimant was not entitled to compensation pursuant
to section 3630(a) of this Act

may obtain a review of that order in any United States Court of Appeals specified
in subsection (d) of this section. The Secretary of Labor shall have the power to
petition any United States Court of Appeals specified in subsection (d) of this
section to review any order of the Energy Employees Review Panel specified in
subsection (b) of this section, and to raise any legal argument, notwithstanding
subsection (e) of this section.

“(c) PROCEDURE.—In order to obtain such review, the Secretary of
Labor or an individual adversely affected or aggrieved by a final order of the
Energy Employees Review Panel must file a written petition praying that the
order be modified or set aside in such court within 60 days following the issuance
of such order. A copy of such petition shall be forthwith transmitted by the clerk
of the court to the Energy Employees Review Panel and to the Secretary of Labor
and thereupon the Energy Employees Review Panel shall file in the court the
record in the proceedings as provided in section 2112 of title 28, United States
Code. Upon filing of a petition for review, the court shall have jurisdiction over
the proceeding and shall have the power to give a decree affirming, modifying, or

setting aside, in whole or part, the order of the Energy Employees Review Panel

21


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provision concerning legislative modification of EEOICPA.

Subsection (c) would amend section 3621(7) to strike a redundant phrase in the definition of
“covered beryllium employee.”

Subsection (d) would amend section 3621(8) to permit the Secretary of Health and Human
Services to provide another method for determining whether an employee has beryllium
sensitivity besides the one specified in the section.

Subsection (e) would delete an unnecessary word from section 3621(8), the definition of
“covered beryllium illness.”

Subsection (f) would amend section 3621(9)(B) to simplify the wording of the definition of
“covered employee with cancer.”

Subsection (g) would amend section 3621(13) to eliminate an unnecessary word and permit the
Secretary of Health and Human Services to provide another method for determining whether an
employee has chronic beryllium disease.

Subsection (h) would amend section 3621(14)(A) to clarify that an employee can meet the 250-
day requirement by working in more than one gaseous diffusion plant.

Subsection (i) would amend section 3621 (14)(C) to assign to the Secretary of Health and Human
Services certain duties related to the Special Exposure Cohort.

s

Subsection (j) would amend section 3621 to delete the definition of “occupational illness”
because the definition no longer is necessary in the amended EEOICPA.

Subsection (k) would redesignate the last paragraphs in section 3621 and add new paragraphs
containing definitions that would: (1) clarify that terms defined in certain sections of the Federal
Employees Compensation Act have the meaning given those terms in that statute when used in
EEOICPA and (2) define “time of injury,” “toxic illness,” “toxic substance,” and
“compensation.”

Subsection (1) would amend section 3622 of EEOICPA to allow the Secretary of Energy to
designate an entity as an atomic weapons employer and the Secretary of Health and Human
Services, in consultation with the Secretary of Energy, to specify additional means of
establishing the existence of a covered beryllium illness.

Subsection (m) would amend section 3623(b) of EEOICPA to simplify the language regarding
exposure in performance of duty in relation to contracting cancer. ~

Subsection (n) would amend section 3623(c)(1) of EEOICPA to make the Secretary of Health


New section 3648 would make minor stylistic changes to section 3644 of EEOICPA,
which provides that the only method for recovering from the United States.or a
Department of Energy contractor for a condition covered by EEOICPA would be under
EEOICPA. An individual would not be able to recover from the United States or a
Department of Energy contractor through a lawsuit.

New section 3649(a) would make minor stylistic changes to section 3643 of EEOICPA,
which provides that the acceptance by an individual of payment of compensation under
EEOICPA with respect to a covered employee shall be in full satisfaction of all claims of
or on behalf of that individual against the United States, a Department of Energy
contractor or subcontractor, a beryllium vendor, an atomic weapons employer, or any
person with respect to that entity or person’s performance of a contract with the United
States that arises out of the same harmful exposure. A new subsection (b) provides that
subsection (a) does not apply to an administrative or judicial proceeding under a State or
Federal workers' compensation statute. The amendment of subtitle C of EEOICPA would
eliminate section 3645 of EEOICPA, which provides for election of remedy for beryllium
employees and atomic weapons employees under certain conditions.

New section 3650 would subrogate the United States to a claim that an individual who
receives compensation under EEOICPA may have against a person other than the United
States for the illness or death for which the compensation was received. In addition, for
the purposes of this Act, the provision in section 8131 of title 5, United States Code, that
provides that an employee who is required to appear as a party or witness in the
prosecution of an action described in that section is in an active duty status while so
engaged, applies only to a Federal employee.

New section 3651 would provide that: (1) references in EEOICPA to a provision of
another statute will be considered as references to that provision, as amended and as may
be amended from time to time and (2) in applying a provision of chapter 81 of title 5,
United States Code (except section 8101) under EEOICPA, the term “employee” in the
provision means a covered employee and the term “Employees Compensation Fund”
means the “Energy Employees Occupational Illness Compensation Fund.”

Title 1-Technical and Conforming Amendments

SECTION 201. CONFORMING AMENDMENTS

Subsection (a) would amend section 3611(a) of EEOICPA to eliminate a sentence requiring the
President to carry out the compensation program through a federal agency. Other amendments
assign particular agencies responsibility for carrying out various parts of the program.

Subsection (b) would delete subsection 3611(c) of EEOICPA, eliminating an unnecessary


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“(1) seven years after the effective date of this Act;

“(2) seven years after the date the claimant first becomes aware
or should have become aware that a cancer (including a specified
cancer), toxic iliness, or death from any of the foregoing of a covered
employee may be connected to the exposure of the covered employee to
radiation or a toxic substance in the performance of duty; or

“(3) in the case of a claim for benefits based upon an award
under section 5 of the Radiation Exposure Compensation Act, the later
of seven years after the date of that award or seven years after the
effective date of this Act.

