subsection may be used by the OAC in order to secure
financial information from any defendant.
(d) CONFIDENTIALITY.—Any information or docu-
mentary material concerning settlements which is specific
to a company, law firm, or plaintiff that is provided to
the OAC pursuant to subsection (b) or (c), whether by
subpoena or otherwise, shall be exempt from disclosure
under section 552 of title 5, United States Code, and the
disclosure of such information by the OAC or any person
is prohibited.
SEC. 308. LEGAL ASSISTANCE PROGRAM.
(a) IN GENERAL.—The OAC shall implement a legal
assistance program for the purpose of providing legal rep-
resentation to claimants. The OAC shall maintain a roster
of qualified counsel who agree to provide services to claim-
ants under rules, practices, and procedures established by
the Administrator.
(b) FREE CHOICE OF COUNSEL.—Claimants shall
not be required to use counsel provided or recommended
by the OAC, but shall retain their right to be assisted by
counsel of their choice.
(c) LEGAL ASSISTANCE.—The OAC shall adopt rules
concerning the reasonableness of fees, and all legal rep-
resentation of persons asserting asbestos claims shall com-
ply with such rules.
100
SEC. 309. TIME LIMITS FOR DISPOSITIONS.
(a) IN GENERAL.—If the Medical Director fails to
meet the time limits for an initial decision provided under
this title with respect to more than 30 percent of claims,
then the Administrator shall take such action as may be
necessary, including increasing staff and administrative
assessments under section 330, to ensure compliance with
such time limit with regard to at least 70 percent of
claims.
(b) NO OFFER.—If the Trustee fails to make an offer
within 120 days after the Administrator’s receipt of a
complete application under section 302 with respect to
more than 30 percent of claims, then the Administrator
shall take such action as may be necessary, including in-
creasing staff and administrative assessments under sec-
tion 330, to ensure compliance with such time limit with
regard to at least 70 percent of claims.
(c) DUTIES.—The duties established by subsections
(a) and (b) shall be nondiscretionary and enforceable by
an order of mandamus from any judge of the United
States Court of Federal Claims.
(d) EXCEPTIONS.—The Administrator may by rule
establish exceptions to the time limits in this section. Such
rules shall take into consideration the complexity of the
case, the extent to which delays are attributable to the
101
fault or neglect of the claimant or the claimant’s attorney
and other factors that are beyond the control of the OAC.
Subtitle B—Law Applicable to
Asbestos Adjudications
SEC. 310. MEDICAL ELIGIBILITY.
A claimant may recover compensation for damages
caused by an eligible medical condition only if the claimant
presents a certificate of medical eligibility establishing its
existence. A certificate of medical eligibility shall be con-
clusive unless rebutted by clear and convincing evidence.
However, a certificate of medical eligibility shall not be
conclusive as to allegations regarding exposure to asbestos
or when medical eligibility is established pursuant to sec-
tion 323(b).
SEC. 311. DAMAGES.
A claimant who establishes an eligible medical condi-
tion shall be entitled to compensatory damages to the ex-
tent provided by applicable law, including damages for
emotional distress, pain and suffering, and medical moni-
toring where authorized. Such damages shall not include
punitive damages or damages solely for enhanced risk of
a future condition, except as provided in section 308(d).
SEC. 312. STATUTE OF LIMITATIONS OR REPOSE.
No defense to an asbestos claim based on a statute
of limitations or statute of repose, laches, or any other
102
defense based on the timeliness of the claim shall be recog-
nized or allowed, unless such claim was untimely as of the
date of enactment of this title. No claim shall be deemed
to have accrued until and unless the claimant’s condition
would have qualified as an eligible medical condition under
section 321, 322, 323, or 324.
SEC. 313. COME BACK RIGHTS.
Notwithstanding any other provision of law, a judg-
ment or settlement of an asbestos claim for a nonmalig-
nant disease shall not preclude a subsequent claim with
respect to the same exposed person for an eligible medical
condition pursuant to section 320(b), 322, 323, or 324.
SEC. 314. CLASS ACTIONS, AGGREGATIONS OF CLAIMS AND
VENUE.
(a) CONSOLIDATIONS.—No joinder of parties, aggre-
gation of claims, consolidation of actions, extrapolation,
or other device to determine multiple asbestos claims on
a collective basis shall be permitted without the consent
of all parties, except as provided in subsection (b) or un-
less the court, pursuant to an exercise of judicial authority
to promote the just and efficient conduct of asbestos civil
actions, orders such procedures, including the transfer for
consolidation, to determine multiple asbestos claims on a
collective basis.
103
(b) CLASS ACTION SUITS.—In any civil action assert-
ing an asbestos claim, a class action may be allowed with-
out the consent of all parties if the requirements of Rule
23, Federal Rules of Civil Procedure are satisfied.
(c) VENUE.—At the election of the claimant, an as-
bestos claim may be filed in any jurisdiction where the
claimant is alleging that the claimant was exposed to as-
bestos or where the claimant is currently domiciled.
(d) REMOVAL.—Any party in a civil action that in-
volves a violation of subsection (a), (b) or (c) of this sec-
tion may remove such action to an appropriate district
court of the United States. The district courts of the
United States shall have jurisdiction of all civil actions re-
moved pursuant to this section without regard to diversity
of citizenship or amount in controversy.
(e) ADMINISTRATIVE PROCEEDINGS.—In any pro-
ceeding under section 105, the Administrative Law Judge
may order adjudication of claims on a collective basis.
SEC. 315. JOINT AND SEVERAL LIABILITY.
This title shall not be construed to limit joint and
several liability under applicable Federal or New Mexico
law. In any core claim that is successfully asserted against
a defendant, such defendant shall be held jointly and sev-
erally liable for full compensatory damages to the claimant
notwithstanding any contrary provision of law.
