I
106TH CONGRESS
2D SESSION
H. R. 4263
To establish a compensation and health care program for employees and
survivors at the Department of Energy facility in Los Alamos, New
Mexico who have sustained beryllium, radiation-related, asbestos, and
hazardous substances injury, illness, or death due to the performance
of their duties, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
APRIL 12, 2000
Mr. UDALL of New Mexico (for himself and Mr. UDALL of Colorado) intro-
duced the following bill; which was referred to the Committee on the Ju-
diciary, and in addition to the Committees on Education and the Work-
force, and Ways and Means, 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 establish a compensation and health care program for
employees and survivors at the Department of Energy
facility in Los Alamos, New Mexico who have sustained
beryllium, radiation-related, asbestos, and hazardous sub-
stances injury, illness, or death due to the performance
of their duties, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives 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
‘‘Atomic Workers’ Compensation Act’’.
(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—ENERGY EMPLOYEES’ BERYLLIUM COMPENSATION
Sec. 101. Definitions.
Sec. 102. Regulatory authority to revise definitions.
Sec. 103. Administration.
Sec. 104. Exposure to beryllium in the performance of duty.
Sec. 105. Compensation for disability or death, medical services, and vocational
rehabilitation.
Sec. 106. Computation of pay.
Sec. 107. Limitations on receiving compensation.
Sec. 108. Coordination of benefits.
Sec. 109. Alternative compensation.
Sec. 110. Payment in full settlement of claims against the United States and
the employee’s employer.
Sec. 111. Filing of claim.
Sec. 112. Time limitation on filing a claim.
Sec. 113. Determination and award of claims.
Sec. 114. Review of award.
Sec. 115. Appeal.
Sec. 116. Reconsideration of denial of claim.
Sec. 117. Resolution of issues in the award or denial of compensation; costs of
administration.
Sec. 118. Representation; fees for services.
Sec. 119. Status of award; certain claims not affected.
Sec. 120. Assignment of claim.
Sec. 121. Subrogation of the United States.
Sec. 122. Energy employees’ beryllium compensation fund.
Sec. 123. Forfeiture of benefits by convicted felons.
Sec. 124. Civil service retention rights.
Sec. 125. Annual report.
Sec. 126. Authorization of appropriations.
Sec. 127. Regulations.
Sec. 128. Construction.
Sec. 129. Conforming amendments.
Sec. 130. Effective date.
TITLE II—NUCLEAR EMPLOYEES RADIATION COMPENSATION
Sec. 201. Definitions.
Sec. 202. Administration.
Sec. 203. Occupational exposure to radiation and other hazardous substances.
Sec. 204. Compensation for disability or death, medical services, and vocational
rehabilitation.
Sec. 205. Computation of pay.
Sec. 206. Limitations on receiving compensation.
Sec. 207. Coordination of benefits.
Sec. 208. Right to alternative compensation.
Sec. 209. Payment in full settlement of claims against the United States and
the employee’s employer.
Sec. 210. Filing of claim.
Sec. 211. Time limitation on filing a claim.
Sec. 212. Determination and award of claims.
Sec. 213. Review of award.
Sec. 214. Appeal.
Sec. 215. Reconsideration of denial of claim.
Sec. 217. Representation; fees for services.
Sec. 218. Status of award; certain claims not affected.
Sec. 219. Assignment of claim.
Sec. 220. Subrogation of the United States.
Sec. 221. Nuclear employees’ radiation compensation fund.
Sec. 222. Forfeiture of benefits by convicted felons.
Sec. 223. Civil service retention rights.
Sec. 224. Annual report.
Sec. 225. Authorization of appropriations.
Sec. 226. Regulations; regulatory authority.
Sec. 227. Construction.
Sec. 228. Conforming amendments.
Sec. 229. Effective date.
TITLE III—ASBESTOS COMPENSATION
Subtitle A—Establishment and Procedure
Sec. 301. Establishment of the Office of Asbestos Compensation.
Sec. 302. Medical eligibility review.
Sec. 303. Election of administrative process; settlement offers.
Sec. 304. Claimant’s choice of forum.
Sec. 305. Administrative adjudication.
Sec. 306. Appeals; judicial review.
Sec. 307. Gathering and maintenance of information.
Sec. 308. Legal assistance program.
Sec. 309. Time limits for dispositions.
Subtitle B—Law Applicable to Asbestos Adjudications
Sec. 310. Medical eligibility.
Sec. 311. Damages.
Sec. 312. Statute of limitations or repose.
Sec. 313. Come back rights.
Sec. 314. Class actions, aggregations of claims and venue.
Sec. 315. Joint and several liability.
Sec. 316. Core claims.
Sec. 317. Special rules applicable to section 305 adjudications.
Sec. 318. Special rules applicable to the trustee.
Subtitle C—Eligible Medical Categories
Sec. 320. Eligible medical categories.
Sec. 321. Asbestos-related nonmalignant conditions with impairment.
Sec. 322. Asbestos-related mesothelioma.
Sec. 323. Asbestos-related lung cancer.
Sec. 324. Asbestos-related other cancer.
Sec. 325. Medical testing reimbursement.
Subtitle D—Funding
Sec. 330. Assessment and enforcement.
Sec. 331. Fiscal and financial management of the asbestos compensation fund.
Sec. 332. Authorization for appropriations and offsetting collections.
Subtitle E—Transition
Sec. 335. Applicability; transitional civil actions.
Subtitle F—Definitions
Sec. 340. Definitions.
Subtitle G—Miscellaneous Provisions
Sec. 345. Relationship to other laws.
Sec. 346. Annual reports.
Sec. 347. Enforcement.
Sec. 348. Qualifying national settlement plan.
Sec. 349. Severability.
Sec. 350. Settlements.
TITLE IV—EMPLOYEES EXPOSED TO TOXIC SUBSTANCES AND
HEAVY METALS
Sec.
401. Eligibility of employees exposed to other toxic substances and heavy
metals.
Sec. 402. Establishment of a physicians panel by the Secretary of Health and
Human Services.
Sec. 403. Eligibility determination.
Sec. 404. Establishment of occupational disease presumptions.
Sec. 405. Panel shall report determination to Secretary of Labor.
SEC. 2. FINDINGS.
The Congress finds that—
(1) Since World War II Federal nuclear activi-
ties have been explicitly recognized by the United
States Government as an a ultra-hazardous activity
under Federal law. Nuclear weapons production in-
volved unique dangers, including potential cata-
strophic nuclear accidents that private insurance
carriers would not cover, as well as chronic expo-
sures to radioactive and hazardous substances, such
as beryllium, that even in small amounts could cause
medical harm.
(2) Since the inception of the nuclear weapons
program and for several decades afterwards, large
numbers of nuclear weapons workers at Department
of Energy sites and at vendors who supplied the
Cold War effort were put at risk without their
knowledge and consent for reasons that, documents
reveal, were driven by fears of adverse publicity, li-
ability, and employee demands for hazardous duty
pay.
(3) Numerous previous secret records docu-
mented unmonitored radiation, beryllium, heavy
metals, and toxic substances’ exposures and con-
tinuing problems at the Department of Energy and
vendor sites across the country, where since World
War II the Department of Energy and its prede-
cessors have been self-regulating with respect to nu-
clear safety and occupational safety and health. No
other hazardous Federal activity has been permitted
to have such sweeping self-regulatory powers.
(4) The Department of Energy policy to litigate
occupational illness claims regardless of merit has
deterred workers from filing workers compensation
claims and imposed major financial burdens for
workers who sought compensation. Department of
Energy contractors have been held harmless, even
for acts of negligence, while the Department of En-
ergy workers were denied workers compensation cov-
erage for occupational disease. The policy to avoid
legal liabilities at all costs has been in place for dec-
ades.
