TITLE 42—THE PUBLIC HEALTH AND WELFARE
CHAPTER 84—DEPARTMENT OF ENERGY
SUBCHAPTER XVI—ENERGY EMPLOYEES OCCUPATIONAL ILLNESS
COMPENSATION PROGRAM
PART A—ESTABLISHMENT OF COMPENSATION PROGRAM AND COMPENSATION FUND
§
7384. Findings; sense of Congress
(a) FINDINGS—The
Congress finds the following:
(1) Since World War II, Federal nuclear
activities have been explicitly recognized under Federal law as activities that
are ultra-hazardous. Nuclear weapons production and testing have involved
unique dangers, including potential catastrophic nuclear accidents that private
insurance carriers have not covered and recurring exposures to radioactive
substances and beryllium that, even in small amounts, can cause medical harm.
(2) Since the inception of the nuclear weapons
program and for several decades afterwards, a large number of nuclear weapons
workers at sites of the Department of Energy and at sites of 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, liability, and employee demands for hazardous duty pay.
(3) Many previously secret records have
documented unmonitored exposures to radiation and beryllium and continuing
problems at these sites across the Nation, at which the Department of Energy
and its predecessor agencies have been, since World War II, self-regulating
with respect to nuclear safety and occupational safety and health. No other hazardous Federal activity has been
permitted to be carried out under such sweeping powers of self-regulation.
(4) The policy of the Department of Energy has
been to litigate occupational illness claims, which has deterred workers from
filing workers’ compensation claims and has imposed major financial burdens for
such employees who have sought compensation.
Contractors of the Department have been held harmless and the employees have been denied workers’
compensation coverage for occupational disease.
(5) Over the past 20 years, more than two dozen
scientific findings have emerged that indicate that certain of such employees
are experiencing increased risks of dying from cancer and non-malignant
diseases. Several of these studies have
also established a correlation between excess diseases and exposure to
radiation and beryllium.
(6) While linking exposure to occupational
hazards with the development of occupational disease is sometimes difficult,
scientific evidence supports the conclusion that occupational exposure to dust
particles or vapor of beryllium can cause beryllium sensitivity and chronic
beryllium disease. Furthermore, studies
indicate than 98 percent of radiation-induced cancers within the nuclear
weapons complex have occurred at dose levels below existing maximum safe
thresholds.
(7) Existing information indicates that State
workers’ compensation programs do not provide a uniform means of ensuring
adequate compensation for the types of occupational illnesses and diseases that
relate to the employees at those sites.
(8) To ensure fairness and equity, the civilian
men and women who, over the past 50 years, have performed duties uniquely
related to the nuclear weapons production and testing programs of the
Department of Energy and its predecessor agencies should have efficient, uniform,
and adequate compensation for beryllium-related health conditions and
radiation-related health conditions.
(9) On
(10) However, as of
(b) SENSE OF CONGRESS—It is the sense of Congress
that—
(1) a program should be
established to provide compensation to covered employees;
(2) a fund for payment of
such compensation should be established on the books of the Treasury;
(3) payments from that
fund should be made only after—
(A) the identification
of employees of the Department of Energy (including its predecessor agencies),
and of contractors of the Department, who may be members of the group of
covered employees;
(B) the establishment of
a process to receive and administer claims for compensation for disability or
death of covered employees;
(C) the submittal by the
President of a legislative proposal for compensation of such employees that
includes the estimated annual budget resources for that compensation; and
(D) consideration by the
Congress of the legislative proposal submitted by the President; and
(4) payments from that
fund should commence not later than fiscal year 2002.
Pub. L. 106-398, Title XXXVI, §
3602
Pub. L. 106-398, Title XXXVI, §
3601 provided that: “This title may be
cited as the ‘Energy Employees Occupational Illness Compensation Program Act of
2000’.”
§ 7384d. Establishment of Energy Employees
Occupational Illness Compensation Program
(a)
PROGRAM ESTABLISHED—There is hereby established a program to be known as
the “Energy Employees Occupational Illness Compensation Program” (in this
subchapter referred to as the “compensation program”). The President shall carry out the
compensation program through one or more Federal agencies or officials, as
designated by the President.
(b)
PURPOSE OF PROGRAM—The purpose of the compensation program is to provide
for timely, uniform, and adequate compensation of covered employees and, where
applicable, survivors of such employees, suffering from illnesses incurred by
such employees in the performance of duty for the Department of Energy and
certain of its contractors and subcontractors.
(c)
ELIGIBILITY FOR COMPENSATION—The eligibility of covered employees for
compensation under the compensation program shall be determined in accordance
with the provisions of part B of this subchapter as may be modified by a law
enacted after the date of the submittal of the proposal for legislation
required by section 7384f of this title.
Pub. L. 106-398, Title XXXVI, § 3611
§ 7384e.
Establishment of Energy Employees Occupational Illness Compensation Fund
(a) ESTABLISHMENT—There is hereby established on
the books of the Treasury a fund to be known as the “Energy Employees
Occupational Illness Compensation Fund” (in this subchapter referred to as the
“compensation fund”).
(b) AMOUNTS IN COMPENSATION FUND—The compensation fund shall consist of the following
amounts:
(1) Amounts appropriated to the
compensation fund pursuant to the authorization of appropriations in section 7384g(b) of this title.
(2) Amounts transferred to the
compensation fund under subsection (c).
(c) FINANCING OF COMPENSATION FUND—Upon the
exhaustion of amounts in the compensation fund attributable to the
authorization of appropriations in section 7384g(b) of
this title, the Secretary of the Treasury shall transfer directly to the
compensation fund from the General Fund of the Treasury, without further
appropriation, such amounts as are further necessary to carry out the
compensation program.
(d) USE OF COMPENSATION FUND—Subject to
subsection (e), amounts in the compensation fund shall be used to carry out the
compensation program.
(e) ADMINISTRATIVE COSTS NOT PAID FROM
COMPENSATION FUND—No cost incurred in carrying out the compensation program, or
in administering the compensation fund, shall be paid from the compensation
fund or set off against or otherwise deducted from any payment to any
individual under the compensation program.
(f) INVESTMENT OF AMOUNTS IN COMPENSATION
FUND—Amounts in the compensation fund shall be invested in accordance with
section 9702 of title 31, United States Code, and any interest on, and proceeds
from, any such investment shall be credited to and become a part of the
compensation fund.