104
SEC. 316. CORE CLAIMS.
In any core claim, the issues to be decided shall be
limited to—
(1) whether the exposed person with respect to
whom a claim is made has or had an eligible medical
condition;
(2) whether the exposure of the exposed person
to the product of the defendant was a substantial
contributing factor in causing that eligible medical
condition; and
(3) the amount of compensation to be provided.
SEC. 317. SPECIAL RULES APPLICABLE TO SECTION 305 AD-
JUDICATIONS.
(a) APPLICABLE LAW.—Unless otherwise provided in
this title, in claims based on New Mexico law, the Admin-
istrative Law Judge shall, with respect to each defendant,
apply the substantive law of New Mexico.
(b) FULL COMPENSATORY DAMAGES IN WRONGFUL
DEATH CASES.—Notwithstanding any contrary provision
of New Mexico law, full compensatory damages, including
damages for noneconomic loss, shall be awarded in wrong-
ful death claims involving mesothelima. In all other cases,
damages for noneconomic loss may be awarded to the ex-
tent that they are available pursuant to applicable law.
(c) PENALTY FOR INADEQUATE OFFER.—In any pro-
ceeding against a defendant by a claimant under section
105
305, and in any proceeding by the Trustee, if the final
offer made by any defendant is less than the share of the
total liability awarded against that defendant, a penalty
shall be added to the award equal to 100 percent of the
difference between the defendant’s settlement offer under
section 303(b) and the lesser of—
(1) the defendant’s share of the offer made by
the Trustee under section 303(b); or
(2) the defendant’s share of the award made
under section 305.
(d) PUNITIVE DAMAGES.—Punitive damages may be
awarded against a defendant if the claimant establishes
by clear and convincing evidence that the conduct carried
out by the defendant with a conscious, flagrant indiffer-
ence to the rights or safety of others was the proximate
cause of the harm that is the subject of the asbestos claim.
Punitive damages may not exceed 3 times the amount of
the award pursuant to a section 305 adjudication plus any
penalties added to that award pursuant to subsection (c).
SEC. 318. SPECIAL RULES APPLICABLE TO THE TRUSTEE.
In an action by the Trustee as assignee of the claim-
ant, the award under section 304(c) shall include compen-
satory damages for the claimant’s injury and all punitive
damages under section 317(d), any penalties for inad-
equate offers by defendants, and the Trustee’s costs in
106
establishing the claim, including reasonable attorneys’ fees
and expenses and an allowance for interest on the amount
paid by the Fund to the claimant under section 304. Inter-
est shall be calculated from the time of such payments,
and in accordance with subtitle D. All economic and non-
economic damages recovered by the Fund in excess of 200
percent of the amount paid to the claimant pursuant to
section 304 and all punitive damages under section 317(d)
shall be paid to the settling claimant. The fact that the
claimant has accepted an offer of compensation by the
Trustee, and the amount and terms of such offer, shall
not be admissible in any adjudication of a claim brought
by the Trustee against any defendant.
Subtitle C—Eligible Medical
Categories
SEC. 320. ELIGIBLE MEDICAL CATEGORIES.
(a) IN GENERAL.—The eligible medical categories
under this title are asbestos-related nonmalignant condi-
tions with impairment, asbestos-related mesothelioma, as-
bestos-related lung cancer, and asbestos-related other can-
cer.
(b) ESTABLISHING EXISTENCE.—A claimant may es-
tablish the existence of an eligible medical condition either
by demonstrating that the exposed person meets the
standard criteria provided in sections 321, 322, 323, and
107
324 or by demonstrating to an exceptional medical claims
panel, through reliable evidence, that the exposed person
has an asbestos-related impairment that is substantially
comparable to the condition of an exposed person who
would satisfy the requirements of a given medical cat-
egory. The Administrator, after consultation with the
Medical Advisory Committee, may adopt rules consistent
with this section to assure consistency and efficiency in
the designation of claims as exceptional medical claims.
SEC. 321. ASBESTOS-RELATED NONMALIGNANT CONDI-
TIONS WITH IMPAIRMENT.
(a) IN GENERAL.—The standard criteria for asbes-
tos-related nonmalignant conditions with impairment shall
include—
(1) clinical evidence of asbestosis,
(2) pathological evidence of asbestosis, or
(3) evidence of bilateral pleural thickening with
impairment.
(b) OBSTRUCTIVE LUNG DISEASE.—A claimant shall
not be disqualified from compensation under this category
solely because an exposed person who otherwise meets the
requirements for impairment has a reduced FEV1/FVC
ratio indicating obstructive lung disease. In that event, the
exceptional medical claims panel shall determine, giving
due regard to the evidence that any impairment is related
108
to obstructive disease and taking into consideration all
available evidence, whether an asbestos-related restrictive
disease substantially contributes to the impairment of the
exposed person. Such a contribution shall be presumed if
the panel concludes, based upon the findings of a certified
B-reader, that the exposed person’s chest x-ray is ILO
Grade 2/1 or more.
SEC. 322. ASBESTOS-RELATED MESOTHELIOMA.
The standard criteria for asbestos-related mesothe-
lioma shall include a diagnosis by a qualified physician of
a malignant mesothelioma caused or contributed to by ex-
posure to asbestos with a primary site in the pleura, peri-
toneum, or like tissue, or reasonably equivalent clinical di-
agnosis in the absence of adequate tissue for pathological
diagnosis.
SEC. 323. ASBESTOS-RELATED LUNG CANCER.