(5) Over the past 20 years more than two
dozen scientific findings have emerged that indicate
that Department of Energy workers are experiencing
increased risks of dying from cancer and nonmalig-
nant diseases at numerous facilities that provided
for the nation’s nuclear deterrent. Several of these
studies also establish a correlation between excess
diseases and exposure to radiation and beryllium.
(6) While linking exposure to occupational haz-
ards with the development of occupational disease is
sometimes difficult, scientific evidence supports the
conclusion that occupational exposure to dust par-
ticles or vapor of beryllium, even where there was
compliance with the standards in place at the time,
can cause beryllium sensitivity and chronic beryllium
disease. Furthermore, studies indicate than 98 per-
cent of radiation induced cancers within the Depart-
ment of Energy complex occur at dose levels below
existing legal thresholds for proof. Further, that
workers at Department of Energy sites were exposed
to heavy metals and toxic substances at levels that
will lead or contribute to illness and diseases.
(7) Existing information indicates that State
workers’ compensation programs are not a uniform
means to provide adequate compensation for the
types of occupational illnesses and diseases related
to the prosecution of the Cold War effort.
(8) The civilian men and women who performed
duties uniquely related to the Department of Ener-
gy’s nuclear weapons production program over the
last 50 years should have efficient, uniform, and
adequate compensation for beryllium-related health
conditions, radiation-related health conditions, asbes-
tos-related health conditions, and toxic substances-
related health conditions in order to assure fairness
and equity.
(9) This situation is sufficiently unique to the
Department of Energy’s nuclear weapons production
program that it is appropriate for Congressional ac-
tion.
TITLE I—ENERGY EMPLOYEES’
BERYLLIUM COMPENSATION
SEC. 101. DEFINITIONS.
For the purpose of this title:
(1) DEPARTMENT OF ENERGY.—The term ‘‘De-
partment of Energy’’ includes the predecessor agen-
cies of the Department of Energy.
(2) SECRETARY.—The term ‘‘Secretary’’ unless
otherwise specified means the Secretary of Energy.
(3) DEPARTMENT OF ENERGY FACILITY.—The
term ‘‘Department of Energy facility’’ means any
building, structure, or premises, including the
grounds upon which they are located, in which oper-
ations are conducted by, or on behalf of, the Depart-
ment of Energy in Los Alamos, New Mexico and
with regard to which the Department of Energy has
a proprietary interest or has entered into a contract
with an entity to provide management and oper-
ation, management and integration, or environ-
mental remediation.
(4) COMPENSATION.—The term ‘‘compensa-
tion’’ means the money allowance payable under this
title and any other benefits paid for from the En-
ergy Employees’ Beryllium Compensation Fund, in-
cluding the retroactive compensation payable pursu-
ant to section 109.
(5) COVERED EMPLOYEE.—The term ‘‘covered
employee’’ means—
(A) an employee of any entity in Los Ala-
mos, New Mexico, that contracted or subcon-
tracted with the Department of Energy to pro-
vide management and operations, management
and integration, production, testing, research,
development, environmental remediation, waste
management, construction, uranium enrich-
ment, or other services at a Department of En-
ergy facility or any entity that supplied ura-
nium conversion or manufacturing services to,
for, or on behalf of, the Department of Energy,
including, those entities identified at section
201(3); or
(B) an individual defined as an employee
in section 8101(1) of title 5, United States
Code, who may have been exposed to beryllium
at a Department of Energy facility in Los Ala-
mos, New Mexico.
(6) COVERED ILLNESS.—The term ‘‘covered ill-
ness’’ means any of the following conditions:
(A) Beryllium Sensitivity, established by
an abnormal beryllium lymphocyte proliferation
test performed on either blood or lung lavage
cells.
(B) Chronic Beryllium Disease, established
by—
(i) beryllium sensitivity, as defined in
subparagraph (A), and
(ii) lung pathology consistent with
Chronic Beryllium Disease, such as—
(I) 
a 
lung 
biopsy 
showing
granulomas or a lymphocytic process
consistent with Chronic Beryllium
Disease,
(II) a computerized axial tomog-
raphy scan showing changes con-
sistent with Chronic Beryllium Dis-
ease, or
(III) pulmonary function or exer-
cise testing showing pulmonary defi-
cits consistent with Chronic Beryllium
Disease; or
(C) any injury or illness sustained as a
consequence of a covered illness as defined in
subparagraph (A) or (B).
(7) MONTHLY PAY.—The term ‘‘monthly pay’’
means—
(A) for covered employees employed at the
time of injury or inception of disability, the
monthly pay at the time of injury, the monthly
pay at the inception of disability, or the month-
ly pay at the time compensable disability re-
curs, if the recurrence begins more than 6
months after the covered employee resumes reg-
ular full-time employment, whichever is greater,
except when otherwise determined under section
8113(a) of title 5, United States Code;
(B) for covered employees who are unem-
ployed at the inception of disability, the month-
ly pay of the employee’s last covered employ-
ment calculated as if the employee were still
employed, or the monthly pay of other employ-
ees of the same or most similar class working
in the same or most similar employment in the
same or neighboring locality, whichever is great-
er.
(8) TIME OF INJURY.—The term ‘‘time of in-
jury’’ means the last date on which a covered em-
ployee was exposed to beryllium in the performance
of duty as specified in section 104.
(9) INCEPTION OF DISABILITY.—The term ‘‘in-
ception of disability’’ means the date on which the
covered employee or claimant becomes aware, or in
the exercise of reasonable diligence or by reason of
medical advice should have been aware, of the rela-
tionship between the employment, the covered ill-
ness, and the death or disability.
(10) MISCELLANEOUS
TERMS.—The following
terms have the meaning given those terms in section
8101 of title 5, United States Code:
(A) ‘‘physician’’;
(B) ‘‘medical, surgical, and hospital serv-
ices and supplies’’;
(C) ‘‘widow’’;
(D) ‘‘parent’’;
(E) ‘‘brother’’ and ‘‘sister’’;
(F) ‘‘child’’;
(G) ‘‘grandchild’’;
(H) ‘‘widower’’;
(I) ‘‘student’’;
(J) ‘‘price index’’;
(K) ‘‘organ’’; and
(L) ‘‘United States medical officers and
hospitals’’.
SEC. 102. REGULATORY AUTHORITY TO REVISE DEFINI-
TIONS.
(a) IN GENERAL.—Additional vendors, processors, or
producers of beryllium or related products may be des-
ignated as beryllium vendors for the purposes of this title
in regulations issued by the Secretary, upon finding that
such entities have been engaged in activities related to be-
ryllium that was produced or processed for sale to, or use
by, the Department of Energy in a manner similar to the
entities listed in section 101(4).
(b) ADDITIONAL CRITERIA.—Additional criteria by
which a claimant may establish the existence of a covered
illness, as defined in subparagraph (A) or (B) of section
101(7), may be specified in regulations issued by the Sec-
retary, after consultation with the agency that contracts
to administer this title.
SEC. 103. ADMINISTRATION.
(a) IN GENERAL.—Within 120 days of enactment of
this title, the Secretary of Energy shall enter into an
agreement with the Secretary of Labor for the administra-
tion of this title, including utilization of Department of
Labor services and facilities and for the compensation by
the Department of Energy for such administration from
the Energy Employees Beryllium Compensation Fund es-
tablished pursuant to section 122. The Secretary of Labor
is authorized to enter into a reimbursable agreement with
the Secretary of Energy for the administration of this
title. Upon entry into such agreement, the Secretary of
Labor may delegate to any officer or employee of the De-
partment of Labor all powers and duties necessary for car-
rying out the purposes of this title.