Pub. L.
106-398, Title XXXVI, § 3612
§ 7384f.
Legislative proposal
(a) LEGISLATIVE PROPOSAL REQUIRED—Not later than
(1) The types of compensation and
benefits, including lost wages, medical benefits, and any lump-sum settlement
payments, to be provided under the compensation program.
(2) Any adjustments or
modifications necessary to appropriately administer the compensation program
under part B of this subchapter.
(3) Whether to expand the
compensation program to include other illnesses associated with exposure to
toxic substances.
(4) Whether to expand the class of
individuals who are members of the Special Exposure Cohort (as defined in
section 7384l(14)) of this title.
(b) ASSESSMENT OF POTENTIAL COVERED EMPLOYEES AND
REQUIRED AMOUNTS—The President shall include with the proposal for legislation
under subsection (a) the following:
(1) An estimate of the number of
covered employees that the President determines were
exposed in the performance of duty.
(2) An estimate, for each fiscal
year of the compensation program, of the amounts to be required for
compensation and benefits anticipated to be provided in such fiscal year under
the compensation program.
Pub. L.
106-398, Title XXXVI, § 3613
§ 7384g. Authorization of
appropriations
(a) IN
GENERAL—Pursuant to the authorization of appropriations in section 3103(a)*, $25,000,000
may be used for purposes of carrying out this subchapter.
(b) COMPENSATION
FUND—There is hereby authorized to be appropriated $250,000,000 to the Energy
Employees Occupational Illness Compensation Fund established by section 7384e
of this title.
Pub. L.
106-398, Title XXXVI, § 3614
*Pub.
L. 106-398, Title XXXI, § 3103(a).
PART B—PROGRAM ADMINISTRATION
§ 7384l. Definitions for program
administration
In this
subchapter:
(1) The term “covered employee” means any of the
following:
(A) A covered beryllium employee.
(B) A covered employee with
cancer.
(C) To the extent provided in
section 7384r of this title, a covered employee with chronic silicosis (as
defined in that section).
(2) The term “atomic weapon” has the meaning given
that term in section 11 d.* of the Atomic Energy
Act of 1954 (42 U.S.C. 2014(d)).
(3) The term “atomic weapons employee” means any
of the following:
(A) An individual employed by an atomic weapons
employer during a period when the employer was processing or producing, for the
use by the United States, material that emitted radiation and was used in the
production of an atomic weapon, excluding uranium mining and milling.
(B)
An individual employed—
(i) at a facility with respect to which the National
Institute for Occupational Safety and Health,
in its report dated October 2003 and titled “Report on
Residual Radioactive and Beryllium
Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities”, or any update to that report,
found that there is a potential for significant residual contamination outside of the period in which
weapons-related production occurred;
(ii) by an atomic weapons employer or subsequent
owner or operators of a facility described
in clause (i); and
(iii) during a period, as specified in such report
or any update to such report, of potential for
significant residual radioactive contamination at such facility.
(4) The term “atomic weapons employer” means an
entity, other than the
(A) processed or produced, for use
by the United States, material that emitted radiation and was used in the
production of an atomic weapon, excluding uranium mining and milling; and
(B) is
designated by the Secretary of Energy as an atomic weapons employer for
purposes of the compensation program.
(5) The term “atomic weapons employer facility”
means a facility, owned by an atomic weapons employer, that is or was used to
process or produce, for use by the
(6) The term “beryllium vendor” means any of the
following:
(A) Atomics International.
(B) Brush Wellman, Incorporated,
and its predecessor, Brush Beryllium Company.
(C) General Atomics.
(D) General Electric Company.
(E) NGK Metals Corporation and its
predecessors, Kawecki-Berylco, Cabot Corporation, BerylCo, and Beryllium
Corporation of
(F) Nuclear Materials and
Equipment Corporation.
(G) StarMet Corporation and its
predecessor, Nuclear Metals, Incorporated.
(H) Wyman Gordan,
Incorporated.
(I) Any other vendor, processor,
or producer of beryllium or related products designated as a beryllium vendor
for purposes of the compensation program under section 7384m of this title.
(7) The term “covered beryllium employee” means
the following, if and only if the employee is determined to have been exposed
to beryllium in the performance of duty in accordance with section 7384n(a) of
this title:
(A) A current or former employee
(as that term is defined in section 8101(1) of Title 5) who may have been
exposed to beryllium at a Department of Energy facility or at a facility owned,
operated, or occupied by a beryllium vendor.
(B) A current or former employee
of—
(i) any
entity that contracted with the Department of Energy to provide management and
operation, management and integration, or environmental remediation of a
Department of Energy facility; or
(ii) any
contractor or subcontractor that provided services, including construction and
maintenance, at such a facility.
(C) A current or former employee
of a beryllium vendor, or of a contractor or subcontractor of a beryllium
vendor, during a period when the vendor was engaged in activities related to
the production or processing of beryllium for sale to, or use by, the
Department of Energy.
(8) The term “covered beryllium illness” means
any of the following:
(A) Beryllium sensitivity as established
by an abnormal beryllium lymphocyte proliferation test performed on either
blood or lung lavage cells.
(B) Established chronic beryllium
disease.
(C) Any injury, illness,
impairment, or disability sustained as a consequence of a covered beryllium
illness referred to in subparagraph (A) or (B).
(9) The term “covered employee with cancer” means
any of the following:
(A) An individual with a specified
cancer who is a member of the Special Exposure Cohort, if and only if that
individual contracted that specified cancer after beginning employment at a
Department of Energy facility (in the case of a Department of Energy employee
or Department of Energy contractor employee) or at an atomic weapons employer
facility (in the case of an atomic weapons employee).
(B)(i) An individual with cancer
specified in subclause (I), (II), or (III) of clause (ii), if and only if that
individual is determined to have sustained that cancer in the performance of
duty in accordance with section 7384n(b) of this title.
(ii) Clause (i) applies to any of
the following:
(I) A Department
of Energy employee who contracted that cancer after beginning employment at a
Department of Energy facility.
(II) A Department of Energy
contractor employee who contracted that cancer after beginning employment at a
Department of Energy facility.
(III) An atomic weapons employee
who contracted that cancer after beginning employment at an atomic weapons
employer facility.
(10) The term “Department of Energy” includes the
predecessor agencies of the Department of Energy, including the Manhattan
Engineering District.