(a) IN GENERAL.—The standard criteria for asbes-
tos-related lung cancer shall include—
(1) a diagnosis by a qualified physician of lung
cancer that the physician concludes was caused or
contributed to by exposure to asbestos;
(2) a latency period of at least 10 years; and
(3) either—
(A) evidence of asbestosis or bilateral pleu-
ral thickening with impairment sufficient to
109
meet the requirements of section 321 or to
qualify as an exceptional medical claim under
section 320(b); or
(B) chest x-rays which, in the opinion of a
certified B-reader, demonstrate asbestos-related
bilateral pleural plaques or thickening, and 7.5
equivalent-years of exposure to asbestos-con-
taining materials in employment regularly re-
quiring work in the immediate area of visible
asbestos dust.
(b) HISTORY OF SMOKING.—If a finding of asbestos-
related lung cancer is made pursuant to paragraph (3)(B)
and the exposed person has a substantial history of smok-
ing, which shall be defined by rule, the claimant shall be
medically eligible for compensation, but the finding of as-
bestos-related lung cancer shall not be conclusive as to
causation for purposes of section 310.
SEC. 324. ASBESTOS-RELATED OTHER CANCER.
The standard criteria for asbestos-related other can-
cer shall include a diagnosis by a qualified physician of
a malignant primary tumor of the larynx, oral-pharynx,
gastro-intestinal tract, or stomach, caused or contributed
to by exposure to asbestos, together with evidence of a
condition sufficient to meet the requirements of section
111
apart. The Administrator shall adjust periodically the
amount of the cash payment to reflect changes in medical
costs. Level B reimbursements shall be treated as adminis-
trative expenses of the OAC and paid for by defendants
under section 401.
(c) CERTIFIED LABS.—The Administrator is author-
ized to establish a program for the certification of labora-
tories to provide medical testing under this section.
(d) EXPOSURE VERIFICATION.—The Administrator
shall establish audit and other procedures to provide rea-
sonable assurance that statements concerning exposure
made by claimants seeking medical testing reimbursement
under this section are accurate.
Subtitle D—Funding
SEC. 330. ASSESSMENT AND ENFORCEMENT.
(a) RULES.—The Administrator shall adopt rules for
calculating and collecting from defendants all costs associ-
ated with the determination of claims and payments to
claimants.
(b) TRUSTEE.—The Trustee shall have authority to
bring an action in the district courts of the United States
to enforce any obligation imposed on any person by this
section and such courts shall have exclusive jurisdiction
of such actions without regard to the amount in con-
troversy or citizenship of the parties. The district court
112
shall not entertain any defense other than lack of jurisdic-
tion in any action by the Trustee under this subsection.
(c) TRUSTEE PREVAILS.—In any action under sub-
section (b) in which the Trustee prevails, the Trustee shall
be entitled to costs, including reasonable attorneys’ fees,
and interest on any unpaid amount.
(d) JUDICIAL REVIEW.—A defendant may challenge
the legality or amount of any assessment only by seeking
judicial review in the United States Court of Federal
Claims after paying the disputed amount. If successful,
the defendant shall be awarded interest.
SEC. 331. FISCAL AND FINANCIAL MANAGEMENT OF THE
ASBESTOS COMPENSATION FUND.
(a) APPLICABILITY OF CREDIT REFORM ACT PRIN-
CIPLES; FISCAL MANAGEMENT RULES.—Except as pro-
vided in this section, the operations of the Fund related
to settlement payments under section 304, and associated
recoveries from defendants, shall be governed by the Fed-
eral Credit Reform Act of 1990 (2 U.S.C. 661 et seq.),
notwithstanding the status of the Fund as a governmental
entity. The Administrator shall promulgate rules, ap-
proved by the Office of Management and Budget, for the
fiscal management of the Fund. Such rules and their ap-
plication shall not be subject to judicial review and shall,
as regards payments under section 304—
113
(1) provide all reasonable assurance that, over
an appropriate time period, the subsidy rate associ-
ated with the net litigation risk of the Fund is zero;
(2) provide all reasonable assurance that, in
any given year, the subsidy rate associated with the
net litigation risk of the Fund is no more than 2
percent;
(3) provide for the allocation of receipts from
defendants to various Fund accounts, including the
Fund’s financing account, program account, and an
account for salaries and expenses (which shall in-
clude litigation costs); and
(4) provide specific instructions for the Trustee
to reduce payments by the Fund when necessary to
meet the solvency requirements of this subsection.
(b) FINANCING OF THE FUND, SETTLEMENT PAY-
MENTS TO CLAIMANTS.—
(1) CREDIT REFORM PRINCIPLES.—The Fund
is authorized to receive from defendants, as offset-
ting receipts, any amounts related to settlements or
judgments, including damages, interest, litigation
costs, specific administrative costs that may be re-
quired by the Administrator through rulemaking,
and interest costs incurred by the Fund in connec-
tion with payment of settlement offers made under
114
section 103. Amounts received from defendants as
interest shall be sufficient to pay interest costs due
to the United States Treasury from the financing
account, plus the subsidy costs of the program ac-
count, provided that the latter amounts may not ex-
ceed 3 percent of the amount of any settlement or
award. Recoveries on a claim by the Fund in excess
of the settlement amount paid to the claimant and
other costs of the Fund which are not paid to the
claimant under section 209 shall be available to the
program account as a reduction to subsidy costs in
the current or any subsequent year.
(2) AUTHORITY.—The program account shall
have permanent indefinite authority, not subject to
further appropriation, to transfer funds to the fi-
nance account in accordance with principles of the
Credit Reform Act.
SEC. 332. AUTHORIZATION FOR APPROPRIATIONS AND OFF-
SETTING COLLECTIONS.