(b) JOINT AUTHORITY.—To assist and facilitate ad-
ministration of this title and the adjudication of claims,
the Secretary of Energy and the Secretary of Labor
shall—
(1) provide assistance to employees and claim-
ants in connection with this title, including assist-
ance in securing medical testing and diagnostic serv-
ices necessary to determine the existence of a cov-
ered illness as defined in section 101(7);
(2) ensure the ready availability, in paper and
electronic format, of forms necessary for making
claims, and provide employees and claimants with
necessary information under this title including,
inter alia, medical protocols necessary for medical
testing and diagnosis to determine the existence of
a covered illness, lists of approved vendors for use
in obtaining necessary laboratory services related to
such medical testing and diagnosis, and vouchers to
cover costs outlined in the medical protocols;
(3) provide such further assistance to employees
and claimants as necessary for the development of
the facts pertinent to the employee’s claim or poten-
tial claim;
(4) upon a notification that a claimant has
made a claim for benefits under this title, provide
such information to the authority with delegated re-
sponsibility for the determination and award of
claims under section 113, or review thereof under
sections 114 and 115, as the authority may request
for purposes of determining eligibility for or amount
of benefits, or verifying other information with re-
spect thereto.
In carrying out paragraph (1), the examination of workers
who believe they have ailments related to the environ-
mental conditions at their places of work in Los Alamos
shall be conducted free of charge at the Veterans’ Admin-
istration hospital nearest to their place of residence and
such workers shall receive free treatment for ailments and
illnesses identified by such physicians as potentially work-
related. Such workers shall also receive reimbursement for
travel and lodging expenses.
(c) INFORMATION.—The Secretary of Energy may re-
quire a Department of Energy contractor to provide infor-
mation concerning a claim filed under this title to the offi-
cers or employees with delegated responsibility for admin-
istering this title.
(d) PENALTY.—Failure or refusal to provide informa-
tion, or knowingly providing false information, in response
to a request pursuant to subsections (b) and (c) this sec-
tion may result in fine or imprisoned, or both, pursuant
to section 1922 of title 18, United States Code, as amend-
ed by section 129(c).
(e) PENALTY.—Whoever induces, compels, or directs
an injured employee to forego filing of any claim for com-
pensation or other benefits provided under this title or any
extension or application thereof, or willfully retains any
notice, report, claim, or paper which is required to be filed
under this title or any extension or application thereof,
or regulations prescribed thereunder, may be subjected to
fine or imprisonment, or both, pursuant to section 1922
of title 18, United States Code, as amended by section
129(c).
SEC. 104. EXPOSURE TO BERYLLIUM IN THE PERFORM-
ANCE OF DUTY.
In the absence of substantial evidence to the contrary,
a covered employee, as defined in subparagraphs (A), (B),
or (C) of section 101(6), shall be determined to have been
exposed to beryllium in the performance of duty for the
purposes of this title if, and only if, the covered employee
was employed at a Department of Energy facility, or was
present at the facility because of employment by the
United States or a contractor or subcontractor of the De-
partment of Energy, for any period of time, during a time
period when beryllium dust particles or vapor may have
been present at that facility.
SEC. 105. COMPENSATION FOR DISABILITY OR DEATH,
MEDICAL SERVICES, AND VOCATIONAL REHA-
BILITATION.
(a) COMPENSATION.—In accordance with, and except
as otherwise provided in, this title, the United States is
authorized to—
(1) upon application for compensation pursuant
to section 111, furnish the costs of all medical test-
ing and diagnostic services necessary for the claim-
ant to determine the existence of a covered illness as
defined in section 101(7), and reimburse claimant
for any additional reasonable medical expenses in-
curred in establishing the claimant’s claim;
(2) pay the compensation specified in sections
8105–8110, 8111(a), 8112–13, 8115, 8117, 8133–
8135, and 8146a (a) and (b) of title 5, United
States Code, for the disability or death from a cov-
ered illness of a covered employee who was exposed
to beryllium while in the performance of duty as de-
termined in accordance with section 104;
(3) furnish the services and other benefits spec-
ified in section 8103 of title 5, United States Code,
to a covered employee who sustains a covered illness
as a result of exposure to beryllium while in the per-
formance of duty as determined in accordance with
section 104;
(4) pay alternative compensation pursuant to
section 109, and attorneys fees as specified in sec-
tion 118; and
(5) advise a permanently disabled individual
whose disability is compensable under this title of
the availability of vocational rehabilitation and pro-
vide for furnishing vocational rehabilitation service
pursuant to the provisions of section 8104 and
8111(b) of title 5, United States Code;
unless the covered illness or death was caused by one of
the circumstances set forth in paragraphs (1) or (3) of
subsection (a) of section 8102 of title 5, United States
Code.
(b) PAYMENT FROM FUND.—All compensation and
awards under this title shall be paid from the Energy Em-
ployees’ Beryllium Compensation Fund.
(c) PAYMENT AND EFFECTIVE DATE.—No payment
of compensation may be made under this title for any pe-
riod prior to the effective date of this title, except for the
alternative compensation specified in section 109.
SEC. 106. COMPUTATION OF PAY.
(a) IN GENERAL.—Except as otherwise provided by
this title, computation of pay under this title shall be de-
termined in accordance with section 8114 of title 5,
United States Code.
(b) AVERAGE ANNUAL EARNINGS.—If either of the
methods of determining the average annual earnings spec-
ified in sections 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 rep-
resents the annual earning capacity of the covered em-
ployee in the employment in which the employee was work-
ing at the time of injury or inception of disability, which-
ever is greater, having regard to the previous earnings of
the employee in similar employment, and for other employ-
ees 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 im-
mediately preceding the time of injury or inception of dis-
ability, whichever is greater.
SEC. 107. LIMITATIONS ON RECEIVING COMPENSATION.
(a) IN GENERAL.—While a covered employee as de-
fined in section 101(6)(C) is receiving compensation under
this title, or if the covered employee has been paid a lump
sum in commutation of installment payments until the ex-
piration of the period during which the installment pay-
ments would have continued pursuant to section 8135 of
title 5, United States Code, the covered employee may not
receive salary, pay, or remuneration of any type from the
United States, except
(1) in return for service actually performed;
(2) pension for service in the Army, Navy, or
Air Force;
(3) other benefits administered by the Depart-
ment of Veterans Affairs unless such benefits are
payable for the same covered illness or the same
death;
(4) retired pay, retirement pay, retainer pay, or
equivalent pay for service in the Armed Forces or
other uniformed service; and
(5) retirement benefits under subchapter III of
chapter 83 of title 5, United States Code, or other
retirement system for employees of Federal or State
government.
However, eligibility for or receipt of benefits under sub-
chapter III of chapter 83 of title 5, United States Code,
or another retirement system for employees of Federal or
State government, does not impair the right of the em-
ployee to compensation for scheduled disabilities specified
by section 8107 of title 5, United States Code.
(b) ELECTION.—An individual eligible to receive ben-
efits under this title because of a covered illness or death
of a covered employee as defined in section 101(6)(C), who
also is entitled to receive from the United States under
a provision of statute other than this title payments or
benefits for that covered illness or death (except proceeds
of an insurance policy), because of service by the covered
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 by regulation.
The election when made is irrevocable, except as otherwise
provided by statute, or unless the level of compensation
and other benefits under the other statutory provision or
under this title changes, in which event the individual is
entitled to make a new informed election.
(c) ELECTION.—While a covered employee is receiv-
ing compensation under this title, or if the covered em-
ployee has been paid a lump sum commutation of install-
ment payments until the expiration of the period during
which the installment payments would have continued, the
covered employee may not receive payment of any benefits
under any other Federal workers’ compensation system for
the same covered illness or the same death. Such an indi-
vidual shall elect which benefits to receive. The individual
shall make the election within the time allowed by the Sec-
retary of Labor by regulation. The election when made
is irrevocable, unless the level of compensation and other
benefits under the other Federal program or under this
title changes, in which event the individual is entitled to
make a new informed election.