(11) The term “Department of Energy contractor
employee” means any of the following:
(A) An individual who is or was in
residence at a Department of Energy facility as a researcher for one or more
periods aggregating at least 24 months.
(B) An individual who is or was
employed at a Department of Energy facility by—
(i) an
entity that contracted with the Department of Energy to provide management and
operating, management and integration, or environmental remediation at the
facility; or
(ii) a
contractor or subcontractor that provided services, including construction and
maintenance, at the facility.
(12) The term “Department of Energy facility”
means any building, structure, or premise, including the grounds upon which
such building, structure, or premise is located—
(A) in which operations are, or
have been, conducted by, or on behalf of, the Department of Energy (except for
buildings, structures, premises, grounds, or operations covered by Executive
Order No. 12344, dated February 1, 1982 (42 U.S.C. 7158 note), pertaining to
the Naval Nuclear Propulsion Program); and
(B) with
regard to which the Department of Energy has or had—
(i) a
proprietary interest; or
(ii) entered
into a contract with an entity to provide management and operation, management
and integration, environmental remediation services, construction, or
maintenance services.
(13) The term “established chronic
beryllium disease” means chronic beryllium disease as established by the
following:
(A) For diagnoses on or after
(i) a
lung biopsy showing granulomas or a lymphocytic process consistent with chronic
beryllium disease;
(ii) a
computerized axial tomography scan showing changes consistent with chronic
beryllium disease; or
(iii) pulmonary
function or exercise testing showing pulmonary deficits consistent with chronic
beryllium disease.
(B) For diagnoses before
(i) occupational
or environmental history, or epidemiologic evidence of beryllium exposure; and
(iii) any
three of the following criteria:
(I) Characteristic chest
radiographic (or computed tomography (CT)) abnormalities.
(II) Restrictive or obstructive
lung physiology testing or diffusing lung capacity defect.
(III) Lung pathology consistent
with chronic beryllium disease.
(IV)
Clinical course consistent with a chronic respiratory disorder.
(V) Immunologic tests showing
beryllium sensitivity (skin patch test or beryllium blood test preferred).
(14) The term “member of the Special Exposure
Cohort” means a Department of Energy employee, Department of Energy contractor
employee, or atomic weapons employee who meets any of the following
requirements:
(A) The employee was so employed
for a number of work days aggregating at least 250 work days before
(i) was
monitored through the use of dosimetry badges for exposure at the plant of the
external parts of employee’s body to radiation; or
(ii) worked
in a job that had exposures comparable to a job that is or was monitored
through the use of dosimetry badges.
(B) The employee was so employed
before
(C)(i) Subject to clause (ii), the
employee is an individual designated as a member of the Special Exposure Cohort
by the President for purposes of the compensation
program under section 7384q of this title.
(ii) A designation under clause
(i) shall, unless Congress otherwise provides, take effect on the date that is
30 days after the date on which the President submits to Congress a report
identifying the individuals covered by the designation and describing the
criteria used in designating those individuals.
(15) The term “occupational illness” means a
covered beryllium illness, cancer referred to in section 7384l(9)(B) of this
title, specified cancer, or chronic silicosis, as the case may be.
(16) The term “radiation” means ionizing radiation
in the form of—
(A) alpha
particles;
(B) beta
particles;
(C) neutrons;
(D) gamma
rays; or
(E) accelerated ions or subatomic
particles from accelerator machines.
(17) The term “specified cancer” means any of the
following:
(A) A specified disease, as that
term is defined in section 4(b)(2) of the Radiation
Exposure Compensation Act (42 U.S.C. 2210 note).
(B) Bone cancer.
(C) Renal cancers.
(D) Leukemia
(other than chronic lymphocytic leukemia), if initial occupational exposure
occurred before 21 years of age and onset occurred more than two years after
initial occupational exposure.
Pub. L.
106-398, Title XXXVI, § 3621; Pub. L. 107-20, § 2403(a); Pub. L. 107-107, §§
3151(a)(1) and 3151(a)(4)(C); Pub. L. 108-375, §§
3166(b)(2) and 3168(a)
*So in original.
Probably should be “section 11(d)”.
§ 7384m. Expansion of list of
beryllium vendors
Not later than
December 31, 2002, the President may, in consultation with the Secretary of
Energy, designate as a beryllium vendor for purposes of section 7384l(6) of
this title any vendor, processor, or producer of beryllium or related products
not previously listed under or designated for purposes of such section 7384l(6)
of this title if the President finds that such vendor, processor, or producer
has been engaged in activities related to the production or processing of
beryllium for sale to, or use by, the Department of Energy in a manner similar
to the entities listed in such section 7384l(6) of this title.
Pub. L.
106-398, Title XXXVI, § 3622
§ 7384n. Exposure in the performance of
duty
(a) BERYLLIUM—A covered
beryllium employee shall, in the absence of substantial evidence to the
contrary, be determined to have been exposed to beryllium in the performance of
duty for the purposes of the compensation program if, and only if, the covered
beryllium employee was—
(1) employed
at a Department of Energy facility; or
(2) present
at a Department of Energy facility, or a facility owned and operated by a
beryllium vendor, because of employment by the
during a period when beryllium dust,
particles, or vapor may have been present at such facility.
(b) CANCER—An individual with cancer specified in
subclause (I), (II), or (III) of section 7384l(9)(B)(ii) of this title shall be
determined to have sustained that cancer in the performance of duty for
purposes of the compensation program if, and only if, the cancer specified in
that subclause was at least as likely as not related to employment at the
facility specified in that subclause, as determined in accordance with the
guidelines established under subsection (c).
(c) GUIDELINES—(1) For purposes of the compensation
program, the President shall by regulation establish guidelines for making the
determinations required by subsection (b).
(2) The President shall establish such guidelines
after technical review by the Advisory Board on Radiation and Worker Health
under section 7384o of this title.
(3) Such guidelines shall—
(A) be based on the radiation dose
received by the employee (or a group of employees performing similar work) at such
facility and the upper 99 percent confidence interval of the probability of
causation in the radioepidemiological tables published under section 7(b) of
the Orphan Drug Act (42 U.S.C. 241 note), as such tables may be updated under
section 7(b)(3) of such Act from time to time;
(B) incorporate
the methods established under subsection (d); and
(C) take
into consideration the type of cancer, past health-related activities (such as
smoking), information on the risk of developing a radiation-related cancer from
workplace exposure, and other relevant factors.