(a) IN
GENERAL.—There are authorized to be
appropriated—
(1) to the OAC such sums as may be required
to perform responsibilities under this title;
115
(2) to the United States Court of Federal
Claims, such sums as may be required to carry out
its responsibilities under this title; and
(3) to the OAC an amount not to exceed $100
million, for a one-time loan to the Fund in connec-
tion with startup expenses, such loan to be repaid by
the Fund with interest;
The total of appropriations provided under this subsection
in the first year after the date of enactment not exceed
$250 million and in any subsequent year not exceed $150
million.
(b) OFFSETTING COLLECTIONS OF ADMINISTRATIVE
ASSESSMENTS.—The OAC is authorized to receive and to
expend in any year, as offsetting collections, all adminis-
trative assessments or prepaid administrative assessments
and all costs and penalties paid to it.
Subtitle E—Transition
SEC. 335. APPLICABILITY; TRANSITIONAL CIVIL ACTIONS.
(a) IN GENERAL.—This title shall be effective upon
its date of enactment with respect to any civil action as-
serting an asbestos claim in which trial has not com-
menced as of that date.
(b) PENDING CLAIM.—A claimant with a pending
civil claim on the date of enactment shall not be required
to obtain a certificate of medical eligibility or otherwise
116
exhaust the procedures set forth in subtitle A if trial com-
mences within 6 months of the date of enactment of this
title. This 6-month period may be extended by the Attor-
ney General for up to an additional 6 months if required
for the orderly implementation of this title, and after re-
porting to the Congress the reasons for any such exten-
sion.
(c) RIGHT TO SUE LETTER.—If a claimant with—
(1) a pending civil action on the date of enact-
ment of this title, and
(2) a scheduled trial date within one year after
the date of enactment of this title
does not receive an initial decision on medical eligibility
within the time period prescribed in section 302(c), the
claimant may request a right-to sue letter from the Ad-
ministrator at any time prior to the issuance of that initial
decision. If the Attorney General determines that the 6-
month period in subsection (b) should be extended, the
one-year period in the preceding sentence shall be similarly
extended. The Administrator shall issue a right-to-sue let-
ter or an initial decision under section 102 within 10 days
following the receipt of the claimant’s request. A claimant
who receives a right-to-sue letter may assert the claimant’s
asbestos claim in any competent forum notwithstanding
section 301(b).
117
(d) CLAIM IN ANOTHER FORUM.—Any claimant who
asserts his claim in a forum other than the OAC under
subsections (b) or (c) must demonstrate that the exposed
person has qualified for medical eligibility under section
320, 321, 322, 323, 324, or 325.
Subtitle F—Definitions
SEC. 340. DEFINITIONS.
In this title:
(1) ASBESTOS
CLAIM.—The term ‘‘asbestos
claim’’ means any claim for damages or other relief,
arising out of, based on, or related to the health ef-
fects of occupational exposure to asbestos, including
any claim for personal injury, death, mental or emo-
tional injury, risk of disease or other injury, or the
costs of medical monitoring or surveillance, and in-
cluding any claim made by or on behalf of any ex-
posed person or any representative, spouse, parent,
child, or other relative of any exposed person. The
term does not include any claim for workers’ com-
pensation benefits, or any claim by an employer or
insurer for reimbursement from a third-party for
benefits paid under a workers’ compensation plan, or
any claim for benefits under a veterans’ benefits pro-
gram.
118
(2) ASBESTOS
TRUST.—The term ‘‘asbestos
trust’’ means a court-supervised trust established to
resolve asbestos claims arising directly or indirectly
from exposure to asbestos or asbestos-containing
products, including a trust created pursuant to the
bankruptcy laws of the United States or Rule 23 of
the Federal Rules of Civil Procedure.
(3) CERTIFICATE OF MEDICAL ELIGIBILITY.—
The term ‘‘certificate of medical eligibility’’ means a
certificate issued to a claimant pursuant to this title
certifying that an exposed person meets the require-
ments of one or more eligible medical categories or
qualifies as an exceptional medical claim.
(4) CERTIFIED
B-READER.—The term ‘‘cer-
tified B-reader’’ means an individual qualified as a
‘‘final’ or ‘‘B-reader’’ under 42 C.F.R. 37.51(b)
(1997) (and any subsequent revisions thereof) whose
certification is current.
(5) CHEST X-RAYS.—The term ‘‘chest x-rays’’
means chest radiographs taken in at least 2 views
(Posterior-Anterior and Lateral) and graded quality
1 for reading according to the criteria established by
the ILO. If the claimant is unable to provide quality
1 chest x-rays because of death or because of an in-
119
ability to have new chest x-rays taken, chest x-rays
graded quality 2 will be acceptable.
(6) CIVIL
ACTION.—The term ‘‘civil action’’
means any action, lawsuit, or proceeding in any New
Mexico, Federal, or tribal court, but does not
include—
(A) a criminal action; or
(B) an action relating to New Mexico or
Federal workers’ compensation laws, or a pro-
ceeding for benefits under any veterans’ bene-
fits program.
(7) CLAIMANT.—The term ‘‘claimant’’ means
any exposed person in Los Alamos, New Mexico, or
the person’s legal representative, and any relative of
an exposed person or their legal representative, who
asserts an asbestos claim.