“(c) NEW PERIOD FOR ADDITIONAL ILLNESSES AND
CONDITIONS. — A new period of limitation under subsection (b) shall
commence with each new diagnosis of a cancer (including a specified cancer) or
a toxic iliness that is different from a previously diagnosed cancer (including a
specified cancer) or toxic illness.

“d) DEATH CLAIM.—The timely filing of a disability claim for a
cancer (including a specified cancer) or a toxic illness shall satisfy the time
requirements of this section for death benefits for the same cancer (including a
specified cancer) or toxic illness.

“SEC. 3633. INITIAL SCREENING AND PROCEDURE FOR DOSE

RECONSTRUCTION.
“(a) REQUEST. —
“(1) A claimant seeking benefits under this Act based upon a

cancer sustained by a Department of Energy employee, a Department of

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SECTION 204, EFFECTIVE DATE

This section provides that the effective date of the Act is the later of July 31, 2001, or the date
of its enactment.


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a new estimate, pursuant to section 3633(e) of this Act, of the radiation

dose received by an employee.

“(f) REGULATORY AUTHORITY .— Except as otherwise provided in
this Act, the Secretary of Labor may prescribe regulations necessary for the
administration and enforcement of this Act.

“SEC. 3635. ENERGY EMPLOYEES REVIEW PANEL.

“(a) ESTABLISHMENT--The Energy Employees Review Panel is hereby
established in the Executive Branch of the United States. The Panel shall consist
of not Jess than three nor more than five members and such additional temporary
members as the President determines are necessary, appointed by the President,
with the advice and consent of the Senate, from among persons who by reason of
training, education, or experience are qualified to carry out the functions of the
Panel under this Act. The President shall designate one of the members of the
Panel to serve as Chairman. The Chairman, members and employees of the Panel
shall be considered ‘employees’ within the meaning of section 2105 of title 5,
United States Code.

“(b) TERMS AND PERSONNEL.—The terms of the members of the
Panel shall be six years, except that —

“(1) members of the Panel first taking office after the effective

date of this title, shall serve, as designated by the President at the time of

16


January 11, 2001

The Honorable J. Dennis Hastert
Speaker of the House

of Representatives
Washington, DC 20515

Dear Mr. Speaker:

Enclosed for consideration of the Congress is proposed legislation to implement the Energy
Employees Occupational Iliness Compensation Program Act of 2000.

Under the Atomic Energy Act of 1954 (AEA) and the Occupational Safety and Health Act of
1970, the Department of Energy (DOE) is responsible for regulatory oversight of the health and
safety of workers at DOE facilities covered by the AEA. These workers, most of whom were
employees of private contractors, faithfully served the Nation during the Cold War, and in doing _
so, faced risks to their health. In many instances, state programs do not adequately address the
needs of these workers when they incur certain occupational illnesses. Congress began to address
these issues with the passage of the Energy Employees Occupational Iliness Compensation
Program Act of 2000. A number of issues remained, however, including determination of the -

* roles the various responsible agencies would play in administering the program.

President Clinton, by Executive Order 13179 (December 7, 2000), designated the Department of
Labor (DOL) as the lead agency for the new compensation program. He also directed that an
interagency working group, comprised of representatives of DOL, DOE, the Department of
Health and Human Services (HHS), the Department of Justice, and the Office of Management and
Budget (OMB), develop a legislative proposal to ensure the fairness and efficiency of the
program. The enclosed proposal is the result of that effort and addresses the issues left open in
the initial legislation. Our two Departments, along with HHS, willbe primarily responsible for

implementing the Act.

The bill has two titles. Title I contains revisions and clarification to the compensation program as
enacted. Under our legislation, a covered worker can choose to receive wage-loss compensation,
the traditional workers’ compensation remedy, as an alternative to the $150,000 lump sum
payment. Current legislation allows only for a lump sum option. Both alternatives would pay
medical expenses. Other changes in Title I are necessary to effectively administer the program.

* These include specifying agency responsibilities and providing for administrative and/or judicial
review of eligibility and other determinations made in implementing this program. Title II
contains various technical and conforming amendments.

It is important to note that Section 3613(a) of the National Defense Authorization Act for Fiscal
Year 2000 directs the President to submit legislation to Congress to implement the Energy
Employees Occupational Hiness Compensation Program. Section 3613(a) is invalid under the


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President, shall be paid from the compensation fund established under section
3612.

“(e) PROCEDURES REQUIRED.— The Attorney General shall
establish procedures to identify and notify each covered uranium employee, or
the survivor of that covered uranium employee if that employee is deceased, of
the availability of compensation and benefits under this section.” .

(t) CLAIMANTS. — Section 3631of the EEOICPA is amended by—

(1) in subsection (a), striking “President” and inserting
“Secretary of Labor” ;

(2) in subsection (b), striking “President” and inserting
“Secretary of Energy in consultation with the Secretary of Labor”; and

(3) in subsection (c), striking “President” and inserting
“Secretary of Health and Human Services or the Secretary of Labor”.
(u) PANEL.— Subsections (d)(1) and (d)(2)(A) of section 3661 of the

EEOICPA are amended to read as follows:

“(@ PANEL.—

“(1) NUMBER OF PANELS.—The Secretary shall establish
one or more physicians panels to administer this section. The Secretary,
in consultation with the Secretary of Health and Human Services, shall
determine the number of physicians panels appropriate to administer this
section, the number of physicians needed for each panel, and the area of
jurisdiction of each panel.

“(2) APPOINTMENT.

“(A) IN GENERAL.— The Secretary of Health and

Human Services shall nominate panel members with experience

and competency in diagnosing occupational illnesses, and

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(b) COMPENSATION FUND.—Section 3612 of the EEOICPA is
amended by—

(1) amending subsection (b) to read as follows:

“(b) AMOUNTS IN THE COMPENSATION FUND. The compensation
fund shall consist of amounts appropriated to it under section 3614(b).”;

(2) striking subsections (c) and (f) and redesignating subsections

(d) and (e) as (c) and (d) respectively; and :

(3) in new subsection (c), striking “(e)” and inserting “(d)”.
SEC. 102. EXPOSURE IN THE PERFORMANCE OF DUTY.