(4) In the case of an atomic weapons employee
described in section 7384l(3)(B), the following doses of radiation shall be
treated, for purposes of paragraph (3)(A) of this subsection, as part of the radiation
dose received by the employee at such facility:
(A) Any dose of ionizing radiation received by
that employee from facilities, materials, devices, or byproducts used or
generated in the research, development, production, dismantlement, transportation,
or testing of nuclear weapons, or from any activities to research, produce,
process, store, remediate, or dispose of radioactive materials by or on behalf
of the Department of Energy (except for activities covered by Executive Order
No. 12344, dated February 1, 1982 (42 U.S.C. 7158 note) pertaining to the Naval
Nuclear Propulsion Program).
(B)
Any dose of ionizing radiation received by that employee from a source
not covered by subparagraph (A) that is not distinguishable through reliable
documentation from a dose covered by subparagraph (A).
(d) METHODS FOR RADIATION DOSE
RECONSTRUCTIONS—(1) The President shall,
through any Federal agency (other than the Department of Energy) or official
(other than the Secretary of Energy or any other official within the Department
of Energy) that the President may designate, establish by regulation methods
for arriving at reasonable estimates of the radiation doses received by an
individual specified in subparagraph (B) of section 7384l(9) of this title at a
facility specified in that subparagraph by each of the following employees:
(A) An employee who was not
monitored for exposure to radiation at such facility.
(B) An employee who was monitored
inadequately for exposure to radiation at such facility.
(C) An employee whose records of
exposure to radiation at such facility are missing or incomplete.
(2) The President shall establish an independent
review process using the Advisory Board on Radiation and Worker Health to—
(A) assess
the methods established under paragraph (1); and
(B) verify
a reasonable sample of the doses established under paragraph (1).
(e) INFORMATION ON RADIATION DOSES—(1) The Secretary of
Energy shall provide, to each covered employee with cancer specified in section
7384l(9)(B) of this title, information specifying the estimated radiation dose
of that employee during each employment specified in section 7384l(9)(B) of
this title, whether established by a dosimetry reading, by a method established
under subsection (d), or by both a dosimetry reading and such method.
(2) The Secretary of Health and Human Services
and the Secretary of Energy shall each make available to researchers and the
general public information on the assumptions, methodology, and data used in
establishing radiation doses under subsection (d). The actions taken under this paragraph shall
be consistent with the protection of private medical records.
Pub. L.
106-398, Title XXXVI, § 3623; Pub. L. 108-375, § 3168(b)
§ 7384o.
Advisory board on radiation and worker health
(a) ESTABLISHMENT—(1) Not later than 120 days after
(2) The President shall make appointments to the
Board in consultation with organizations with expertise on worker health issues
in order to ensure that the membership of the Board reflects a balance of
scientific, medical, and worker perspectives.
(3) The President shall designate a Chair for the
Board from among its members.
(b) DUTIES—The Board
shall advise the President on—
(1) the
development of guidelines under section 7384n(c) of this title;
(2) the
scientific validity and quality of dose estimation and reconstruction efforts
being performed for purposes of the compensation program; and
(3) such
other matters related to radiation and worker health in Department of Energy
facilities as the President considers appropriate.
(c) STAFF—(1) The President shall appoint a staff to
facilitate the work of the Board. The
staff shall be headed by a Director who shall be appointed under subchapter
VIII of chapter 33 of Title 5.
(2) The President may accept as staff of the
Board personnel on detail from other Federal agencies. The detail of personnel under this paragraph
may be on a nonreimbursable basis.
(d) EXPENSES—Members of the Board, other than
full-time employees of the United States, while attending meetings of the Board
or while otherwise serving at the request of the President, while serving away
from their homes or regular places of business, shall be allowed travel and
meal expenses, including per diem in lieu of subsistence, as authorized by
section 5703 of Title 5, for individuals in the Government serving without pay.
(e) SECURITY CLEARANCES—(1) The Secretary of Energy shall ensure that the
members and staff of the Board, and the contractors performing work in support of the Board, are afforded the opportunity to apply for a
security clearance for any matter for which such a clearance is
appropriate. The Secretary should, not
later than 180 days after receiving a completed application, make a
determination whether or not the individual concerned is eligible for the
clearance.
(2) For fiscal year 2007 and each fiscal year
thereafter, the Secretary of Energy shall include in the budget justification
materials submitted to Congress in support of the Department of Energy budget
for that fiscal year (as submitted with the budget of the President under
section 1105(a) of title 31, United States Code) a report specifying the number
of applications for security clearances under this subsection, the number of
such applications granted, and the number of such applications denied.
(f)
INFORMATION—The Secretary of Energy shall, in accordance with law,
provide to the Board and the contractors of the Board access to any information
that the Board considers relevant to carry out its responsibilities under this
title, including information such as Restricted Data (as defined in section 11
y* of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y))) and information
covered by the Privacy Act.
Pub. L.
106-398, Title XXXVI, § 3624; Pub. L. 108-375, § 3166(a)
*So in
original. Probably should be “section
11(y)”.
§ 7384p.
Responsibilities of Secretary of Health and Human Services
The Secretary of
Health and Human Services shall carry out that Secretary’s responsibilities
with respect to the compensation program with the assistance of the Director of
the National Institute for Occupational Safety and Health.
Pub. L.
106-398, Title XXXVI, § 3625
§ 7384q.
Designation of additional members of Special Exposure Cohort
(a) ADVICE ON ADDITIONAL MEMBERS—(1) The Advisory Board
on Radiation and Worker Health under section 7384o of this title shall advise
the President whether there is a class of employees at any Department of Energy
facility who likely were exposed to radiation at that facility but for whom it
is not feasible to estimate with sufficient accuracy the radiation dose they
received.
(2) The advice of the Advisory Board on Radiation
and Worker Health under paragraph (1) shall be based on exposure assessments by
radiation health professionals, information provided by the Department of
Energy, and such other information as the Advisory Board considers appropriate.
(3) The President shall request advice under
paragraph (1) after consideration of petitions by classes of employees
described in that paragraph for such advice.
The President shall consider such petitions pursuant to procedures
established by the President.