(d) ELECTION.—An individual eligible to receive ben-
efits under this title because of a covered illness or death
of a covered employee who is also entitled to receive bene-
fits because of the same covered illness or death of the
covered employee from a State workers’ compensation sys-
tem shall elect which benefits to receive, unless—
(1) at the time of injury the State workers’
compensation coverage for the covered employee was
secured by a policy or contract of insurance; and
(2) the Secretary waives the requirement to
make such an election.
An individual required to make the election specified in
this subsection shall make the election within the time al-
lowed by the Secretary of Labor by regulation. The elec-
tion when made is irrevocable, unless the level of com-
pensation and other benefits under the State program or
under this title changes, in which event the individual is
entitled to make a new informed election.
SEC. 108. COORDINATION OF BENEFITS.
Except where the Secretary issues a waiver pursuant
to section 107(d)(2), a claimant awarded benefits under
this title as a result of a covered illness or death of a cov-
ered employee who receives benefits because of the same
covered illness or death from any other State or Federal
workers compensation system and who has elected benefits
under this title pursuant to subsection (c) or (d) of section
107, shall receive compensation as specified in this title
for the covered illness or death, reduced by the amount
of any workers’ compensation benefits that the claimant
receives or will receive on account of the covered illness
or death under any State or Federal workers’ compensa-
tion system during the period that awarded benefits are
provided under this title, after deducting the reasonable
costs, as determined by the Secretary of Labor by regula-
tion, of obtaining such benefits.
SEC. 109. ALTERNATIVE COMPENSATION.
(a) IN GENERAL.—A covered employee, who was ex-
posed to beryllium in the performance of duty, as deter-
mined in accordance with section 104, and who, in
addition—
(1) was diagnosed as having a beryllium-related
pulmonary condition, whether or not based upon the
criteria necessary to establish the existence of a cov-
ered illness under section 101(7), that was deter-
mined, either contemporaneously or at any time
later, to be consistent with Chronic Beryllium Dis-
ease, as defined in section 101(7)(B), and
(2) demonstrates the existence of a beryllium-
related pulmonary condition, and its diagnosis, by
medical documentation created during the covered
employee’s lifetime or at the time of death or au-
topsy,
may elect to receive alternative compensation in the
amount of $200,000, subject to adjustment pursuant to
section 8146a(a) of title 5, United States Code, together
with those medical services and benefits specified in sec-
tion 8103 of title 5, United States Code, in lieu of any
other compensation to which the covered employee or the
employee’s survivors might otherwise be awarded under
this title.
(b) DEATH OF COVERED EMPLOYEE.—If a covered
employee who would have been eligible to make the elec-
tion provided by this section dies before the effective date
of this title, or before making the election, whether or not
the death is the result of a beryllium-related condition, the
employee’s survivor or survivors may make the election to
receive the alternative compensation specified in sub-
section (a) of this section in lieu of any other compensa-
tion that either the covered employee or the employee’s
survivors might otherwise have been awarded under this
title. The right to make an election pursuant to this sec-
tion shall be afforded to survivors in the order of prece-
dence set forth in section 8109 of title 5, United States
Code.
(c) ELECTION TO RECEIVE RETROACTIVE COM-
PENSATION.—The election to receive retroactive com-
pensation under this section in lieu of other compensation
under this title shall be made at any time subsequent to
filing a claim pursuant to section 111, up to and including
30 days after either the date of a decision determining
an award of compensation for total disability or partial
disability under this title or the date that the Secretary
informs the employee or the employee’s survivor of the
right to make such an election, whichever is later, unless
the time is extended upon request by the employee or his
or her survivor. The election when made by a covered em-
ployee or survivor is irrevocable and binding on all sur-
vivors.
(d) LIMITATION.—When a covered employee, or the
employee’s survivor, has made an election to receive alter-
native compensation pursuant to this section, no other
payment of compensation under this title may be made
on account of the same or any other covered illness or
beryllium-related pulmonary condition of that employee.
(e) DETERMINATION.—A determination that a cov-
ered employee or a survivor of a covered employee has es-
tablished a beryllium-related pulmonary condition pursu-
ant to subsection (a) of this section does not constitute
a determination that the covered employee, or a survivor
of the covered employee, has established the existence of
a covered illness.
SEC. 110. PAYMENT IN FULL SETTLEMENT OF CLAIMS
AGAINST THE UNITED STATES AND THE EM-
PLOYEE’S EMPLOYER.
(a) IN GENERAL.—If an individual elects to accept
payment under this title with respect to a covered illness,
beryllium-related pulmonary condition, or death of a cov-
ered employee, that acceptance of payment shall be in full
settlement of all claims against the United States under
chapter 171 of title 28, United States Code (relating to
tort procedures), or against the covered employee’s em-
ployer (with the exception of intentional torts), that arise
out of the employee’s exposure to beryllium in the per-
formance of his or her duties within the meaning of section
104.
(b) APPLICATION.—This section does not apply to an
administrative or judicial proceeding under a State or
Federal workers’ compensation statute subject to sections
107 and 108, nor to any litigation, whether arising out
of the employee’s exposure to beryllium in the performance
of the employee’s duties or not, in State or Federal court
as of the effective date of this title.
SEC. 111. FILING OF CLAIM.
A claim for compensation under this title shall be
submitted to the Secretary of Labor, or the Secretary of
Labor’s designee, in the manner specified in section 8121
of title 5, United States Code, for determination pursuant
to section 113.
SEC. 112. TIME LIMITATION ON FILING A CLAIM.
(a) IN GENERAL.—A claim for compensation under
this title must be filed within the later of—
(1) 7 years after the effective date of this title,
or
(2) 7 years after the date the claimant first be-
comes aware of—
(A) a diagnosis of a covered illness or a be-
ryllium-related pulmonary condition, or death
resulting from such illness or condition; and
(B) the causal connection of that illness,
condition, or death to exposure to beryllium in
the performance of duty as a covered employee.
(b) NEW LIMITATION PERIOD.—A new limitations
period commences with each later diagnosis of a covered
illness or beryllium-related pulmonary condition different
from that previously diagnosed.
(c) TIMELY FILING.—The timely filing of a disability
claim because of a covered illness or beryllium-related pul-
monary condition will satisfy the time requirements for a
death claim based on the same illness or condition.
SEC. 113. DETERMINATION AND AWARD OF CLAIMS.
(a) IN GENERAL.—Upon entry into the agreement
with the Secretary of Energy authorized by section 103(a),
the Secretary of Labor, or the Secretary’s designee, shall
determine and make findings of fact and make an award
for or against payment of compensation under this title
within 120 days of the filing of a claim pursuant to section
111, after—
(1) considering the claim presented by the bene-
ficiary, the results of any medical test or diagnosis
undertaken to determine the existence of a covered
illness, and any report furnished by the Department
of Energy; and
(2) completing such investigation as the Sec-
retary or the Secretary’s designee considers nec-
essary.
(b) CONSTRUCTION.—Except as otherwise specified
in this title, the determination of a claim for compensa-
tion, and any award and payment of compensation under
this section shall be made in accordance with section
8124(a) of title 5, United States Code. Unless a hearing
is requested pursuant to section 114(a), the determina-
tion, findings, and any award rendered hereunder shall be-
come final and conclusive at the expiration of the thirtieth
day after the date of the Secretary of Labor’s decision and
service thereof upon claimant.
SEC. 114. REVIEW OF AWARD.
(a) IN GENERAL.—A claimant for compensation is
entitled to a hearing on his or her claim before an adminis-
trative law judge qualified under section 3105 of title 5,
United States Code, upon request made by claimant with-
in 30 days after the date of issuance and service of the
Secretary of Labor’s findings and decision under section
113, and to the presentation at such hearing of evidence
in further support of the claim. The administrative law
judge may extend the period for requesting a hearing
under this section upon petition of the claimant and good
cause shown.