(a) BERYLLIUM.— Section 3623(a) of the EEOICPA is amended to
tread as follows:

“(a) BERYLLIUM.— (1) In the absence of substantial evidence to the
contrary, a covered beryllium employee specified in section 3621 (7)(A) or (B)
of this Act shall be determined to have been exposed to beryllium in the
performance of duty for the purposes of this Act if, and only if, the covered
beryllium employee was-

“(A) employed at a Department of Energy facility; or

“(B) present at a Department of Energy facility, or a facility
owned and operated by a beryllium vendor, because of employment by
the United States or a contractor or subcontractor of the Department of

Energy;
during a period when beryllium dust, particles, or vapor may have been present
at such facility.

“(2) In the absence of substantial evidence that a covered beryllium
employee specified in section 3621(7)(C) of this Act was never exposed to dust,


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Congress finds that--

(1) The Energy Employees Occupational Illness Compensation Program
Act of 2000, Title XXXVI of the Floyd D. Spence National Defense
Authorization Act for Fiscal Year 2001(P.L. 106-398), established the Energy
Employees Occupational Illness Compensation Program.

(2) Further legislation is required to enact provisions for adjudication of
claims and awarding of benefits.

(3) The provisions of this legislation further the purpose of the Energy
Employees Occupational Iliness Compensation Program Act of 2000, to
establish a science-based compensation program for workers made ill by
exposure to toxic substances uniquely associated with the nuclear weapons
production and testing processes.

TITLE I— COMPENSATION PROGRAM
SEC. 101. APPROPRIATIONS AND COMPENSATION FUND.

(a) APPROPRIATIONS.—Section 3614 of the Energy Employees
Occupational Ilness Compensation Program Act of 2000, Title XXXVI of the
Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 (P.L.
106-398) (hereinafter referred to as “EEOICPA”), is amended to read as follows:
“SEC. 3614. APPROPRIATIONS.

“(a) IN GENERAL.—There is hereby authorized to be appropriated to
remain available until expended such sums as are necessary for administering the
compensation program.

“(b) AMOUNTS IN COMPENSATION FUND. Such sums as may be
necessary to make compensation payments under this Act are hereby appropriated
to the compensation fund established by section 3612.”.


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“(22) The term ‘compensation’ means the money allowance
payable under this Act and any other benefits paid for from the Energy
Employees Occupational Iliness Compensation Fund, including the
alternative compensation payable pursuant to section 3629 of this Act,
and payments made pursuant to section 3630 of this Act.” .

@) ADDITIONAL DESIGNATIONS.—Section 3622 of the EEOICPA

is amended by—

(1) striking the title of the section and inserting “ADDITIONAL
DESIGNATIONS” in its place;
(2) striking “Not” and inserting “(a) BERYLLIUM

VENDORS.— Not” in its place, striking “President” each time it

~ appears and inserting “Secretary of Energy”, striking “in consultation

with the Secretary of Energy;”; and
(3) inserting at the end new subsections (b) and (c) as follows:
“() ATOMIC WEAPONS EMPLOYERS. —The Secretary of
Energy may, from time to time, designate an entity as an atomic
weapons employer for the purposes of this Act if such entity meets the
definition of atomic weapons employer set forth in section 3621(4)(A) of

this Act.

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review of any action or failure to act by the Secretaries of Health and Human
Services or Labor or the Energy Employees Review Panel except as provided this
section.

“(g) REPRESENTATION.—Attomeys appointed by the Secretary of
Labor shall represent the Secretary of Labor in any court proceeding arising out of
this Act except for proceedings in the Supreme Court of the United States.”.

SEC. 105. GENERAL PROVISIONS.

Subtitle C of the EEOICPA is amended to read as follows:

“Subtitle C— Treatment and Coordination of Compensation and Benefits
“SEC. 3641. TREATMENT OF COMPENSATION AND BENEFITS.

“(a) IN GENERAL.— Any compensation or benefits allowed, paid, or
provided under this Act-

“(1) shall be considered paid under a workers' compensation law

” for the purposes of sections 104(a)(1), 3121(a)(2), and 3306(b)(2) of the

Internal Revenue Code;

“(2) shall not be included as income or resources for purposes of
determining eligibility to receive benefits described in section
3803(c)(2){C) of title 31, United States Code, or the amount of those
benefits; and

“(3) shall not be subject to offset under chapter 37 of title 31,
United States Code.

“(b) INSURANCE.— (1) Compensation or benefits paid or provided
under this Act shall not be considered as any form of compensation or
reimbursement for a loss for purposes of imposing liability on an individual

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pursuant to section 3109 of title 5, United States Code, the

Secretary shall appoint the individuals nominated by the

Secretary of Health and Human Services.” . ,
SEC. 202 TECHNICAL AMENDMENTS.

(a) CONFORMING CHANGE.— Section 1920 of title 18 is amended
by inserting in the title “or Energy employee’s” after “Federal employee’s”
and by inserting “or the Energy Employees Occupational Iiness Compensation
Program Act of 2000” after “title 5”.

(b) CONFORMING CHANGE.— Section 1921 of title 18 is amended
by inserting in the title “or Energy employees” after “Federal employees” and
by inserting “or the Energy Employees Occupational Ilness Compensation
Program Act of 2000” after “title 5”.

(c) ERA.— Section 211(a)(1) of the Energy Reorganization Act of 1974
(42 U.S.C. 5851(a)(1)) is amended by-

(1) in subparagraph (B), striking “or”,

(2) in subparagraph (F), striking the period and inserting “; or”,
and

(3) after subparagraph (F) inserting a new subparagraph as
follows:

“(G) filed an application for benefits or assistance under

the Energy Employees Occupational Illness Compensation

Program Act of 2000.” .