(8) CLINICAL EVIDENCE OF ASBESTOSIS.—The
term ‘‘clinical evidence of asbestosis’’ means a diag-
nosis of pulmonary asbestosis by a qualified physi-
cian based on the minimum objective criteria of—
(A) Chest x-rays for which a B-reader re-
port is furnished showing small irregular opac-
ities of ILO Grade 1/0 and pulmonary function
testing and physical examination that show
either—
120
(i) FVC <80% of predicted value
with FEV1/FVC≥ 75% (actual value); or
(ii) TLC <80% of predicted value,
with either DLCO≤ 76% of predicted value
or bilateral basilar crackles, and also the
absence of any probable explanation for
this DLCO result or crackles finding other
than the presence of asbestos lung disease;
or
(B) Chest x-rays for which a B-reader re-
port is furnished showing small irregular opac-
ities of ILO Grade 1/1 or greater and pul-
monary function testing that shows either—
(i) FVC <80% of predicted value
with FEV1/FVC≥ 72% (actual value) or, if
the individual tested is at least 68 years
old at the time of the testing, with FEV1/
FVC≥ 65% (actual value); or
(ii) TLC <80% of predicted value.
(9) 
COMPENSATORY
DAMAGES.—The 
term
‘‘compensatory damages’’ means damages awarded
for economic loss, such as medical expenses, as well
as noneconomic loss. Noneconomic loss includes sub-
jective, nonpecuniary loss, such as pain, suffering,
121
inconvenience, emotional distress, loss of society and
companionship, and loss of consortium.
(10) CORE
CLAIM.—The term ‘‘core claim’’
means an asbestos claim against a defendant who
either—
(A) manufactured any asbestos-containing
product which released asbestos fibers to which
the exposed person was exposed, and paid out
$50,000,000 in respect of such claims cumula-
tively over the 10 year period preceding the fil-
ing of the claim; or
(B) was not a manufacturer but paid out
$100,000,000 in respect of such claims cumula-
tively over the 10 year period preceding the fil-
ing of the claim; provided that the alleged liabil-
ity is not based upon the control or ownership
of property.
(11) DEFENDANT.—The term ‘‘defendant’’
means any person in Los Alamos, New Mexico, who
is or may be responsible for the asbestos-related con-
dition of the exposed person and who is so notified
by the Administrator pursuant to subtitle A. The
term does not include—
(A) an asbestos trust in existence as of the
date of enactment of this title unless the trust
122
elects to be covered by this title under section
345(b); or
(B) the United States Government or the
government of New Mexico.
(12) DLCO.—The term ‘‘DLCO’’ means single-
breath diffusing capacity of the lung (carbon mon-
oxide), which is a measure of the volume of carbon
monoxide transferred from the alveoli to blood in the
pulmonary capillaries for each unit of driving pres-
sure of the carbon monoxide.
(13) EQUIVALENT-YEAR.—The term ‘‘equiva-
lent-year’’ means a measure of exposure to asbestos
adjusted to reflect varying exposure levels typical of
different occupations. Each year of exposure in
which an exposed person’s primary occupation in-
volved the direct installation, repair, or removal of
asbestos-containing products, shall count as one
year. Each year of such occupational exposure in
which the exposed person’s primary occupation in-
volved either the direct manufacture of asbestos-con-
taining products using raw asbestos fiber or the di-
rect installation, repair, or removal of asbestos-con-
taining products shall count as 2 years. Each year
of exposure in occupations not described above shall
count as one-half year.
123
(14) 
EVIDENCE
OF
BILATERAL
PLEURAL
THICKENING
WITH
IMPAIRMENT.—The term ‘‘evi-
dence of bilateral pleural thickening with impair-
ment’’ means a diagnosis of bilateral pleural thick-
ening by a qualified physician based on the min-
imum objective criteria of either—
(A) Chest x-rays for which a B-reader re-
port is furnished showing bilateral pleural
thickening of ILO Grade B/2 with pulmonary
function testing and physical examination that
show either—
(i) FVC <80% of predicted value
with FEV1/FVC≥ 75% (actual value); or
(ii) TLC <80% of predicted value,
with either DLCO≤ 76% of predicted value
or bilateral basilar crackles, and also the
absence of any probable explanation for
this DLCO result or crackles finding other
than the presence of asbestos lung disease;
or
(B) Chest x-rays for which a B-reader re-
port is furnished showing bilateral pleural
thickening of ILO Grade C/2 or greater; and
pulmonary function testing that shows either—
124
(i) FVC <80% of predicted value
with FEV1/FVC≥ 72% (actual value) or, if
the individual tested is at least 68 years
old at the time of the testing, with FEV1/
FVC≥ 65% (actual value); or
(ii) TLC <80% of predicted value.
(15) EXPOSED
PERSON.—The term ‘‘exposed
person’’ means any person who has been exposed in
Los Alamos, New Mexico to asbestos or to asbestos-
containing products.
(16) FEV1.—The term ‘‘FEV1’’ means forced
expiratory volume (1 second), which is the maximal
volume of air expelled in one second during perform-
ance of the spirometric test for forced vital capacity
(FVC).
(17) FUND.—The term ‘‘Fund’’ means the As-
bestos Compensation Fund.
(18) FVC.—The term ‘‘FVC’’ means forced
vital capacity, which is the maximal volume of air
expired with a maximally forced effort from a posi-
tion of maximal inspiration.
(19) ILO.—The term ‘‘ILO’’ means the Inter-
national Labour Organization.
(20) ILO GRADE.—The term ‘‘ILO grade’’
means the radiological ratings for the presence of
125
lung or pleural changes by chest x-ray as established
from time to time by the ILO.
(21) LATENCY PERIOD.—The term ‘‘latency pe-
riod’’ means the period from the date of the exposed
person’s first exposure to asbestos or an asbestos-
containing product to the date of manifestation of
the condition claimed.
(22) LUNG CANCER.—The term ‘‘lung cancer’’
means a primary malignant bronchogenic tumor, of
any cell type, caused or contributed to by exposure
to asbestos.