(b) HEARING.—The administrative law judge shall,
in the conduct of a hearing requested pursuant to sub-
section (a) of this section and in the evaluation and deter-
mination of claimant’s claim, have those powers, duties
and responsibilities vested by section 8124(b) of title 5,
United States Code, in the Secretary of Labor, provided
however, that the hearing shall be conducted in accordance
with the provisions of section 554 of title 5, United States
Code. Parties to a proceeding under this subsection shall
be strictly limited to the claimant and the Secretary of
Labor as represented by his or her designee.
(c) ORDERS.—The administrative law judge shall
have power to preserve and enforce order during any pro-
ceeding under this section; to issue subpoenas for, to ad-
minister oaths to, and to compel the attendance and testi-
mony of witnesses, or the production of books, papers,
documents, and other evidence, or the taking of deposi-
tions before any designated individual competent to ad-
minister oaths; to examine witnesses; and to do all things
conformable to law which may be necessary to enable the
administrative law judge effectively to discharge his duties
under this title.
(d) PENALTY.—If any person in proceedings before
an administrative law judge under this section disobeys
or resists any lawful order or process, or misbehaves dur-
ing a hearing or so near the place thereof as to obstruct
the same, or neglects to produce, after having been or-
dered to do so, any pertinent book, paper, or document,
or refuses to appear after having been subpoenaed, or
upon appearing refuses to take the oath as a witness, or
after having taken the oath refuses to be examined accord-
ing to law, the administrative law judge shall certify the
facts to the district court having jurisdiction in the place
in which he is sitting (or to the United States District
Court for the District of Columbia if the administrative
law judge is sitting in such District) which shall thereupon
in a summary manner hear the evidence as to the acts
complained of, and, if the evidence so warrants, punish
such person in the same manner and to the same extent
as for a contempt committed before the court, or commit
such person upon the same conditions as if the doing of
the forbidden act had occurred with reference to the proc-
ess of or in the presence of the court.
(e) RECORD.—The record shall close at the conclu-
sion of the hearing, except where the administrative law
judge grants, for good cause, an extension not to exceed
30 days for the submission of additional evidence and ar-
gument.
(f) DECISION NOTICE.—Within 45 days of the clos-
ing of the record, and no later than 180 days after receipt
of claimant’s request for hearing, the administrative law
judge shall notify the claimant in writing of the adminis-
trative law judge’s decision and any award the administra-
tive law judge may make, and of the basis for such deci-
sion and award. In accordance with the facts found on
review, the administrative law judge may end, decrease,
or increase the compensation previously awarded, or
award compensation previously refused or discontinued.
(g) EFFECT OF DECISION.—Unless appealed to the
Benefits Review Board as provided in section 115, the de-
cision by the administrative law judge, and any award ren-
dered as a result thereof, shall become effective upon filing
with the Secretary of Labor, or the Secretary of Labor’s
designee, and service upon the claimant, and shall become
final and conclusive at the expiration of the thirtieth day
thereafter.
SEC. 115. APPEAL.
(a) IN GENERAL.—Within 30 days of the effective
date of a decision rendered by an administrative law judge
under section 114, an aggrieved claimant may seek review
of such determination before the Benefits Review Board
established pursuant to section 921(b) of title 33, United
States Code. The Benefits Review Board may extend the
period for requesting review under this section, not to ex-
ceed an additional 30 days, upon petition of the claimant
and good cause shown.
(b) AUTHORITY OF BENEFITS REVIEW BOARD.—The
Benefits Review Board is authorized to hear and deter-
mine an appeal under this section in accordance with and
pursuant to the authority vested in the Board by section
921(b) of title 33, United States Code. The Board shall
make its final determination with regard to such appeal
within 240 days following receipt of claimant’s request for
review. Parties to a proceeding under this subsection shall
be strictly limited to the claimant and the Secretary of
Labor as represented by the Secretary of Labor’s des-
ignee.
(c) COURT REVIEW.—A claimant adversely affected
or aggrieved by a final determination and order of the
Benefits Review Board may obtain review thereof in the
United States court of appeals for the circuit in which the
claimant resides pursuant to section 921(c) of title 33,
United States Code.
SEC. 116. RECONSIDERATION OF DENIAL OF CLAIM.
(a) IN GENERAL.—Notwithstanding any other provi-
sion of this title, a claimant or eligible surviving bene-
ficiary may obtain reconsideration of a decision denying
coverage under this title after the promulgation by the
Secretary, pursuant to section 102, of regulations desig-
nating additional processors or producers of beryllium or
related products, or regulations identifying additional cri-
teria for establishing the existence of a covered illness.
(b) RECONSIDERATION.—Notwithstanding any other
provision of this title, a claimant or eligible surviving bene-
ficiary may obtain reconsideration of a decision denying
coverage under this title based on new evidence or amend-
ment in the laws governing disposition of claims for bene-
fits under this title.
SEC. 117. RESOLUTION OF ISSUES IN THE AWARD OR DE-
NIAL OF COMPENSATION; COSTS OF ADMINIS-
TRATION.
(a) IN GENERAL.—Failure to render a determination
on a claim within any time period prescribed in sections
113, 114 or 115 shall result in the award of the claim
as a matter of law.
(b) RESOLVING DOUBT.—All reasonable doubt with
regard to whether a claim for compensation meets the re-
quirements of this title shall be resolved in favor of the
claimant.
(c) PHYSICIAN.—In securing medical testing and di-
agnostic services to determine the existence of a covered
illness compensable under this title, the claimant may uti-
lize a physician of the claimant’s choice, or a Department
of Energy funded or sponsored medical program or em-
ployer-provided program, if available.
(d) APPLICATION OF TITLE 5.—Except as otherwise
specified in this title, the provisions of sections 8123,
8125–8127, 8129, 8133, 8134 and 8146a(a) of title 5,
United States Code, shall govern the adjudication, award
and payment of claims, and the resolution of issues under
this title.
(e) SUIT.—A claimant may sue the Department of
Energy or its contractors in a district court of the United
States to compel the production of information or docu-
mentation requested by the Secretary of Labor, an admin-
istrative appeals judge, or the Benefits Review Board, as
the case may be, where the information or documentation
requested is not provided within 60 days from the date
the request is made. Upon successful resolution of any suit
brought pursuant to this subsection, the court shall award
claimant reasonable attorney’s fees and costs, which shall
be considered costs incurred by the Secretary of Energy
and shall not be paid from the Energy Employees Beryl-
lium Compensation Fund, or set off against, or otherwise
deducted from any payment to claimant under this title.
(f) CONSTRUCTION.—Sections 114 and 115 do not
confer the right to a hearing or of appeal on the Secretary
of Labor or the Secretary of Energy, although the Sec-
retary of Labor or the Secretary of Labor’s designee may
appear before the administrative law judge, the Benefits
Review Board, or court, as the case may be, in explanation
of the Secretary of Labor’s initial determination under
section 113 where the claimant has appealed therefrom.
(g) PAYMENT OF COSTS.—The costs incurred by the
Secretary of Labor, an administrative law judge, or the
Benefits Review Board in the administration of this title
and adjudication of claims thereunder are chargeable
against, and shall be paid from, the Energy Employees
Beryllium Compensation Fund established pursuant to
section 122.
SEC. 118. REPRESENTATION; FEES FOR SERVICES.
(a) IN GENERAL.—A claimant may authorize an at-
torney to represent the claimant in any proceeding under
this title.