(d) OFFICE OF WORKERS’ COMPENSATION ADVOCATE.-—Title
II of the Department of Energy Organization Act (42 U.S.C. 7131, et seq.) is
amended by adding at the end of the title the following:

“OFFICE OF WORKERS’ COMPENSATION ADVOCATE
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and enforcing same to the extent that such order is affirmed or modified. The
order, writs and processes of the court in such proceedings may run, be served and
be returnable anywhere in the United States.

“d) VENUE.—A petition seeking review of an order of the Energy
Employees Review Panel may be filed in the United States Court of Appeals for
any circuit in which the claimant lives at the time of the issuance of the order for
which appeal is sought or for any circuit in which the covered employee at issue is
alleged to have been exposed to hazards in the performance of duty pursuant to
sections 3623 or 3627(c) of this Act.

“(e) STANDARD OF REVIEW.—No objection that has not been urged
before the Energy Employees Review Panel shall be considered by the court,
unless the failure or neglect to urge such objection shall be excused because of
extraordinary circumstances. No new evidence may be adduced in proceedings
before the court. The order of the Energy Employees Review Panel shall be
affirmed unless arbitrary and capricious. In reviewing an order of the Energy
Employees Review Panel interpreting a provision of this Act or of a regulation
promulgated pursuant to it, deference shall be afforded by the court to the
Secretary of Labor’s interpretation of such provision.

“(f) LIMITATION.—No proceeding in any court may be brought seeking

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and Human Services, after consultation with the Secretary of Energy, responsible for establishing
guidelines for making determinations conceming whether cancer was sustained in the
performance of duty.

Subsection (0) would amend section 3623(e) of EEOICPA to strike a requirement that the
Secretary of Energy make available to an employee with cancer the estimated radiation dose of
the employee. The Secretary of Health and Human Services is required to make the dose
available by another amendment. .

Subsection (p) would amend section 3624(b) of EEOICPA to require the Advisory Board on
Radiation and Worker Health to advise the President concering whether EEOICPA should be
amended to provide benefits for chronic renal disease. ©

Subsection (q) would amend section 3627(e)(2)(A) of EEOICPA to substitute “pneumoconioses
of category 1/0 or higher” for “pneumoconioses of category 1/1 or higher.”

Subsection (r) would amend section 3627 of EEOICPA to provide that claimants seeking
benefits under EEOICPA for chronic silicosis be reimbursed from the compensation fund for
reasonable diagnostic medical expenses incurred in establishing their claims.

Subsection (s) would amend section 3630 of EEOICPA to clarify procedures for payment of an
additional $50,000 to persons compensated under the Radiation Exposure Compensation Act.

Subsection (t) would amend section 3631 of EEOICPA to specify agencies which are to
perform particular actions under EEOICPA.

Subsection (u) would amend section 3661(d) of EEOICPA to give the Secretary of Energy
more responsibility for the physician panels used in the program that provides assistance to
workers with State workers’ compensation claims.

SECTION 202. TECHNICAL AMENDMENTS

Subsections (a), (b), and (c) make changes to other Acts necessitated by the amendments to
EEOICPA.

Subsection (d) adds a new Office of Workers’ Compensation Advocate to the Department of
Energy to support implementation of EEOICPA.

SECTION 203. AMENDMENT TO THE RADIATION EXPOSURE COMPENSATION
ACT

This section would appropriate the sums necessary to carry out the Radiation Exposure
Compensation Act.


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“(1) was not reasonably available at the time that a previous
estimate of the radiation dose received by such employee was issued; and

“(2) would likely lead to a revision of that calculation to an extent
sufficient to result in a determination pursuant to section 3623(b) of this

Act that such employee’s cancer was at least as likely as not Telated to

employment

“(f) REVIEW.—A claimant may obtain review of the calculation of the
estimate of the radiation dose by the Energy Employees Review Panel, pursuant
to the procedures set forth in section 3635 of this Act.

“(g) FINALITY.—A claimant who fails to seek review before the Energy
Employees Review Panel within the time limit specified in section 3635(e) of this
Act of the calculation by the Secretary of Health and Human Services of the
estimate of a radiation dose received by an employee shall be deemed to have
waived all objections to the use of that estimated dose by the Secretary of Labor
in proceedings under this Act.

“SEC. 3634. ADJUDICATION AND ADMINISTRATION.
“(a) IN GENERAL.—
“(1) The Secretary of Labor shall determine and make a finding
of facts and make an award for or against payment of compensation
under this Act after—

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“(B) the covered employee's legal representative, spouse,
dependents, survivors, and next of kin, and
“(C) any other person, including any third party as to
whom the covered employee or the covered employee’s legal
representative, spouse, dependents, survivors, or next of kin has
a cause of action relating to the cancer (including a specified
cancer), an illness defined in sections 3621(8) and 3627(e) of this
Act; or death, otherwise entitled to recover damages from the
United States, the instrumentality, the contractor, the
subcontractor, or the employee, agent, or assign of one of
them—
because of the cancer (including a specified cancer), an illness defined in
sections 3621(8) and 3627(e) of this Act, or death in any proceeding or action
including a direct judicial proceeding, a civil action, a proceeding in admiralty,
or a proceeding under a tort liability statute or the common law.

“(b) APPLICABILITY .— This section applies to all cases filed on or
after October 30, 2000.

“(c) WORKERS’ COMPENSATION.— This section does not apply to
an administrative or judicial proceeding under a State or Federal workers’
compensation statute.

“SEC. 3649. PAYMENT IN FULL SETTLEMENT OF CLAIMS.

“(a) SATISFACTION.—The acceptance by an individual of payment of
compensation under this Act with respect to a covered employee shall be in full
satisfaction of all claims of or on behalf of that individual against the United
States, a Department of Energy contractor or subcontractor, a beryllium vendor,

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atomic weapons employer or against any person with respect to that person’s
performance of a contract with the United States that arise out of the exposure of a
covered beryllium employee, a covered employee with cancer, covered employee
exposed to the toxic substance for which a test of exposure in the performance of
duty is set forth in section 3627(c) or a covered uranium employees (as defined in
section 3630 of this Act), while so employed, to beryllium, radiation, the toxic
substance for which a test of exposure in the performance of duty is set forth in
section 3627(c), or radiation, respectively.