(23) MANIFESTATION.—The term ‘‘manifesta-
tion’’ means either the date of the actual diagnosis
of the condition claimed, or the date upon which the
clinical records and available tests indicate that the
condition could reasonably have been diagnosed by a
qualified physician.
(24) NET
LITIGATION
RISK.—The term ‘‘net
litigation risk’’ means the risk to the Asbestos Com-
pensation Fund that amounts paid out to claimants,
plus associated interest and litigation expenses, will
exceed amounts recovered from defendants, ex-
pressed as a percentage of sums expended, and esti-
mated for a specific cohort of transactions. Losses
126
on particular claims are netted against excess recov-
eries on other claims.
(25) OAC.—The term ‘‘OAC’’ means the Office
of Asbestos Compensation.
(26) OCCUPATIONAL HISTORY.—The term ‘‘oc-
cupational history’’ means a listing of all employ-
ment positions, providing for the dates and location
of employment, the employer, and a description of
job responsibilities and activities.
(27) PARTY.—The term ‘‘party’’ does not in-
clude the United States Government or the govern-
ment of New Mexico.
(28) PATHOLOGICAL
EVIDENCE
OF
ASBES-
TOSIS.—The term ‘‘pathological evidence of asbes-
tosis’’ means diagnosis of pulmonary asbestosis by a
qualified physician based on a finding that more
than one representative section of lung tissue other-
wise uninvolved with any other process (e.g., cancer
or 
emphysema) 
demonstrates 
a 
pattern 
of
peribronchiolar or parenchymal scarring in the pres-
ence of characteristic asbestos bodies, and also that
there is no other more likely explanation for the
presence of the fibrosis.
(29) PERSON.—The term ‘‘person’’ means an
individual, trust, firm, corporation, association, part-
127
nership, or joint venture. The term does not
include—
(A) an asbestos trust in existence as of the
date of enactment of this title unless the trust
elects to be covered by this title under section
345(b); or
(B) the United States Government or the
government of New Mexico.
(30) PHYSICIAN.—The term ‘‘physician’’ means
a medical doctor or doctor of osteopathy currently li-
censed to practice medicine in any State who has
not, within the 5-year period prior to the date of en-
actment of this title, spent more than one half of the
doctor’s professional time, or derived more than one-
half of the doctor’s professional income, either annu-
ally or in total, either reviewing or testifying in any
forum on medical-legal issues related to asbestos.
(31) PREDICTED VALUE.—The term ‘‘predicted
value’’ means a published reference to the normal
breathing capacity of healthy populations based on
age, height, and gender, as approved by the Medical
Director, pursuant to a rule, issued within 120 days
of the date of enactment. For the purposes of this
title, the use of any published, predicted values that
are generally accepted in the medical community
128
shall be acceptable and such values may not be ad-
justed for race.
(32) PULMONARY
FUNCTION
TESTING.—The
term ‘‘pulmonary function testing’’ means tests for
forced vital capacity, lung volume, and diffusing
studies using equipment, tests and standards gen-
erally accepted in the medical community, as ap-
proved by the Medical Director, pursuant to a rule,
issued within 120 days of enactment of this title.
Such pulmonary function test shall not be adjusted
for race.
(33) PUNITIVE DAMAGES.—The term ‘‘punitive
damages’’ means damages, in addition to compen-
satory damages, awarded against any person to pun-
ish past conduct or deter that person, or others,
from engaging in similar conduct in the future.
(34) QUALIFIED PHYSICIAN.—The term ‘‘quali-
fied physician’’ means, with respect to a diagnosis or
other medical judgment or procedure under this
title, an internist, pulmonary specialist, pathologist,
radiologist, oncologist, or specialist in occupational
medicine with an appropriate subspecialty, as appro-
priate, who is certified by the relevant medical spe-
cialty board.
129
(35) 
QUALIFYING
NATIONAL
SETTLEMENT
PLAN.—The term ‘‘Qualifying National Settlement
Plan’’ means a written agreement or related series
of written agreements with claimants or with attor-
neys or law firms representing claimants, pursuant
to which a person who is or may be responsible for
such claims has resolved or agreed to resolve at least
50 percent of the asbestos claims that were pending
against such person.
(36) TLC.—The term ‘‘TLC’’ means total lung
capacity, which is the volume of air in the lung after
maximal inspiration.
(37) TRUSTEE.—The term ‘‘Trustee’’ means
the Trustee of the Asbestos Compensation Fund.
(38) VETERANS’ 
BENEFITS
PROGRAM.—The
term ‘‘veterans’ benefits program’’ means any pro-
gram for benefits in connection with military service
administered by the Veterans’ Administration under
Title 38, United States Code.
(39) WORKERS’ 
COMPENSATION
LAW.—The
term ‘‘workers’ compensation law’’ means a law re-
specting a program administered by New Mexico or
the United States to provide benefits, funded by a
responsible employer or its insurance carrier, for oc-
cupational diseases or injuries or for disability or
130
death caused by occupational diseases or injuries.
The term includes the Longshore and Harbor Work-
ers’ Compensation Act (33 U.S.C. 901–944, 948–
950), but does not include the Employer’s Liability
Act (45 U.S.C. chapter 2).
Subtitle G—Miscellaneous
Provisions
SEC. 345. RELATIONSHIP TO OTHER LAWS.
(a) APPLICABILITY OF OTHER FEDERAL LAWS.—
The OAC may, with the approval of the Director of the
Office of Management and Budget, waive the applicability
in whole or in part of personnel and procurement laws and
regulations, provided that any such waiver must be spe-
cific, must be subject to periodic review and evaluation,
and must be reasonably related to the goals of expeditious,
professional, efficient, cost-effective and fair resolution of
asbestos claims.