(b) DESIGNATION OF ADDITIONAL MEMBERS—Subject to
the provisions of section 7384l(14)(C) of this title,
the members of a class of employees at a Department of Energy facility, or at an atomic weapons
employer facility, may be
treated as members of the Special Exposure Cohort for purposes of the
compensation program if the President, upon recommendation of the Advisory
Board on Radiation and Worker Health, determines that—
(1) it is
not feasible to estimate with sufficient accuracy the radiation dose that the
class received; and
(2) there
is a reasonable likelihood that such radiation dose may have endangered the
health of members of the class.
(c)
DEADLINES—(1) Not later than 180 days after the date on which the
President receives a petition for designation as members of the Special
Exposure Cohort, the Director of the National Institute for Occupational Safety
and Health shall submit to the Advisory Board on Radiation and Worker Health a
recommendation on that petition, including all supporting documentation.
(2)(A) Upon receipt by the President of a
recommendation of the Advisory Board on Radiation and Worker Health that the
President should determine in the affirmative that paragraphs (1) and (2) of
subsection (b) apply to a class, the President shall have a period of 30 days
in which to determine whether such paragraphs apply to the class and to submit
that determination (whether affirmative or negative) to Congress.
(B) If the determination
submitted by the President under subparagraph (A) is in the affirmative, the
President shall also submit a report meeting the requirements of section 7384l(14)(C)(ii).
(C) If the President does not submit a determination
required by subparagraph (A) within the period required by subparagraph (A),
then upon the day following the expiration of that period, it shall be deemed
for purposes of section 7384l(14)(C)(ii) that the President submitted the
report under that provision on that day.
(d) ACCESS TO INFORMATION—The Secretary of Energy
shall provide, in accordance with law, the Secretary of Health and Human
Services and the members and staff of the Advisory Board on Radiation and
Worker Health access to relevant information on worker exposures, including
access to Restricted Data (as defined in section 11 y.* of the Atomic Energy
Act of 1954 (42 U.S.C. 2014(y)).
Pub. L.
106-398, Title XXXVI, § 3626; Pub. L. 107-107, § 3151(a)(2);
Pub. L. 108-375, § 3166(b)(1)
*So in
original. Probably should be “section
11(y)”.
§ 7384r.
Separate treatment of chronic silicosis
(a) SENSE OF CONGRESS—The Congress finds that
employees who worked in Department of Energy test sites and later contracted
chronic silicosis should also be considered for inclusion in the compensation
program. Recognizing that chronic
silicosis resulting from exposure to silica is not a condition unique to the
nuclear weapons industry, it is not the intent of Congress with this subchapter
to establish a precedent on the question of chronic silicosis as a compensable
occupational disease. Consequently, it
is the sense of Congress that a further determination by the President is
appropriate before these workers are included in the compensation program.
(b) CERTIFICATION BY PRESIDENT—A covered employee
with chronic silicosis shall be treated as a covered employee (as defined in
section 7384l(1)) of this title for the purposes of
the compensation program required by section 7384d of this title unless the
President submits to Congress not later than 180 days after October 30, 2000
the certification of the President that there is insufficient basis to include
such employees. The President shall
submit with the certification any recommendations about the compensation
program with respect to covered employees with chronic silicosis as the
President considers appropriate.
(c) EXPOSURE TO SILICA IN THE PERFORMANCE OF
DUTY—A covered employee shall, in the absence of substantial evidence to the
contrary, be determined to have been exposed to silica in the performance of
duty for the purposes of the compensation program if, and only if, the employee
was present for a number of work days aggregating at least 250 work days during
the mining of tunnels at a Department of Energy facility located in Nevada or
Alaska for tests or experiments related to an atomic weapon.
(d) COVERED EMPLOYEE WITH CHRONIC SILICOSIS—For purposes of this subchapter, the term “covered employee
with chronic silicosis” means a Department of Energy employee, or a Department
of Energy contractor employee, with chronic silicosis who was exposed to silica
in the performance of duty as determined under subsection (c).
(e) CHRONIC SILICOSIS—For
purposes of this subchapter, the term “chronic silicosis” means a non-
malignant lung disease if—
(1) the
initial occupational exposure to silica dust preceded the onset of silicosis by
at least 10 years; and
(2) a
written diagnosis of silicosis is made by a medical doctor and is accompanied
by—
(A) a chest radiograph,
interpreted by an individual certified by the National Institute for
Occupational Safety and Health as a B reader, classifying the existence of
pneumoconioses of category 1/0 or higher;
(B) results
from a computer assisted tomograph or other imaging technique that are
consistent with silicosis; or
(C) lung
biopsy findings consistent with silicosis.
Pub. L.
106-398, Title XXXVI, § 3627; Pub. L. 107-107, § 3151(a)(3)
§ 7384s.
Compensation and benefits to be provided
(a) COMPENSATION PROVIDED—(1) Except as provided in paragraph (2), a
covered employee, or the survivor of that covered employee if the employee is
deceased, shall receive compensation for the disability or death of that
employee from that employee’s occupational illness in the amount of $150,000.
(2) A covered employee shall, to the extent that
employee’s occupational illness is established beryllium sensitivity, receive
beryllium sensitivity monitoring under subsection (c) in lieu of compensation under
paragraph (1).
(b) MEDICAL BENEFITS—A
covered employee shall receive medical benefits under section 7384t of this
title for that employee’s occupational illness.
(c) BERYLLIUM SENSITIVITY MONITORING—An individual receiving beryllium sensitivity monitoring
under this subsection shall receive the following:
(1) A thorough medical examination
to confirm the nature and extent of the individual’s established beryllium
sensitivity.
(2) Regular medical examinations
thereafter to determine whether that individual has developed established
chronic beryllium disease.
(d) PAYMENT FROM COMPENSATION FUND—The compensation provided under this section, when
authorized or approved by the President, shall be paid from the compensation
fund established under section 7384e of this title.
(e) PAYMENTS IN THE CASE OF DECEASED
PERSONS—(1) In the case of a covered
employee who is deceased at the time of payment of compensation under this
section, whether or not the death is the result of the covered employee’s occupational
illness, such payment may be made only as follows:
(A) If the
covered employee is survived by a spouse who is living at the time of payment,
such payment shall be made to such surviving spouse.
(B) If there
is no surviving spouse described in subparagraph (A), such payment shall be
made in equal shares to all children of the covered employee who are living at
the time of payment.
(C) If there
is no surviving spouse described in subparagraph (A) and if there are no
children described in subparagraph (B), such payment shall be made in equal
shares to the parents of the covered employee who are living at the time of
payment.
