I 

108TH CONGRESS 

2D SESSION H. R. 4388 

To amend the Energy Employees Occupational Illness Compensation Program 

Act of 2000 to include certain nuclear weapons program workers in 

the Special Exposure Cohort under the compensation program established 

by that Act. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 18, 2004 

Mr. UDALL of New Mexico introduced the following bill; which was referred 

to the Committee on the Judiciary, and in addition to the Committee on 

Education and the Workforce, for a period to be subsequently determined 

by the Speaker, in each case for consideration of such provisions as fall 

within the jurisdiction of the committee concerned 

A BILL 

To amend the Energy Employees Occupational Illness Compensation Program Act of 2000 to include certain nuclear weapons program workers in the Special Exposure 

Cohort under the compensation program established by 

that Act. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as ‘‘Special Exposure Cohort 

5 Fairness Act of 2004’’. 
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1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

3 (1) Since World War II, hundreds of thousands 

4 of men and women have served in building the Na5 tion’s nuclear defense and, in the course of this 

6 work, have been exposed to beryllium, ionizing radi7 ation, and other hazards unique to nuclear weapons 

8 production and testing, including tens of thousands 

9 of workers in New Mexico. The purpose of the En10 ergy Employees Occupational Illness Compensation 

11 Program Act of 2000 (in this section referred to as 

12 the ‘‘Act’’), which was enacted on October 30, 2000, 

13 is to provide for timely, uniform, and adequate com14 pensation of covered employees and, where applica15 ble, survivors of such employees, suffering from ill16 nesses incurred by such employees in the perform17 ance of duty for the Department of Energy and cer18 tain of its contractors and subcontractors. 

19 (2) Executive Order No. 13179 required the 

20 Secretary of Health and Human Services to carry 

21 out the Act’s statutory requirement to issue and im22 plement procedures for conducting radiation dose re23 construction, to establish the scientific basis for 

24 compensation, and to issue regulations under which 

25 classes of workers could petition to become members 

26 of a Special Exposure Cohort and under which such 
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1 petitions could be evaluated. Pursuant to the Act, 

2 workers may petition to be members of a Special 

3 Exposure Cohort when it is not feasible to estimate 

4 dose with sufficient accuracy and there is a reason5 able likelihood that exposures to radiation may have 

6 endangered the health of the class of workers. Spe7 cial Exposure Cohort status provides an automatic 

8 presumption of causation for 22 radiation-related 

9 cancers without the need for attempting to estimate 

10 radiation dose, and is intended to remove an other11 wise insurmountable burden of proof. Such Special 

12 Exposure Cohorts have been designated by Congress 

13 at Paducah, Kentucky, Portsmouth, Ohio, the K–25 

14 facility at Oak Ridge, Tennessee, and the Amchitka 

15 Island Test site in Alaska. 

16 (3) The National Institute for Occupational 

17 Safety and Health was tasked with conducting radi18 ation dose reconstructions under the Act. As of April 

19 16, 2004, the Institute has completed 15 out of 571 

20 radiation dose reconstructions for covered workers at 

21 Los Alamos, New Mexico. The Institute has com22 pleted only 18 out of 765 dose reconstructions in 

23 New Mexico. Sick workers are dying while awaiting 

24 a determination on their claims, and in many cases 

25 the delays have caused them to lose hope. 
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1 (4) Congressional intent undergirding the statu2 tory requirement to allow additional Special Expo3 sure Cohorts was explained by Senator Jeff Binga4 man, an original cosponsor, as part of the floor de5 bate on the enactment of the Act on October 12, 

6 2000. He stated that this provision was added ‘‘for 

7 a significant minority who were exposed to radiation 

8 but for whom it would be infeasible to reconstruct 

9 their dose. There are several reasons why . . . this 

10 infeasibility might exist. First relevant dose records 

11 might be missing or might not exist altogether. Sec12 ond there might be a way to reconstruct the dose, 

13 but it would be prohibitively expensive to do so. Fi14 nally it might take so long to reconstruct a dose for 

15 a group of workers that they will all be dead before 

16 we have an answer that can be used to determine 

17 their eligibility.’’. 

18 (5) Dose reconstruction is being interminably 

19 delayed for claimants at Los Alamos National Lab20 oratory. A May 5, 2004, report to Congress by the 

21 Centers for Disease Control regarding obstacles to 

22 records recovery needed for radiation dose recon23 struction states that: ‘‘Los Alamos National Labora24 tory has not submitted individual bioassay data, nor 

25 detailed external dosimetry data. The submittals 
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1 consist of derived dose quantities, which cannot 

2 readily be used in dose reconstructions because they 

3 use a different methodology than NIOSH uses for 

4 dose reconstructions’’. 

5 (6) Hearings and investigations reveal that 

6 there was not appropriate worker monitoring for 

7 mixed neutron and gamma radiation for certain time 

8 periods, doubtful reliability of radiation dosimetry 

9 reports provided to claimants for certain time peri10 ods, and for some claimants, access has been denied 

11 to particular monitoring records. One of the workers 

12 who testified at a Department of Energy hearing in 

13 Espanola, New Mexico, in 2000 described how he 

14 could fall through the cracks of a system that oper15 ated solely on dose histories. He was a supervisor at 

16 what was called the ‘‘hot dump’’ at Los Alamos. En17 vironmental restoration reports indicate that more 

18 than 80 different radionuclides were taken there to 

19 be disposed of, making it very difficult to 

20 resconstruct dose amounts for each worker. 