(b) 
APPLICATION
TO
EXISTING
ASBESTOS
TRUSTS.—
(1) IN GENERAL.—This title shall not apply to
any asbestos trust in existence as of the date of en-
actment of this title, except as provided in para-
graph (2).
(2) ELECTION.—An asbestos trust may elect to
be subject to this title by providing written notice of
131
such election to the OAC, in which case the trust
will have the same rights and responsibilities under
this title as any person who is not a trust. A valid
election under this paragraph shall be irrevocable.
(c) SETTLEMENTS PRESERVED.—Nothing in this
title—
(1) invalidates any settlement of asbestos
claims entered into prior to the date of enactment
of this title; or
(2) revokes or negates any asbestos defendant’s
standing offer to settle existing asbestos claims.
(d) OTHER COMPENSATION.—This title shall not be
construed to affect the scope or operation of any workers’
compensation law or veterans’ disability benefit program,
to affect the exclusive remedy provisions of any such law,
or to authorize any lawsuit which is barred by any such
provision of law.
(e) SUCCESSOR LIABILITY.—Nothing in this title is
intended to displace otherwise applicable law governing
any liability arising from the defendants’ status as trans-
feree or successor with respect to a change in ownership
of corporate assets.
SEC. 346. ANNUAL REPORTS.
The Administrator shall submit an annual report to
the President and Congress.
132
SEC. 347. ENFORCEMENT.
The Administrator may enforce any obligation im-
posed on any person by this title in a district court of
the United States, and such courts shall have exclusive
jurisdiction over such actions without regard to the
amount in controversy or citizenship of the parties. The
Administrator, if successful, shall be entitled to costs, in-
cluding attorney’s fees.
SEC. 348. QUALIFYING NATIONAL SETTLEMENT PLAN.
Any defendant which is party to a Qualifying Na-
tional Settlement Plan may elect to defer the application
of this title (other than sections 310 through 316 and sec-
tion 335) to asbestos claims against that defendant for
a period not exceeding 7 years from a date relative to the
commencement of the Qualified National Settlement Plan.
The Administrator shall, by rule, adopt procedures for
processing requests for deferral under this section. If the
request for deferral is accepted, the deferred defendant
and any asbestos claims or third party asbestos claims
against the deferred defendant shall not be subject to the
provisions of this title (other than sections 310 through
316 and section 335).
SEC. 349. SEVERABILITY.
If any provision of this title or the application of such
provision to any person or circumstance is held invalid,
it is the intent of Congress that the remainder of this title
133
and application of such provision to other persons or cir-
cumstances shall not be affected thereby.
SEC. 350. SETTLEMENTS.
For a period of 7 years after the date of enactment
of this title, a claimant or a defendant may specifically
enforce, in any applicable Federal or State court where
the claimant is alleging that the claimant was exposed to
asbestos or where the claimant is currently domiciled, any
written settlement agreement which was agreed to by the
claimant or the claimant’s attorney and the defendant be-
fore such date of enactment.
TITLE IV—EMPLOYEES EXPOSED
TO TOXIC SUBSTANCES AND
HEAVY METALS
SEC 401. ELIGIBILITY OF EMPLOYEES EXPOSED TO OTHER
TOXIC SUBSTANCES AND HEAVY METALS.
(a) IN GENERAL.—A claim may be submitted under
this title for compensation for illnesses, impairments, dis-
eases, or death for which the claimant can establish that
exposure to a hazardous substance occurred while a cov-
ered employee, as defined under section 201(5), while em-
ployed at a Department of Energy facility listed under sec-
tion 201(4), and that such exposure was a contributing
factor to the illness, disease, or death. Claims shall be sub-
mitted in the manner specified under section 8121 of title
134
5, United States Code, for a determination pursuant to
section 212. Except as provided in this title, claims shall
be administered and compensation paid pursuant to the
terms and conditions of this title. Claims for occupational
illness, disease or death shall not be covered under this
title which are specifically covered under title I (beryllium
diseases), title II (radiogenic diseases), or title III (asbes-
tos diseases).
(b) QUESTIONNAIRE.—The Secretary of Labor shall
develop a questionnaire for the claimant to identify the
history of employment hazards to a covered employee at
a Department of Energy facility and to provide docu-
mentation to support the claim. The Secretary of Labor
shall provide the claimant with an opportunity to identify
documents and information in the possession of the De-
partment of Energy or its contractors which the claimant
believes will support their claim.
SEC 402. ESTABLISHMENT OF A PHYSICIANS PANEL BY THE
SECRETARY OF HEALTH AND HUMAN SERV-
ICES.
(a) IN GENERAL.—The Secretary of Health and
Human Services shall, in consultation with the Association
of Occupational Health Clinics, appoint one or more 3-
member Physicians Panels, depending on geographic
needs and the size of the caseload, composed of physicians
135
with experience and competency in diagnosing occupa-
tional illnesses. Each member shall be paid at the rate
of pay payable for Level III of the Executive Schedule for
each day (including travel time) the member is engaged
in the work of the panel. The Secretary shall also provide
necessary administrative support for the panel to conduct
its work.
(b) DEEMED EXPERT PANEL.—The Secretary of
Labor shall deem the panel appointed under subsection
(a) to be an expert panel for purposes of medical rec-
ommendation. However, a claimant may seek and present
a second opinion to the Secretary of Labor in the event
that a claimant disputes a determination or recommenda-
tion by a panel.
(c) COSTS.—Costs of operating the panels shall be
reimbursed by the Secretary of Energy from the Energy
Employees Occupational Illness Act Fund.
SEC. 403. ELIGIBILITY DETERMINATION.