“(b) WORKERS’ COMPENSATION.—This section does not apply to an
administrative or judicial proceeding under a State or Federal workers'
compensation statute.

“SEC. 3650. SUBROGATION OF THE UNITED STATES.

“(a) IN GENERAL.—If a cancer (including a specified cancer), toxic
illness or death for which compensation is payable under this Act is caused
under circumstances creating a legal liability in a person other than the United
States to pay damages, sections 8131 and 8132 of title 5, United States Code,
shall apply, except to the extent specified in this Act.

“(b) APPEARANCE OF EMPLOYEE.—For the purposes of this Act,
the provision in section 8131 of title 5, United States Code, that provides that
an employee required to appear as a party or witness in the prosecution of an
action described in that section is in an active duty status while so engaged shall
only apply to a Federal employee.

“SEC. 3651. CONSTRUCTION WITH OTHER LAWS.

“(a@) IN GENERAL.— References in this Act to a provision of another
Statute shall be considered as references to such provision, as amended and as
may be amended from time to time.

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1 calculations and decisions specified in paragraph (1). Review by the Panel

2 shall be limited to the questions raised by the petition.

3 “(5) In any proceeding before the Panel challenging a calculation
4 or decision issued by the Secretary of Labor or the Secretary of Health and
5 Human Services, such Secretary may, in his or her discretion, choose

6 either-to participate or not to participate.

7 “(f) STANDARD OF REVIEW.—A calculation or decision specified in

8 paragraph (1) that is subject to review by the Panel shall be affirmed unless
9 arbitrary and capricious.

10 “SEC. 3636 JUDICIAL REVIEW.

11 “(a) PRECLUSION.—

12 “(1) Determinations of the Secretary of Health and Human

13 Services in providing an estimate, pursuant to section 3633 of this Act, of
14 the radiation dose received by an employee, and decisions of the Energy
15 Employees Review Panel in review thereof, shall be final and conclusive
16 for all purposes and with respect to all questions of law and fact and not
17 subject to review by another official of the United States or by a court by
18 mandamus or otherwise.

19 “(2) Decisions of the Secretary of Labor in allowing or denying a

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SECTION 104. COMPENSATION PROGRAM
This section would make several changes to subtitle B of EEOICPA.

Subsection (a) would amend section 3628 of EEOICPA to provide that a covered employee
could receive payment, as Federal employees receive payments under the Federal Employees’
Compensation Act, for the employee’s wages lost after the effective date of the amendments
because of disability or death if the employee meets certain requirements. The employee also
would be eligible for payment of medical expenses incurred after the effective date and for
vocational rehabilitation services undertaken at the Secretary of Labor’s direction.

Subsection (b) would amend section 3629 of EEOICPA to provide circumstances under which
the employee or employee’s survivor could elect to receive payment of a lump sum of $150,000
and medical benefits instead of any other compensation under this Act.

Subsection (c) would add sections 3632 through 3636 to EEOICPA:

. New section 3632 would provide for the manner of submitting claims for compensation
to the Secretary of Labor and set time limitations for submitting claims.

. New section 3633 would establish the procedure for initial screening of a claim by the
Secretary of Labor and calculation of an employee’s radiation dose by the Secretary of
Health and Human Services. This new section also would set forth methods for obtaining

. review of the initial screening and obtaining reconsideration and administrative review of
the calculation.

. New section 3634 would establish procedures for the Secretary of Labor to follow in
awarding compensation under EEOICPA. This new section also sets forth criteria for
obtaining reconsideration of the Secretary of Labor’s determinations concerning an
award. :

. New section 3635 would establish an Energy Employees Review Panel in the executive
branch to review a radiation dose estimate calculation by the Secretary of Health and
Human Services and final decision of the Secretary of Labor in making determinations
and awards with respect to claims filed under EEOICPA.

. New section 3636 would list issues subject to judicial review, establish procedures and
standards for judicial review, and preclude review of issues not specifically listed.

SECTION 105. GENERAL PROVISIONS

This section would amend subtitle C of EEOICPA.


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(s) URANIUM EMPLOYEES AWARD.-— Section 3630 of the
EEOICPA is amended to read as follows:

“SEC. 3630. SEPARATE TREATMENT OF CERTAIN URANIUM
EMPLOYEES.

“(a) COMPENSATION PROVIDED.— An individual who has been
awarded $100,000 under section 5 of the Radiation Exposure Compensation Act
(42 U.S.C. 2210 note) for a claim made under that Act shall receive
compensation under this section in the amount of $50,000. In the event an
individual who sustained an illness for which $100,000 was awarded under
section 5 of the Radiation Exposure Compensation Act dies before collecting
compensation pursuant to this subsection, the right to receive compensation under
this subsection shall be afforded to survivors in the order of precedence set forth
in section 8109 of title 5, United States Code.

“(b) OTHER BENEFITS.— An individual who sustained an illness for
which he or she received an award under section 5 of the Radiation Exposure
Compensation Act shall receive the compensation provided in subsection
3628(a)(2) of this Act as a result of that illness.

“(c) COORDINATION.— The compensation provided in subsections
(a) and (b) of this section is in addition to any payments received pursuant to the
Radiation Exposure Compensation Act. Sections 3643-3644 of this Act do not
apply to the compensation received pursuant to subsections (a) and (b) of this
section.

“(d) PAYMENT FROM COMPENSATION FUND.— The

compensation provided under this section, when authorized or approved by the

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“(c) MEANS OF ESTABLISHING COVERED BERYLLIUM
ILLNESSES.— The Secretary of Health and Human Services may from
time to time, and in consultation with the Secretary of Energy, specify
means of establishing the existence of a covered beryllium illness
referred to in section 3621(8)(A) or section 3621(13) of this Act, in .
addition to the means already specified in such sections.” .