(D) If there
is no surviving spouse described in subparagraph (A), and if there are no
children described in subparagraph (B) or parents described in subparagraph
(C), such payment shall be made in equal shares to all grandchildren of the
covered employee who are living at the time of payment.
(E) If there
is no surviving spouse described in subparagraph (A), and if there are no
children described in subparagraph (B), parents described in subparagraph (C),
or grandchildren described in subparagraph (D), then such payment shall be made
in equal shares to the grandparents of the covered employee who are living at
the time of payment.
(F)
Notwithstanding the other provisions of this paragraph, if there is—
(i) a surviving spouse described in subparagraph (A); and
(ii) at least one child of the covered employee who is living and
a minor at the time of payment and who is not a recognized natural child or
adopted child of such surviving spouse,
then half of such payment shall
be made to such surviving spouse, and the other half of such payment shall be
made in equal shares to each child of the covered employee who is living and a
minor at the time of payment.
(2) If a covered employee eligible for payment
dies before filing a claim under this title, a survivor of that employee who
may receive payment under paragraph (1) may file a claim for such payment.
(3) For purposes of this subsection—
(A) the “spouse” of an individual is a wife or husband of that
individual who was married to that individual for at least one year immediately
before the death of that individual;
(B) a “child” includes a recognized natural child, a stepchild
who lived with an individual in a regular parent-child relationship, and an
adopted child;
(C) a “parent” includes fathers and mothers through adoption;
(D) a “grandchild” of an individual is a child of a child of
that individual; and
(E) a “grandparent” of an individual is a parent of a parent of
that individual.
(f) EFFECTIVE DATE—This
section shall take effect on
Pub. L.
106-398, Title XXXVI, § 3628; Pub. L. 107-107, § 3151(a)(4)(A)
§ 7384t. Medical benefits
(a) MEDICAL BENEFITS PROVIDED—The United States
shall furnish, to an individual receiving medical benefits under this section
for an illness, the services, appliances, and supplies prescribed or
recommended by a qualified physician for that illness, which the President
considers likely to cure, give relief, or reduce the degree or the period of
that illness.
(b) PERSONS FURNISHING BENEFITS—(1) These services, appliances, and supplies
shall be furnished by or on the order of United States medical officers and
hospitals, or, at the individual’s option, by or on the order of physicians and
hospitals designated or approved by the President.
(2) The individual may initially select a physician
to provide medical services, appliances, and supplies under this section in
accordance with such regulations and instructions as the President considers
necessary.
(c) TRANSPORTATION AND EXPENSES—The individual
may be furnished necessary and reasonable transportation and expenses incident
to the securing of such services, appliances, and supplies.
(d) COMMENCEMENT OF BENEFITS—An
individual receiving benefits under this section shall be furnished those
benefits as of the date on which that individual submitted the claim for those
benefits in accordance with this subchapter.
(e) PAYMENT FROM COMPENSATION FUND—The benefits provided under this section, when authorized or
approved by the President, shall be paid from the compensation fund established
under section 7384e of this title.
(f) EFFECTIVE DATE—This
section shall take effect on
Pub. L.
106-398, Title XXXVI, § 3629
§ 7384u.
Separate treatment of certain uranium employees
(a) COMPENSATION PROVIDED—An individual who
receives, or has received, $100,000 under section 5 of the Radiation Exposure
Compensation Act (42 U.S.C. 2210 note) for a claim made under that Act
(hereinafter in this section referred to as a “covered uranium employee”), or
the survivor of that covered uranium employee if the employee is deceased,
shall receive compensation under this section in the amount of $50,000.
(b) MEDICAL BENEFITS—A
covered uranium employee shall receive medical benefits under section 7384t of
this title for the illness for which that employee received $100,000 under
section 5 of that Act.
(c) COORDINATION WITH RECA—The
compensation and benefits provided in subsections (a) and (b) are separate from
any compensation or benefits provided under that Act.
(d) PAYMENT FROM COMPENSATION FUND—The compensation provided under this section and the
compensation provided under section 5 of the Radiation Exposure Compensation
Act, when authorized or approved by the President, shall be paid from the
compensation fund established under section 7384e of this title.
(e) PAYMENTS IN THE CASE OF DECEASED
PERSONS—(1) In the case of a covered
employee who is deceased at the time of payment of compensation under this
section, whether or not the death is the result of the covered employee’s
occupational illness, such payment may be made only as follows:
(A) If the
covered employee is survived by a spouse who is living at the time of payment,
such payment shall be made to such surviving spouse.
(B) If there
is no surviving spouse described in subparagraph (A), such payment shall be
made in equal shares to all children of the covered employee who are living at
the time of payment.
(C) If there
is no surviving spouse described in subparagraph (A) and if there are no
children described in subparagraph (B), such payment shall be made in equal
shares to the parents of the covered employee who are living at the time of
payment.
(D) If there
is no surviving spouse described in subparagraph (A), and if there are no
children described in subparagraph (B) or parents described in subparagraph
(C), such payment shall be made in equal shares to all grandchildren of the
covered employee who are living at the time of payment.
(E) If there
is no surviving spouse described in subparagraph (A), and if there are no
children described in subparagraph (B), parents described in subparagraph (C),
or grandchildren described in subparagraph (D), then such payment shall be made
in equal shares to the grandparents of the covered employee who are living at
the time of payment.
(F)
Notwithstanding the other provisions of this paragraph, if there is—
(i) a surviving spouse described in subparagraph (A); and
(ii) at least one child of the covered employee who is living and
a minor at the time of payment and who is not a recognized natural child or
adopted child of such surviving spouse,
then half of such payment shall
be made to such surviving spouse, and the other half of such payment shall be
made in equal shares to each child of the covered employee who is living and a
minor at the time of payment.
(2) If a covered employee eligible for payment
dies before filing a claim under this title, a survivor of that employee who
may receive payment under paragraph (1) may file a claim for such payment.
(3) For purposes of this subsection—
(A) the “spouse” of an individual is a wife or husband of that
individual who was married to that individual for at least one year immediately
before the death of that individual;
(B) a “child” includes a recognized natural child, a stepchild
who lived with an individual in a regular parent-child relationship, and an
adopted child;
(C) a “parent” includes fathers and mothers through adoption;
(D) a “grandchild” of an individual is a child of a child of
that individual; and
(E) a “grandparent” of an individual is a parent of a parent of
that individual.