(b) AMOUNT.—If the Secretary of Labor, or the Sec-
retary of Labor’s designee, declines to pay compensation,
in whole or in part, under section 113, and the person
seeking benefits under this title thereafter utilizes the
services of an attorney at law in the successful prosecution
of the claimant’s claim under section 114 or 115, there
shall be awarded, in addition to the award of compensa-
tion, a reasonable attorney’s fee, and costs, for the services
provided by the attorney under sections 113 and 114, in
an amount approved by the administrative law judge, the
Benefits Review Board, or court, as the case may be. The
award of attorney’s fees under this subsection shall be
paid by the Secretary from the Energy Employees’ Beryl-
lium Compensation Fund directly to the attorney for the
claimant in a lump sum after the compensation order be-
comes final.
(c) ARBITRARY OR CAPRICIOUS CONDUCT.—In the
event an administrative law judge, the Benefits Review
Board, or the court, as the case may be, sets aside the
denial of a claim under this title as arbitrary and capri-
cious, claimant shall be awarded, separate and apart from
and in addition to any award of attorney’s fees under sub-
section (b) of this section, reasonable attorney’s fees and
costs incurred with respect to the appeal and review neces-
sitated thereby. In the event that claimant subsequently
prevails upon remand on the claimant’s claim, claimant
shall be awarded, in addition to the award to which the
claimant is otherwise entitled under this title, 10 percent
per annum on the claimant’s claim from the date of the
original denial of the claim. Attorney’s fees, costs, and in-
terest awarded pursuant to this subsection shall be consid-
ered costs incurred by the Secretary of Labor and shall
not be paid from the Energy Employees Beryllium Com-
pensation Fund, or set off against, or otherwise deducted
from any payment to claimant under this title.
(d) LIMITATION.—Where an award of attorney’s fees
for services is allowed under this section, the attorney re-
ceiving such award shall be prohibited from charging
claimant, directly or indirectly, for the same services. A
violation of this subsection shall result in a fine of not
more than $5,000 assessed by the Secretary against the
offending attorney.
SEC. 119. STATUS OF AWARD; CERTAIN CLAIMS NOT AF-
FECTED.
(a) IN GENERAL.—Any award ordered or amount
paid pursuant to this title—
(1) shall not be considered income for purposes
of the Internal Revenue Code of 1986 and shall not
be subject to Federal income tax under the Internal
Revenue Code of 1986;
(2) shall not be included as income or resources
for purposes of determining eligibility to receive ben-
efits 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) PAYMENT UNDER THIS TITLE.—A payment
made under this title shall not be considered as any form
of compensation or reimbursement for a loss for purposes
of imposing liability on the individual receiving the pay-
ment to repay any insurance carrier for insurance pay-
ments made. A payment under this title does not affect
any claim against an insurance carrier with respect to in-
surance.
SEC. 120. ASSIGNMENT OF CLAIM.
A claim cognizable under this title is not assignable
or transferable. Any assignment or transfer of a claim for
compensation under this title is void. Compensation and
claims for compensation are exempt from claims of credi-
tors.
SEC. 121. SUBROGATION OF THE UNITED STATES.
(a) IN GENERAL.—If a covered illness, death, or be-
ryllium-related pulmonary condition for which compensa-
tion is payable under this title is caused under cir-
cumstances 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 title.
(b) REFERENCES.—For purposes of this section, ref-
erences in sections 8131 and 8132 of title 5, United States
Code, to the Employees’ Compensation Fund shall mean
the Energy Employees’ Beryllium Compensation Fund.
(c) APPLICATION.—For the purposes of this title, 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 covered employee, as defined in sec-
tion 101(4)(C).
SEC. 122. ENERGY EMPLOYEES’ BERYLLIUM COMPENSA-
TION FUND.
(a) IN GENERAL.—To carry out this title, there is
established in the Treasury of the United States the En-
ergy Employees’ Beryllium Compensation Fund, which
shall consist of
(1) sums that are appropriated for it,
(2) amounts that are transferred to it from
other Department of Energy accounts pursuant to
section 126(a), and
(3) amounts that would otherwise accrue to it
under this title.
(b) USE.—Amounts in the Energy Employees’ Beryl-
lium Compensation Fund are authorized to be used for
the payment of compensation and other benefits and ex-
penses authorized by this title and for payment of all ex-
penses incurred in administering this title. Such funds are
authorized to be appropriated to remain available until ex-
pended.
(c) DETERMINATIONS.—
(1) QUARTERLY.—Within 45 days of the end of
every quarter of every fiscal year, the Secretary shall
determine the total costs of benefits, administrative
expenses, and other payments made from the En-
ergy Employees’ Beryllium Compensation Fund dur-
ing the quarter just ended, the end-of-quarter bal-
ance in the Fund, and the amount anticipated to be
needed during the immediately succeeding 2 quar-
ters for the payment of benefits and administrative
expenses under this title.
(2) CONTENT.—Each cost determination made
in the last quarter of the fiscal year under para-
graph (1) shall show, in addition, the total costs of
benefits and expenses and other payments from the
Fund during the preceding 12-month expense period
and an estimate of the expenditures from the En-
ergy Employees’ Beryllium Compensation Fund for
the payment of benefits and expenses and other pay-
ments for each of the immediately succeeding two
fiscal years.
SEC. 123. FORFEITURE OF BENEFITS BY CONVICTED FEL-
ONS.
(a) IN GENERAL.—Any individual convicted of a vio-
lation of section 1920 of title 18, or any other Federal
or State criminal statute relating to fraud in the applica-
tion for or receipt of any benefit under this title or under
any other Federal or State workers’ compensation Act,
shall forfeit (as of the date of such conviction) any benefit
such individual would otherwise be awarded to under this
title for any covered illness for which the time of injury
was on or before the date of such conviction. Such for-
feiture shall be in addition to any action the Secretary may
take pursuant to the provisions of sections 8106 or 8129
of title 5, United States Code.
(b) LIMITATION.—
(1) IN GENERAL.—Notwithstanding any other
provision of law (except as provided under para-
graph (2)), no benefits under this title shall be paid
or provided to any individual during any period dur-
ing which such individual is confined in a jail, pris-
on, or other penal institution or correctional facility,
pursuant to that individual’s conviction of an offense
that constituted a felony under applicable law. Such
an individual shall not receive the benefits forfeited
during the period of incarceration described in this
paragraph, after the period of incarceration ends.
(2) EXCEPTION.—If an individual has one or
more dependents, as defined under section 8110(a)
of title 5, United States Code, the Secretary may,
during the period of incarceration, pay to these de-
pendents a percentage of the benefits that would
have been payable to such individual computed ac-
cording to the percentages set forth in section
8133(a) (1) through (5) of title 5, United States
Code.
(c) INFORMATION.—Notwithstanding the provision of
section 552a of title 5, United States Code, or any other
provision of Federal or State law, any agency of the
United States Government or of any State (or political
subdivision thereof) shall make available to the Secretary,
upon written request, the names and Social Security ac-
count numbers of individuals who are confined in a jail,
prison, or other penal institution or correctional facility
under the jurisdiction of that agency, pursuant to the indi-
viduals’ conviction of an offense that constituted a felony
under applicable law, which the Secretary may require to
carry out the provisions of this section.
SEC. 124. CIVIL SERVICE RETENTION RIGHTS.
In the event that a covered employee, as defined in
section 101(4)(C), resumes employment with the Federal
Government, the individual shall be entitled to the rights
set forth in section 8151 of title 5, United States Code.
SEC. 125. ANNUAL REPORT.
The Secretary shall, at the end of each fiscal year,
prepare a report with respect to the administration of this
title.
SEC. 126. AUTHORIZATION OF APPROPRIATIONS.