(m) CANCER.— Section 3623(b) of the EEOICPA is amended by--

(1) inserting (1) before “An”;

(2) striking “with cancer specified in subclause (1), (I), or (I)”
and inserting “specified in clause (i), (ii), or (iii)”;

(3) striking “that” after “sustained” ;

(4) striking “cancer specified in that subclause” and inserting
“cancer was contracted after beginning employment as a Department of
Energy contractor employee or Department of Energy employee at a
Department of Energy facility or as an atomic weapons employee at an
atomic weapons employer facility and”; and

(5) inserting a new paragraph after paragraph (1) as follows:

“(2) A member of the Special Exposure Cohort shall be

determined to have sustained a specified cancer in the performance of
duty if, and only if, such individual contracted a specified cancer after
beginning employment at a Department of Energy facility for a

Department of Energy contractor or an atomic weapons employer facility

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death if the cancer (including a specified cancer), toxic illness, or death
occurred under one of the circumstances set forth in paragraph (1), (2),
or (3) of section 8102(a) of title 5, United States Code.

“(2) No compensation may be paid under this Act for any period
before the effective date of this Act, except in the case of compensation
under sections 3629(a) or 3630(a) of this Act.

“(3) All compensation under this Act shall be paid from the
Energy Employees Occupational HiIness Compensation Fund.

“(c) COMPUTATION OF PAY.--

“(1) Except as otherwise provided by this Act or by regulation,
computation of pay under this Act shall be determined in accordance
with section 8114 of title 5, United States Code.

“(2) If either of the methods of determining the average annual
earnings specified in section 8114(d)(1) and (2) of title 5, United States
Code, cannot be applied reasonably and fairly, the average annual
earnings are a sum that reasonably represents the annual earning capacity
of the covered employee in the employment in which the employee was
working at the time of injury having regard to the previous earnings of
the employee in similar employment, and of other employees of the same
employer in the same or most similar class working in the same or most
similar employment in the same or neighboring location, other previous
employment of the employee, or other relevant factors. However, the
average annual earnings may not be less than 150 times the average daily
wage the covered employee earned in the employment during the days
employed within 1 year immediately preceding the time of injury.”.


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“(C) demonstrates the existence of that cancer and its
diagnosis by medical documentation created during the employee’s
lifetime or at the time of death or autopsy; or

“(3)(A) was exposed to a toxic substance in the performance of
duty as determined in accordance with section 3627(c) of this Act;

“(B) sustained a toxic illness as defined in section 3627(e) of this
Act after being exposed in the performance of duty;

“(C) demonstrates the existence of a toxic illness as defined in
section 3627(e) of this Act and its diagnosis by medical documentation
created during the employee’s lifetime or at the time of death or autopsy;
and .

“(D) has provided the medical documentation specified in
section 5(b)(5)(A) and (B) of the Radiation Exposure Compensation Act
(42 U.S.C 2210 note).

“(c) DEATH BEFORE ELECTION. — .

“(1) Subject to the provisions of this Act, if a covered employee
otherwise eligible to make an election provided by this section dies
before the effective date of this Act, or before making the election,
whether or not the death is a result of a cancer (including a specified
cancer), or a toxic illness, a survivor of the covered employee on behalf
of the survivor and any other survivors of the covered employee may
make the election and receive the compensation provided for under this

section.


Energy Employees Occupational Ilness Compensation Amendments of 2001
Section-by-Section Analysis

SECTION 1. SHORT TITLE; TABLE OF CONTENTS
This section contains the short title and Table of Contents of the bill.
SECTION 2. FINDINGS
This section sets forth the findings of the bill.

Title I-Compensation Program
SECTION 101. APPROPRIATIONS AND COMPENSATION FUND

Subsection (a) would amend section 3614 of the Energy Employees Occupational Illness
Compensation Program Act of 2000 (EEOICPA) to authorize appropriation of the sums
necessary to administer the program and appropriate the sums necessary to make compensation
payments. Those funds would be available until expended.

Subsection (b) would amend section 3612 of EEOICPA to eliminate transfer authority for the
compensation fund and eliminate a requirement for amounts in the compensation fund to be
invested and interest from the investment being deposited into the fund.

SECTION 102. EXPOSURE IN THE PERFORMANCE OF DUTY

Subsection (a) of this section would amend section 3623(a) of EEOICPA to provide that the
presumption that a current or former employee of a beryllium vendor, or of a contractor or
subcontractor of a beryllium vendor, who was employed during a period when the vendor was
engaged in activities related to the production or processing of beryllium for sale to, or use by,
the Department of Energy was exposed to beryllium in the performance of duty for purposes of
the program can be overcome only by substantial evidence that such an employee was never
exposed to dust, particles, or vapor of beryllium that was produced or processed for sale to, or
use by, the Department of Energy.

Subsection (b) would amend section 3623(d) of EEOICPA to specify that the Secretary of Health
and Human Services, after consultation with the Secretary of Energy, is to establish methods for
arriving at reasonable estimates of radiation doses received by the types of employees covered by

the program.

SECTION 103. DESIGNATION OF ADDITIONAL MEMBERS OF SPECIAL
EXPOSURE COHORT

This section would amend section 3626 to specify that the Secretary of Health and Human
Services will determine who will be new members of the Special Exposure Cohort.


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“Except to the extent specified in section 3630 of this Act, an individual
may not receive compensation under this Act for cancer and also receive
compensation under the Radiation Exposure Compensation Act (42 U.S.C. 2210
note) as a result of the same cancer.

“SEC. 3648. EXCLUSIVITY OF REMEDY AGAINST THE UNITED
STATES, CONTRACTORS, AND SUBCONTRACTORS.