(f) PROCEDURES REQUIRED—The President shall
establish procedures to identify and notify each covered uranium employee, or
the survivor of that covered uranium employee if that employee is deceased, of
the availability of compensation and benefits under this section.
(g) EFFECTIVE DATE—This
section shall take effect on
Pub. L.
106-398, Title XXXVI, § 3630; Pub. L. 107-107, § 3151(a)(4)(B);
Pub. L. 108-375, § 3165(a)
§ 7384v. Assistance for claimants and
potential claimants
(a) ASSISTANCE FOR CLAIMANTS—The President shall,
upon the receipt of a request for assistance from a claimant under the
compensation program, provide assistance to the claimant in connection with the
claim, including—
(1) assistance
in securing medical testing and diagnostic services necessary to establish the
existence of a covered beryllium illness, chronic silicosis, or cancer; and
(2) such
other assistance as may be required to develop facts pertinent to the claim.
(b) ASSISTANCE FOR POTENTIAL CLAIMANTS—The
President shall take appropriate actions to inform and assist covered employees
who are potential claimants under the compensation program, and other potential
claimants under the compensation program, of the availability of compensation
under the compensation program, including actions to—
(1) ensure
the ready availability, in paper and electronic format, of forms necessary for
making claims;
(2) provide such covered employees
and other potential claimants with information and other support necessary for
making claims, including—
(A) medical
protocols for medical testing and diagnosis to establish the existence of a
covered beryllium illness, chronic silicosis, or cancer; and
(B) lists
of vendors approved for providing laboratory services related to such medical
testing and diagnosis; and
(3) provide
such additional assistance to such covered employees and other potential
claimants as may be required for the development of facts pertinent to a claim.
(c) INFORMATION FROM BERYLLIUM VENDORS AND OTHER CONTRACTORS—As
part of the assistance program provided under subsections (a) and (b), and as
permitted by law, the Secretary of Energy shall, upon the request of the
President, require a beryllium vendor or other Department of Energy contractor
or subcontractor to provide information relevant to a claim or potential claim
under the compensation program to the President.
Pub. L.
106-398, Title XXXVI, § 3631
§ 7384w. Subpoenas; oaths; examination of witnesses
The Secretary of Labor, with respect to any
matter under this part, may—
(1) issue subpoenas for and compel the attendance of witnesses;
(2)
administer oaths;
(3)
examine witnesses; and
(4)
require the production of books, papers, documents, and other evidence.
Pub. L. 106-398, Title XXXVI, § 3632, as added by Pub. L. 108-375, § 3163(a)
§ 7384w-1. Completion of site profiles
(a)
IN GENERAL.—To the extent that the Secretary of Labor determines it useful and practicable, the Secretary of Labor shall direct
the Director of the National Institute for Occupational Safety and Health to
prepare site profiles for a Department of Energy facility based on the records,
files, and other data provided by the Secretary of Energy and such other
information as is available, including information available from the former
worker medical screening programs of the Department of Energy.
(b)
INFORMATION.—The Secretary of Energy shall furnish to the Secretary of
Labor any information that the Secretary of Labor finds necessary or useful for
the production of such site profiles, including records from the Department of
Energy former worker medical screening program.
(c)
DEFINITION.—In this section, the term “site
profile” means an exposure assessment of a facility that identifies the toxic
substances or processes that were commonly used in each building or process of
the facility, and the time frame during which the potential for exposure to
toxic substances existed.
(d)
TIME FRAMES.—The Secretary of Health and Human Services shall establish
time frames for completing site profiles for those Department of Energy
facilities for which a site profile has not been completed. Not later than
Pub. L.
106-398, Title XXXVI, § 3633, as added by Pub. L. 108-375, § 3166(c)
PART
C—TREATMENT, COORDINATION, AND FORFEITURE OF COMPENSATION AND BENEFITS
§ 7385. Offset
for certain payments
A payment of compensation
to an individual, or to a survivor of that individual, under this subchapter
shall be offset by the amount of any payment made pursuant to a final award or
settlement on a claim (other than a claim for worker’s compensation), against
any person, that is based on injuries incurred by that individual on account of
the exposure for which compensation is payable under this subchapter.
Pub. L.
106-398, Title XXXVI, § 3641; Pub. L. 108-375, §
3162(a)
§ 7385a. Subrogation of the
Upon payment of
compensation under this subchapter, the
Pub. L.
106-398, Title XXXVI, § 3642; Pub. L. 108-375, §
3162(b)
§ 7385b. Payment in full settlement of
claims
Except as provided
in part E, the acceptance by an individual of payment of compensation under
part B of this subchapter with respect to a covered employee shall be in full
satisfaction of all claims of or on behalf of that individual against the
United States, against a Department of Energy contractor or subcontractor,
beryllium vendor, or atomic weapons employer, or against any person with
respect to that person’s performance of a contract with the United States, that
arise out of an exposure referred to in section 7385 of this title.
Pub. L.
106-398, Title XXXVI, § 3643; Pub. L. 108-375, § 3162(c)
§ 7385c.
Exclusivity of remedy against the
(a) IN GENERAL—The liability of the United States
or an instrumentality of the United States under this subchapter with respect to
a cancer (including a specified cancer), chronic silicosis, covered beryllium
illness, or death related thereto of a covered employee is exclusive and
instead of all other liability—
(1) of—
(A) the
(B) any
instrumentality of the
(C) a
contractor that contracted with the Department of Energy to provide management
and operation, management and integration, or environmental remediation of a
Department of Energy facility (in its capacity as a contractor);
(D) a
subcontractor that provided services, including construction, at a Department
of Energy facility (in its capacity as a subcontractor); and
(E) an
employee, agent, or assign of an entity specified in subparagraphs (A) through
(D);
(2) to—
(A) the covered
employee;
(B) the
covered employee’s legal representative, spouse, dependents, survivors and next
of kin; and
(C) any other person, including
any third party as to whom the covered employee, or the covered employee’s
legal representative, spouse, dependents, survivors, or next of kin, has a
cause of action relating to the cancer (including a specified cancer), chronic
silicosis, covered beryllium illness, or death, otherwise entitled to recover
damages from the United States, the instrumentality, the contractor, the
subcontractor, or the employee, agent, or assign of one of them;
because of the
cancer (including a specified cancer), chronic silicosis, covered beryllium
illness, or death in any proceeding or action including a direct judicial proceeding,
a civil action, a proceeding in admiralty, or a proceeding under a tort
liability statute or the common law.