(a) IN GENERAL.—There is authorized to be appro-
priated to the Department of Energy for deposit into the
Energy Employees’ Beryllium Compensation Fund such
sums as are necessary to carry out the purposes of this
title, including the administration thereof. In addition, the
Department is authorized, to the extent provided in ad-
vance in appropriations Acts, to transfer amounts to the
Fund from other Department of Energy appropriations
accounts, to be merged with amounts in the Fund and
available for the same purposes.
(b) LIMITATION.—In any fiscal year, the Secretary
of Labor shall limit the amount of the compensation and
benefits payments under this title to an amount not in
excess of the sum of the appropriations to the Energy Em-
ployees’ Beryllium Compensation Fund and amounts
made available by Department of Energy transfers to the
Fund. Notwithstanding any other provision, if in any fis-
cal year the Secretary of Labor finds that estimates of
amounts contained in reports pursuant to section
122(c)(1) for the payment of compensation, other benefits,
and administrative activities authorized by this title will
exceed the amounts in the Fund, the Secretary of Labor
is required to reduce compensation and benefits payments
to the extent necessary to make up any amounts by which
benefits and other costs authorized by this title exceed the
amount in the Fund calculated on a fiscal year basis.
(c) REGULATIONS.—The Secretary of Energy, in con-
sultation with the Secretary of Labor, shall promulgate
regulations to implement this section within 120 days of
enactment.
SEC. 127. REGULATIONS.
Not later than 120 days after the date of enactment,
the Secretary of Labor shall prescribe such rules and regu-
lations as may be necessary for the administration and
enforcement of this title.
SEC. 128. CONSTRUCTION.
References in this title to a provision of another stat-
ute shall be considered references to such provision, as
amended and as may be amended from time to time.
or willfully retains any notice, report, claim, or paper
which is required to be filed under that Act or any exten-
sion or application thereof, or regulations prescribed
thereunder, shall be fined under this title or imprisoned
not more than one year, or both.’’.
SEC. 130. EFFECTIVE DATE.
This title is effective upon the date of its enactment.
TITLE II—NUCLEAR EMPLOYEES
RADIATION COMPENSATION
SEC. 201. DEFINITIONS.
For purposes of this title:
(1) DEPARTMENT OF ENERGY.—The term ‘‘De-
partment of Energy’’ includes the predecessor agen-
cies of the Department of Energy.
(2) SECRETARY.—The term ‘‘Secretary’’ unless
otherwise specified means the Secretary of Energy.
(3) DEPARTMENT OF ENERGY FACILITY.—The
term ‘‘Department of Energy facility’’ means any
building, structure, or premises, including the
grounds upon which they are located, in Los Ala-
mos, New Mexico, in which operations are conducted
by, or on behalf of, the Department of Energy and
with regard to which the Department of Energy has
a proprietary interest or has entered into a contract
with an entity to provide management and oper-
ation, management and integration, or environ-
mental remediation.
(4) DEPARTMENT OF ENERGY CONTRACTOR.—
The term ‘‘Department of Energy contractor’’
means—
(A) an entity in Los Alamos, New Mexico,
that contracted or subcontracted with the De-
partment of Energy to provide management
and operations, management and integration,
production, testing, research, development, envi-
ronmental remediation, waste management,
construction, or other services at a Department
of Energy facility.
(5) COVERED EMPLOYEE.—The term ‘‘covered
employee’’ means—
(A) an employee of any Department of En-
ergy contractor; or
(B) an individual defined as an employee
in section 8101(1) of title 5, United States
Code, who may have been exposed to radiation
at a Department of Energy facility or at a facil-
ity owned, operated, or occupied by a Depart-
ment of Energy contractor.
(6) COMPENSATION.—The term ‘‘compensa-
tion’’ means the money allowance payable under this
title and any other benefits paid for from the Nu-
clear Employees’ Radiation Compensation Fund, in-
cluding the compensation payable pursuant to sec-
tion 208.
(7) COVERED ILLNESS.—The term ‘‘covered ill-
ness’’ means—
(A) the following medical conditions or dis-
eases, if the onset of the condition or disease
was at least 2 years after first exposure:
(i) leukemia (other than chronic
lymphocytic leukemia), multiple myeloma,
or lymphoma;
(ii) primary cancer of the bone, thy-
roid, male or female breast, esophagus,
stomach, pharynx, small intestine, pan-
creas, bile ducts, gall bladder, salivary
gland, urinary bladder, brain, colon, ovary,
liver (except if cirrhosis or hepatitis B is
indicated), larynx, prostate, kidney, or lung
(other than in situ lung cancer that is dis-
covered during or after a post-mortem
exam);
(iii) for employees exposed to uranium
or uranium compounds, chronic renal dis-
ease (including nephritis and kidney tubal
necrosis);
(B) other medical conditions or illness as-
sociated with exposure to radiation or other
hazardous substances as determined by the Sec-
retary of Health and Human Services pursuant
to title III;
(C) any other medical condition or illness
whereby the claimant can establish, pursuant to
title III, that radiation or a hazardous sub-
stance significantly contributed to their illness,
disease or condition; or
(D) any injury or illness sustained as a
consequence of a covered illness as defined in
subparagraph (A), (B), or (C).
(8) HAZARDOUS SUBSTANCES.—The term ‘‘haz-
ardous substances’’ is used interchangeably with
hazardous materials and includes heavy metals,
chemicals, and other toxic substances to which cov-
ered employees are exposed at Department of En-
ergy facilities in Los Alamos.
(9) MONTHLY PAY.—The term ‘‘monthly pay’’
means—
(A) for covered employees employed at the
time of injury or inception of disability, the
monthly pay at the time of injury, or the
monthly pay at the inception of disability, or
the monthly pay at the time compensable dis-
ability recurs, if the recurrence begins more
than 6 months after the covered employee re-
sumes regular full-time employment, whichever
is greater, except when otherwise determined
under section 8113(a) of title 5, United States
Code; or
(B) for covered employees who are unem-
ployed at the inception of disability, the month-
ly pay of the employee’s last covered employ-
ment calculated as if the employee were still
employed, or the monthly pay of other employ-
ees of the same or most similar class working
in the same or most similar employment in the
same or neighboring locality, whichever is great-
er.
(10) TIME OF INJURY.—The term ‘‘time of in-
jury’’ means the last date on which a covered em-
ployee was exposed to radiation or other hazardous
substance in the performance of duty as specified in
section 203.
(11) INCEPTION
OF
DISABILITY.—The term
‘‘inception of disability’’ means the date on which
the covered employee or claimant becomes aware, or
in the exercise of reasonable diligence or by reason
of medical advice should have been aware, of the re-
lationship between the employment, the covered ill-
ness, and the death or disability.
(12) MISCELLANEOUS
TERMS.—The following
terms have the meaning given those terms in section
8101 of title 5, United States Code:
(A) ‘‘physician’’;
(B) ‘‘medical, surgical, and hospital serv-
ices and supplies’’;
(C) ‘‘widow’’;
(D) ‘‘parent’’;
(E) ‘‘brother’’ and ‘‘sister’’;
(F) ‘‘child’’;
(G) ‘‘grandchild’’;
(H) ‘‘widower’’;
(I) ‘‘student’’;
(J) ‘‘price index’’;
(K) ‘‘organ’’; and
(L) ‘‘United States medical officers and
hospitals’’.
SEC. 202. ADMINISTRATION.
(a) IN GENERAL.—Within 120 days of enactment of
this title, the Secretary of Energy shall enter into an
agreement with the Secretary of Labor for the administra-
tion of this title, including utilization of Department of
Labor services and facilities, and for the compensation by
the Department of Energy for such administration from
the Nuclear Employees Radiation Compensation Fund es-
tablished pursuant to section 221. The Secretary of Labor
is authorized to enter into a reimbursable agreement with
the Secretary of Energy for the administration of this
title. Upon entry into such agreement, the Secretary of
Labor may delegate to any officer or employee of the De-
partment of Labor all powers and duties necessary for car-
rying out the purposes of this title.