“(a) IN GENERAL.-The liability of the United States or an
instrumentality of the United States under this Act with respect to a cancer
(including a specified cancer), an illness defined in sections 3621(8) and 3627(e)
of this Act, or death related thereto of a covered employee is exclusive and
instead of all other liability—

“(1) of--

“(A) the United States;

“(B) any instrumentality of the United States;

“(C) a contractor that contracted with the Department of
Energy to provide management and operation, management and
integration, or environmental remediation of a Department of
Energy facility (in its capacity as a contractor);

“(D) a subcontractor that provided services, including
Construction, at a Department of Energy facility (in its capacity
as a subcontractor); and

“(E) an employee, agent, or assign of an entity specified
in subparagraphs (A) through (D)—

“() to—
“(A) the covered employee;

29


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appointment, not more than one for a term of two years, not more than two
for a term of four years and not more than two for a term of six years;
“(2) a vacancy caused by the death, resignation, or removal of any
member prior to the expiration of the term for which he was appointed
shall be filled only for the remainder of such unexpired term; and
“(3) temporary members of the Panel shall serve for a term of two
years.
Any member of the Panel may be removed by the President for inefficiency,
neglect of duty, or malfeasance in office.

“(c) CHAIRMAN.--The Chairman shall be responsible on behalf of the
Panel for the administrative operations of the Panel. The Panel shall appoint such
employees as it deems necessary to assist in the performance of the Panel's
functions and fix their compensation in accordance with the provisions of chapter
51 and subchapter Il of chapter 53 of title 5, relating to classification and general
pay rates.

“(d) DELEGATION OF POWERS.—The Panel is authorized to delegate
to any group of three members any or all of the powers of the Panel, except that
two members shall constitute a quorum of any group designated pursuant to this

subsection. The Panel may provide procedures for seeking review by the entire

17


Recommendations Clause of the U.S. Constitution, which provides that the President "shall from
time to time . . . recommend to [Congress] . . . such Measures as he shall judge necessary and
expedient." U.S. Const. Art. II, § 3. Nevertheless, on his own accord, the President issued
Executive Order 13179 establishing an Interagency Working Group and directing that Group to
"develop a legislative proposal” to create a compensation program. We wish to clarify that we are
transmitting this draft proposal in response to the Executive Order and not to fulfill a legal
obligation imposed by Section 3613.

The Omnibus Budget Reconciliation Act requires that all revenue and direct spending legislation
meet a pay-as-you-go (PAYGO) requirement. Specifically, no such bill should result in net
budget costs; if it does, it could contribute to a sequester if the costs are not fully offset. The
attached proposal affects direct spending, therefore, it is subject to the PAYGO requirement. The
PAYGO effect of this bill is currently estimated to be an increase in direct spending of $690
million from FYs 2001- 2005, which is attributable to the changes it makes to the Radiation

Exposure Compensation Act.

We look forward to working with Congress toward the enactment of this legislation. OMB
advises that there is no objection to the presentation of this legislation to the Congress and that its
enactment would be in accord with the program of the President.

Yours sincerely,
Bill Richardson is M. Herman
Secretary of Energy Secretary of Labor

., Enclosures: Legislation
Section-by-Section Analysis

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“SEC. 217. (a) There is established within the Department an Office of
Workers’ Compensation Advocate. The Office shall be headed by a Director
who shall be appointed by the Secretary. The Director shall be compensated at
the rate provided for in level IV of the Executive Schedule under section 5315
of title 5, United States Code.

“(b) The Director shall be responsible for providing information,
research reports, and studies to support the implementation of the Energy
Employees Occupation Illness Compensation Program Act of 2000. Not later
than 90 days after the effective date of this section, the Director shall enter into
memoranda of agreement to provide for coordination of the efforts of the Office
with the Department of Labor and the Department of Health and Human
Services.

“(c) The Director shall coordinate efforts within the Department to
collect and make available to present and former employees of the Department
and its predecessor agencies, present and former employees of contractors and
subcontractors of the Department and its predecessor agencies, and other
individuals who are or were present at facilities owned or operated by the
Department or its predecessor agencies information on occupational conditions
and exposures to health hazards. This information shall include information on
substances and their chemical forms to which employees may have been
exposed, records and studies relevant to determining occupational hazards, raw
dosimetry and industrial hygiene data, results from medical screening programs,
accident and other relevant occurrence reports, and reports, assessments, or
teviews by contractors, consultants, or external entities relevant to assessing
risk of occupational hazards or illness.

“(d) If the Director determines that-

41


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facility, pursuant to that individual’s conviction of an offense that constituted a
felony under applicable law. After this period of incarceration ends, the
individual shall not receive compensation forfeited during the period of
incarceration.

“(2) If an individual has one or more dependents as defined under
section 8110(a) of title 5, United States Code, the Secretary of Labor may,
during the period of incarceration, pay to such dependents a percentage of the
compensation under section 3628 that would have been payable to the individual
computed according to the percentages set forth in section 8133(a)(1) through
(5) of title 5, United States Code.

“(©) INFORMATION.— Notwithstanding section 552a of title 5, United
States Code, or any other Federal or State law, an agency of the United States,
a State, or a political subdivision of a State shall make available to the Secretary
of Labor, upon written request from the Secretary of Labor and if the Secretary
of Labor requires the information to carry out this section, the names and Social
Security account numbers of individuals confined, for conviction of a felony, in
a jail, prison, or other penal institution or correctional facility under the
jurisdiction of that agency.

“SEC. 3643. LIMITATION ON RIGHT TO RECEIVE BENEFITS.

“(a) CLAIMANT.—A claimant who receives compensation under
section 3629(a) of this Act shall not receive compensation for any other claim
under this Act, except for compensation provided under the authority of section
8103(b) of title 5, United States Code.

“(b) SURVIVOR.—If a survivor receives compensation under section
3629(a) of this title for any claim under this Act derived from a covered

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(k) NEW DEFINITIONS.— Section 3621 of EEOICPA is amended by
redesignating paragraphs (16), (17), and (18) as (15), (16), and (17)
Tespectively and by inserting at the end, the following:

“(18) Each of the terms defined in subsections 8101(2), (3), (5)
~ (11) and (17) - (20) of title 5, United States Code has the meaning
given that term in that statute when used in this Act.