21 (7) Over the course of the atomic weapons pro22 gram at Los Alamos, health-related documents were 

23 withheld from the workers and public in order to 

24 shield the Government and its contractors from pub-
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1 lic criticism, concerns about union demands for haz2 ardous duty pay, and real or perceived liability. 

3 (8) Memoranda indicate that air concentrations 

4 of radionuclides at Area G of Los Alamos were sys5 tematically underreported in environmental surveil6 lance reports issued to the public in the late 1980’s 

7 and early 1990’s, according to the Pueblo Office of 

8 Environmental Protection in 1992. 

9 (9) During the 2003 and 2004 regular sessions, 

10 the New Mexico legislature, through the leadership 

11 of State Representative Ray Ruiz, enacted Joint Me12 morials calling upon the United States Congress to 

13 enact comprehensive reforms to subtitle B and sub14 title D of the Act to remedy the injustices to work15 ers made sick from employment by contractors and 

16 subcontractors at Los Alamos. House Joint Memo17 rial 16 (2003) and House Joint Memorial 20 (2004) 

18 state in relevant part: ‘‘those employees who are un19 able to obtain records establishing past exposures 

20 and employees whose claims of radiation exposure 

21 are in jeopardy of being denied due to scientific un22 certainty in causation determinations should receive 

23 the benefit of the doubt and be compensated under 

24 the federal act’’. 
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1 (10) The memorial also urges that, in enacting 

2 Federal reform legislation with respect to the Act: 

3 ‘‘special exposure cohorts be established for employ4 ees in area G and the linear accelerator at Los Ala5 mos national laboratory, and for security guards and 

6 all construction workers, due to the impossibility of 

7 accurately reconstructing past radiation doses.’’. 

8 (11) The predicates for a Special Exposure Co9 hort for Los Alamos workers have been met. For 

10 some, dose records are missing or are incomplete; 

11 for others, it is requiring a costly research effort, the 

12 reliability of the Institute’s dose estimates may be 

13 open to question, and for virtually all Los Alamos 

14 claimants, the Institute is taking so long to estimate 

15 dose that claimants are dying off before they ever 

16 receive a determination. Justice has been denied 

17 through interminable delays. New Mexico’s large 

18 population of potentially eligible claimants at De19 partment of Energy facilities should not have to wait 

20 another generation or more to be compensated for 

21 their occupational illnesses. 
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1 SEC. 3. DEFINITION OF MEMBER OF SPECIAL EXPOSURE 

2 COHORT TO INCLUDE WORKERS AT LOS ALA3 MOS NATIONAL LABORATORY, LOS ALAMOS, 

4 NEW MEXICO. 

5 (a) IN GENERAL.—Section 3621(14) of the Energy 

6 Employees Occupational Illness Compensation Program 

7 Act of 2000 (42 U.S.C. 7384l(14)) is amended— 

8 (1) by redesignating subparagraph (C) as sub9 paragraph (D); and 

10 (2) by inserting after subparagraph (B) the fol11 lowing: 

12 ‘‘(C) The employee was so employed for a 

13 number of work days aggregating at least 250 

14 work days during the period 1945 through 

15 2000 at Los Alamos National Laboratory, Los 

16 Alamos, New Mexico, as a cohort-eligible Los 

17 Alamos worker (as defined in paragraph (18)) 

18 for work carried out under contract to the De19 partment of Energy, and, during such employ20 ment— 

21 ‘‘(i) was monitored through the use 

22 of— 

23 ‘‘(I) dosimetry badges for expo24 sure at the plant of the external parts 

25 of employee’s body to radiation; or 
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1 ‘‘(II) biossays, in vivo moni2 toring, or breath samples for exposure 

3 at the plant to internal radiation; or 

4 ‘‘(ii) worked in a job that had expo5 sures comparable to a job that is mon6 itored, or should have been monitored, 

7 under standards of the Department of En8 ergy in effect on the date of the enactment 

9 of this subparagraph through the use of 

10 dosimetry badges for monitoring external 

11 radiation exposures, or bioassays or in vivo 

12 monitoring for internal radiation expo13 sures.’’. 

14 (b) COHORT-ELIGIBLE LOS ALAMOS WORKERS.— 

15 Section 3621 of such Act is further amended by adding 

16 at the end the following new paragraph: 

17 ‘‘(18) The term ‘cohort-eligible Los Alamos 

18 worker’ applies to employment— 

19 ‘‘(A) in Area G or at the linear accelerator; 

20 ‘‘(B) as a security guard or construction 

21 worker; or 

22 ‘‘(C) in any area of Los Alamos National 

23 Laboratory and in any capacity, if all records 

24 necessary for radiation dose reconstruction 

25 under this Act with respect to that employee 
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1 have not been received by the National Institute 

2 for Occupational Safety and Health from the 

3 Department of Energy or its contractors within 

4 200 days after receipt of the claim under this 

5 Act with respect to that employee.’’. 

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