(b) AUTHORITY.—To assist and facilitate administra-
tion of this title and the adjudication of claims, the Sec-
retary of Energy shall—
(1) provide assistance to employees and claim-
ants in connection with this title, including assist-
ance in securing medical testing and diagnostic serv-
ices necessary to determine the existence of a cov-
ered illness as defined in section 201(7);
(2) ensure the ready availability, in paper and
electronic format, of forms necessary for making
claims, and provide employees and claimants with
necessary information under this title including,
medical protocols necessary for medical testing and
diagnosis to determine the existence of a covered ill-
ness, lists of approved vendors for use in obtaining
necessary laboratory services related to such medical
testing and diagnosis, and vouchers to cover costs
outlined in the medical protocols;
(3) provide such further assistance to employees
and claimants as necessary for the development of
the facts pertinent to the claimant’s claim or poten-
tial claim; and
(4) upon a notification that a claimant has
made a claim for benefits under this title, provide
such information to the authority with delegated re-
sponsibility for the determination and award of
claims under section 212, or review thereof under
sections 213 and 214, as the authority may request
for purposes of determining eligibility for or amount
of benefits, or verifying other information with re-
spect thereto.
In carrying out paragraph (1), the examination of workers
who believe they have ailments related to the environ-
mental conditions at their places of work in Los Alamos
shall be conducted free of charge at the Veterans’ Admin-
istration hospital nearest to their place of residence and
such workers shall receive free treatment for ailments and
illnesses identified by such physicians as potentially work-
related. Such workers shall also receive reimbursement for
travel and lodging expenses.
(c) INFORMATION.—The Secretary of Energy may re-
quire a Department of Energy contractor to provide infor-
mation concerning a claim filed under this title to the offi-
cers or employees with delegated responsibility for admin-
istering this title.
(d) PENALTY.—Failure or refusal to provide informa-
tion, or knowingly providing false information, in response
to a request pursuant to subsections (b) and (c) this sec-
tion may result in fine or imprisonment, or both, pursuant
to section 1922 of title 18, United States Code, as amend-
ed by section 228(c).
(e) PENALTY.—Whoever induces, compels, or directs
an injured employee to forego filing of any claim for com-
pensation or other benefits provided under this title or any
extension or application thereof, or willfully retains any
notice, report, claim, or paper which is required to be filed
under this title or any extension or application thereof,
or regulations prescribed thereunder, may be subjected to
fine or imprisonment, or both, pursuant to section 1922
of title 18, United States Code, as amended by section
228(c).
SEC. 203. OCCUPATIONAL EXPOSURE TO RADIATION AND
OTHER HAZARDOUS SUBSTANCES.
(a) IN GENERAL.—In the absence of substantial evi-
dence to the contrary, a covered employee, as defined in
subparagraph (A) or (B) of section 201(5), shall be deter-
mined to have been exposed to radiation in the perform-
ance of duty for the purposes of this title if the individual
was employed at a Department of Energy facility, or was
present at the facility because of employment by the
United States or a contractor or subcontractor of the De-
partment of Energy, for a period of at least one year
and—
(1) the individual was monitored through the
use of dosimetry badges for exposure to radiation or
should have been monitored for radiation exposure
based on requirements or standards in existence as
of the date of enactment of this title; or
(2) worked in a job that, as determined by reg-
ulation, resulted in exposure to radiation.
(b) CONSTRUCTION.—In the absence of substantial
evidence to the contrary, a covered employee, as defined
in section 201(5) (A) or (B), shall be determined to have
been exposed to a hazardous substance or hazardous mate-
rial in the performance of duty for the purposes of this
title if—
(1) the individual was employed at a Depart-
ment of Energy facility, or was present at the facil-
ity because of employment by the United States or
a contractor or subcontractor of the Department of
Energy, for a period of at least one year; and
(2)(A) the individual was monitored for expo-
sure to hazardous substances or hazardous materials
or should have been monitored for such exposure, or
(B) provides a work history that, if verified,
demonstrated exposure to hazardous substances or
hazardous materials.
SEC. 204. COMPENSATION FOR DISABILITY OR DEATH,
MEDICAL SERVICES, AND VOCATIONAL REHA-
BILITATION.
(a) IN GENERAL.—In accordance with this title and
except as otherwise provided in this Act, the United States
is authorized to—
(1) upon application for compensation pursuant
to section 210, furnish the costs of all medical test-
ing and diagnostic services necessary for the claim-
ant to determine the existence of a covered illness as
defined in section 201(7) and reimburse claimant for
any additional reasonable medical expenses incurred
in establishing the claimant’s claim;
(2) pay the compensation specified in sections
8105–8110, 8111(a), 8112–13, 8115, 8117, 8133–
8135, and 8146a (a) and (b) of title 5, United
States Code, for the disability or death from a cov-
ered illness of a covered employee who was occupa-
tionally exposed while in the performance of duty as
determined in accordance with section 203;
(3) furnish the services and other benefits,
specified in section 8103 of title 5, United States
Code, to a covered employee who sustains a covered
illness as a result of occupational exposure while in
the performance of duty as determined in accord-
ance with section 203;
(4) pay alternative compensation pursuant to
section 208 and attorneys fees as specified in section
217; and
(5) advise a permanently disabled individual
whose disability is compensable under this title of
the availability of vocational rehabilitation and pro-
vide for furnishing vocational rehabilitation service
pursuant to the provisions of section 8104 and
8111(b) of title 5, United States Code;
unless the covered illness or death was caused by one of
the circumstances set forth in paragraph (1), (2), or (3)
of subsection (a) of section 8102 of title 5, United States
Code.
(b) FUND.—All compensation and awards under this
title shall be paid from the Nuclear Employees’ Radiation
Compensation Fund.
(c) COMPENSATION BEFORE EFFECTIVE DATE.—No
payment of compensation may be made under this title
for any period prior to the effective date of this title, ex-
cept for the alternative compensation specified in section
208.
SEC. 205. COMPUTATION OF PAY.
(a) IN GENERAL.—Except as otherwise provided by
this title, computation of pay under this title shall be de-
termined in accordance with section 8114 of title 5,
United States Code.
(b) AVERAGE ANNUAL EARNINGS.—If either of the
methods of determining the average annual earnings spec-
ified in sections 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 rep-
resents the annual earning capacity of the covered em-
ployee in the employment in which the employee was work-
ing at the time of injury or inception of disability, which-
ever is greater, having regard to the previous earnings of
the employee in similar employment, and for other employ-
110
321 or to qualify as an exceptional medical claim under
section 320(b).
SEC. 325. MEDICAL TESTING REIMBURSEMENT.
(a) LEVEL A.—A claimant with at least 4 equivalent-
years of heavy exposure to asbestos, whose chest x-ray
shows either small irregular opacities of ILO Grade 1/0
or bilateral pleural thickening of ILO Grade B/2, shall be
eligible for reimbursement of 100 percent of out-of-pocket
expenses for any medical testing required under section
302, up to a ceiling of $1,500. Level A claimants shall
be eligible at 3 year intervals for similar reimbursement
of future medical testing expenses for up to 2 additional
occasions. Level A reimbursements shall be treated as ad-
ministrative expenses of the OAC and paid for by defend-
ants under section 401.
(b) LEVEL B.—The Administrator shall, subject to
the availability of appropriated funds, reimburse up to 100
percent of the out-of-pocket expenses for any medical test-
ing required under section 102, up to a ceiling established
by rule, with the approval of the Trustee, for any claimant
with at least one equivalent-year of heavy exposure to as-
bestos who meets the medical but not the exposure re-
quirements of Level A. Level B claimants may be eligible
for similar reimbursement of future medical testing ex-
penses for up to 2 additional occasions at least 3 years