“(19) The term ‘time of injury’ means-

“(A) in regard to a claim arising out of exposure to a
toxic substance, the last date on which a covered employee was
exposed to such toxic substance in the performance of duty in
accordance with sections 3623(a) or 3627(c) of this Act; or

“(B) in regard to a claim arising out of exposure to
radiation, the last date on which a covered employee was exposed
to radiation in the performance of duty in accordance with section
3623(b) of this Act or, in the case of a member of the Special
Exposure Cohort, the last date on which the member of the
Special Exposure Cohort was employed at the Department of
Energy facility at which the member was exposed to radiation.
“(20) The term ‘toxic illness’ means those illnesses defined in

sections 3621(8) and 3627(e) of this Act.
“(21) The term ‘toxic substance’ means a substance for which a
test of exposure in the performance of duty is set forth in section 3623(a)

or 3627(c) of this Act.

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payment under this Act, and decisions of the Energy Employees Review
Panel in review thereof, shall be final and conclusive for all purposes and
with respect to all questions of law and fact and not subject to review by
another official of the United States or by a court by mandamus or
otherwise, except to the extent provided in subsection (b) of this section.
“(b) ISSUES SUBJECT TO JUDICIAL REVIEW.—A person adversely
affected or aggrieved by a final order of the Energy Employees Review Panel
reviewing —
“(1) an Initial Screening determination made by the Secretary of
Labor pursuant to section 3633(b) of this Act;
“(2) a decision made by the Secretary of Labor that—
“(A) aclaim was not timely filed;
“(B) an employee was not a covered employee;
“(C) an employee did not sustain a toxic illness in the
performance of duty in accordance with sections 3623(a) or
3627(c) of this Act;
“(D) an employee did not sustain cancer in the
performance of duty in accordance with section 3623(b) of this

Act; or

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particles or vapor of beryllium that was produced or processed for sale to, or use
by, the Department of Energy, such an employee shall be determined to have been
exposed to beryllium in the performance of duty for the purposes of this Act.”.

(b) DOSE RECONSTRUCTION. --Section 3623(d) of the EEOICPA is
amended to read is follows:

“@ METHODS FOR RADIATION DOSE RECONSTRUCTION.—
The Secretary of Health and Human Services, after consultation with the
Secretary of Energy, shall establish by regulation methods for arriving at
reasonable estimates of the radiation doses that Department of Energy
employees or Department of Energy contractor employees received at a
Department of Energy facility and atomic weapons employees received at a
facility operated by an atomic weapons employer.” .
SEC. 103. DESIGNATION OF ADDITIONAL MEMBERS OF SPECIAL
EXPOSURE COHORT.

Section 3626 of the EEOICPA is amended by striking “President” each
time it appears and inserting “Secretary of Health and Human Services” .
SEC. 104. COMPENSATION PROGRAM.

(a) COMPENSATION AND OTHER ASSISTANCE.--Section 3628 of
the EEOICPA is amended to read as follows:
“SEC. 3628. AUTHORITY TO PROVIDE COMPENSATION AND
OTHER ASSISTANCE.

“@) COMPENSATION. — Subject to the provisions of this Act, the
Secretary of Labor—

“(1) shall pay compensation in accordance with sections 8105
through 8110, 8112, 8113, 8115, 8117, 8133, 8134, 8146a(a), and
8146a(b) of title 5, United States Code, for the disability or death--

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“(1) an entity within the Department or an entity that is the
recipient of a Departmental grant, contract, or cooperative agreement
possesses information necessary to carry out the Energy Employees
Occupation Iliness Compensation Program Act of 2000, and

“(2) the production and sharing of that information under the
Energy Employees Occupation Iliness Compensation Program Act of
2000 is being unreasonably delayed —

the Director, notwithstanding section 3213 of the National Nuclear Security
Administration Act, may direct the entity to produce the information
expeditiously in accordance with this section and the Energy Employees
Occupation Illness Compensation Program Act of 2000.

“(e) The Director shall inform and assist potential claimants under the
section 3631(c) of Energy Employees Occupation Illness Compensation
Program Act of 2000.” .

SEC. 203. AMENDMENT TO THE RADIATION EXPOSURE
COMPENSATION ACT. :

(a) APPROPRIATIONS.— Section 3 of the Radiation Exposure
Compensation Act (42 U.S.C. 2210 note) is amended by adding at its end a new
subsection (f) to read as follows:

“(f) Such sums as may be necessary to carry out the purposes of this
Act are hereby appropriated to the Fund.” .

(b) COMPENSATION. — Section 6(e) of the Radiation Exposure
Compensation Act (42 U.S.C. 2210 note) is amended by adding “Except as
otherwise authorized by law,” to the beginning of that subsection.

SEC. 204. EFFECTIVE DATE

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(b) ALTERNATIVE COMPENSATION.-—Section 3629 of the
EEOICPA is amended to read as follows:
“SEC. 3629. ALTERNATIVE COMPENSATION.

“(a) IN GENERAL.—Subject to the provisions of this Act, a covered

employee or the survivor of a deceased covered employee may elect to receive
alternative compensation in the amount of $150,000 in lieu of any other
compensation under sections 3628(a)(1) and 3628(a)(3) of this Act to which the
employee or the employee’s survivors may be entitled. ,

“(b) DETERMINATION.—A covered employee or the survivor of a
deceased covered employee may elect to receive alternative compensation if,
and only if, the Secretary of Labor determines that the employee-

“(1)(A) was exposed to a toxic substance in the performance of
duty as determined in accordance with section 3623(a) of this Act;

“(B) sustained Chronic Beryllium Disease; and

“(C) demonstrates the existence of Chronic Beryllium Disease
and its diagnosis by medical documentation created during the
employee’s lifetime or at the time of death or autopsy;

“(2)(A) contracted cancer after beginning employment as a

Department of Energy contractor employee or a Department of Energy

employee at a Department of Energy facility or as an atomic weapons

employee at an atomic weapons employer facility;

“(B) is determined to be a covered employee with cancer who
sustained that cancer in the performance of duty in accordance with
section 3623(b) of this Act; and