(a) IN GENERAL.—The Secretary of Labor shall for-
ward claims to the Secretary of Health and Human Serv-
ices when there is a need for a determination whether oc-
cupational exposure to a hazardous substance was a con-
tributing factor to the illness, impairment, disease, or
death of a claimant, and the Secretary of Labor is unable
136
to make an affirmative determination based on the infor-
mation submitted by the claimant.
(b) PANEL AND CLAIMS.—Upon receipt of a claim
from the Secretary of Labor, the Secretary of Health and
Human Services shall forward such claims within 7 days
to a physicians panel. The Secretary shall, upon passage,
develop procedures for receiving, tracking, and returning
recommendations to the Secretary of Labor, and for em-
ploying and providing services to the panels.
(c) PANEL ACTION.—The panels shall promptly re-
view claims, including medical records and work history,
submitted by the Secretary of Labor, and determine
whether exposure to a hazardous substances was a con-
tributing factor to the employee s illness, disease, or death.
Claims shall be reviewed and determinations issued, when-
ever practical, within 60 days. If a determination shall
take more than 60 days, the Secretary of Labor and the
claimant shall be notified of the date by which a deter-
mination shall be issued.
(d) EXPOSURE INFORMATION.—Where exposure in-
formation is insufficient or non existent, the panels shall
evaluate exposure risks by determining the nature of the
job hazards by identifying job titles held by the employee,
length of employment, type of work activities, types of oc-
cupational hazards, length of time exposed to these haz-
138
ducted free of charge at the Veterans’ Administration hos-
pital nearest to their place of residence and such workers
shall receive free treatment for ailments and illnesses iden-
tified by such physicians as potentially work-related. Such
workers shall also receive reimbursement for travel and
lodging expenses.
SEC 404. ESTABLISHMENT OF OCCUPATIONAL DISEASE
PRESUMPTIONS.
(a) IN GENERAL.—In addition to the occupational
disease presumptions established in titles I and II, the
Secretary of Health and Human Services shall direct that
a panel establish a list of illnesses and diseases which,
based on occupational exposure to certain hazardous sub-
stances or based on employment in certain industrial or
laboratory processes, are potentially attributable to em-
ployment at Department of Energy facilities. This list of
presumptions shall serve as guidance to the panels in expe-
diting and improving the quality of recommendations, and
shall be provided to the Secretary of Labor for use in de-
veloping guidance for making claims determinations. Such
list shall be published 12 months after the establishment
of this program, updated on an annual basis thereafter,
and provided as a report to Congress.
(b) LIST OF PRESUMPTIONS.—In establishing a list
of presumptions, a panel shall—
139
(1) identify and categorize the types and pat-
terns of diseases which are potentially attributable
to employment at a listed Department of Energy fa-
cility, including those illnesses, impairments, dis-
eases, and deaths identified through medical screen-
ing programs conducted through the Department of
Energy’s Office of Environment, Safety and Health,
(including the former worker medical program au-
thorized under Section 3162 of the Fiscal Year 93
Defense Authorization Act (42 USC 7274(i))), Na-
tional Institute of Occupational Safety and Health
health studies, peer reviewed epidemiology studies,
and Department of Energy medical programs;
(2) identify and apply presumptions that are
supported in the scientific and medical literature
and in standards established by the Committee on
the Biological Effects of Ionizing Radiation of the
National Academy of Sciences, and where there are
biological indicators that can be used, a panel shall
specify diagnostic tests required to establish a pre-
sumption that exposure or ingestion of a particular
substance or compound will significantly contribute
to illness, impairments, disease, or death;
(3) evaluate site specific history of working con-
ditions at certain types of facilities (such as gaseous
140
diffusion plants, calcining facilities, reactors, etc.),
and the adequacy of protective measures provided to
exposed workers over the history of operations;
(4) determine whether patterns of diseases exist
that are potentially attributable linked to workplace
exposures;
(5) determine whether workers were adequately
informed of exposure hazards;
(6) determine whether there are presumptions
of workplace causation that have been established
for workers similarly exposed in other hazardous in-
dustries or occupations (such as firefighters);
(7) determine whether workers were involved in
accidents where excessive exposures occurred;
(8) determine whether workers exposed to haz-
ardous substances received adequate follow-on emer-
gency medical treatment and monitoring and subse-
quent medical attention to determine health impair-
ment; and
(9) evaluate other factors that a panel deems
prudent and necessary.
Moreover, in addition to the 9 forgoing factors, a panel
shall evaluate those circumstances where covered employ-
ees, without their knowledge and consent, were placed at
undue risk to hazardous substances without adequate pro-
141
tections or monitoring and shall recommend whether fair-
ness and equity require that a presumption be established
in favor of employees for eligibility for compensation for
illnesses, impairments and diseases. Such recommendation
shall be incorporated in the annual report and transmitted
to Congress.
(d) REVIEW OF DATA.—The Department of Energy
shall submit reports to the Secretary of Health and
Human Services who shall, in turn, provide panels with
information on (1) historic exposure assessments and (2)
reports on ES&H practices, and (3) medical findings and
data on the Department of Energy Medical Surveillance
Program carried out under section 3162 of the 1993 De-
fense Authorization Act.
SEC. 405. PANEL SHALL REPORT DETERMINATION TO SEC-
RETARY OF LABOR.
Once a panel has made a recommendation on a claim
referred by the Secretary of Labor, it shall report its rec-
ommendation to the Secretary of Labor within 7 days of
approving a recommendation with an outline of the rea-
sons for the determination. The panel shall make its rec-
ommendation on the basis of whether workplace exposures
to hazardous substances were a substantial contributing
factor to the illness, impairment, disease, or death.
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