(b) APPLICABILITY—This
section applies to all cases filed on or after
(c) WORKERS’ COMPENSATION—This
section does not apply to an administrative or judicial proceeding under a
State or Federal workers’ compensation law.
(d) APPLICABILITY TO PART E.—This
section applies with respect to part E to the covered medical condition or
covered illness or death of a covered DOE contractor employee on the same basis
as it applies with respect to part B to the cancer (including a specified
cancer), chronic silicosis, covered beryllium illness, or death of a covered
employee.
Pub. L.
106-398, Title XXXVI, § 3644; Pub. L. 108-375, §
3162(d)
§ 7385d. Election
of remedy for beryllium employees and atomic weapons employees
(a) EFFECT OF TORT CASES FILED BEFORE ENACTMENT
OF ORIGINAL LAW—(1) Except as provided in paragraph (2), if an otherwise
eligible individual filed a tort case specified in subsection (d) before
October 30, 2000, such individual shall be eligible for compensation and
benefits under part B.
(2) If such tort case remained pending as of the
date of the enactment of the National Defense Authorization Act for Fiscal Year
2002*, and such individual does not dismiss such tort case before December 31,
2003, such individual shall not be eligible for such compensation or benefits.
(b) EFFECT OF TORT CASES FILED BETWEEN ENACTMENT
OF ORIGINAL LAW AND ENACTMENT OF 2001 AMENDMENTS—(1) Except as provided in paragraph (2),
if an otherwise eligible individual filed a tort case specified in subsection
(d) during the period beginning on October 30, 2000, and ending on the date of
the enactment of the National Defense Authorization Act for Fiscal Year 2002*,
such individual shall not be eligible for such compensation or benefits.
(2) If such individual dismisses such tort case
on or before the last permissible date specified in paragraph (3), such
individual shall be eligible for such compensation or benefits.
(3) The last permissible date referred to in
paragraph (2) is the later of the following dates:
(A)
(B) The date
that is 30 months after the date the individual first becomes aware that an illness
covered by part B of a covered employee may be connected to the exposure of the
covered employee in the performance of duty under section 7384n.
(c) EFFECT OF TORT CASES FILED AFTER ENACTMENT OF
2001 AMENDMENTS—(1) If an otherwise eligible individual files a tort case
specified in subsection (d) after the date of the enactment of the National
Defense Authorization Act for Fiscal Year 2002*, such individual shall not be
eligible for such compensation or benefits if a final court decision is entered
against such individual in such tort case.
(2) If such a final court decision is not
entered, such individual shall nonetheless not be eligible for such
compensation or benefits, except as follows:
If such individual dismisses such tort case on or before the last
permissible date specified in paragraph (3), such individual shall be eligible
for such compensation and benefits.
(3) The last permissible date referred to in
paragraph (2) is the later of the following dates:
(A)
(B) The date
that is 30 months after the date the individual first becomes aware that an
illness covered by part B of a covered employee may be connected to the
exposure of the covered employee in the performance of duty under section
7384n.
(d) COVERED TORT CASES—A
tort case specified in this subsection is a tort case alleging a claim referred
to in section 7385b against a beryllium vendor or atomic weapons employer.
(e) WORKERS’ COMPENSATION—This
section does not apply to an administrative or judicial proceeding under a
State or Federal workers’ compensation law.
Pub. L.
106-398, Title XXXVI, § 3645; Pub. L. 107-107, § 3151(a)(5)
*
§ 7385e.
Certification of treatment of payments under other laws
Compensation or
benefits provided to an individual under this subchapter—
(1) shall
be treated for purposes of the internal revenue laws of the
(2) shall
not be included as income or resources for purposes of determining eligibility
to receive benefits described in section 3803(c)(2)(C) of Title 31, or the
amount of such benefits.
Pub. L.
106-398, Title XXXVI, § 3646; Pub. L. 108-375, § 3162(e)
§ 7385f. Claims not assignable or
transferable; choice of remedies
(a) CLAIMS NOT ASSIGNABLE OR TRANSFERABLE—No
claim cognizable under this subchapter shall be assignable or transferable.
(b) CHOICE OF REMEDIES—No individual may receive
more than one payment of compensation under part B of this subchapter.
Pub. L.
106-398, Title XXXVI, § 3647; Pub. L. 108-375, § 3162(f)
§ 7385g. Attorney fees
(a) GENERAL RULE—Notwithstanding
any contract, the representative of an individual may not receive, for services
rendered in connection with the claim of an individual for payment of lump-sum
compensation under part B of
this subchapter, more than that percentage specified in subsection (b) of a
payment made under part B of this subchapter on such claim.
(b) APPLICABLE PERCENTAGE LIMITATIONS—The percentage referred to in subsection (a) is—
(1) 2 percent for the filing of an initial claim for payment of lump-sum
compensation; and
(2) 10 percent with respect to objections
to a recommended decision denying payment of lump-sum compensation.
(c) INAPPLICABLILITY TO OTHER SERVICES—This section shall not apply with respect to services
rendered that are not in connection with such a claim for payment of lump-sum
compensation.
(d) PENALTY—Any such
representative who violates this section shall be fined not more than $5,000.
Pub. L. 106-398,
Title XXXVI, § 3648; Pub. L. 107-107, § 3151(a)(6)
§ 7385h. Certain
claims not affected by awards of damages
A payment under
this subchapter shall not be considered as any form of compensation or reimbursement
for a loss for purposes of imposing liability on any individual receiving such
payment, on the basis of such receipt, to repay any insurance carrier for
insurance payments, or to repay any person on account of workers’ compensation
payments; and a payment under this subchapter shall not affect any claim
against an insurance carrier with respect to insurance or against any person
with respect to workers’ compensation.
Pub. L.
106-398, Title XXXVI, § 3649; Pub. L. 108-375, § 3162(g)
§ 7385i.
Forfeiture of benefits by convicted felons
(a) FORFEITURE OF COMPENSATION—Any individual
convicted of a violation of section 1920 of Title 18, or any other Federal or
State criminal statute relating to fraud in the application for or receipt of
any benefit under this subchapter or under any other Federal or State workers’
compensation law, shall forfeit (as of the date of such conviction) any
entitlement to any compensation or benefit under this subchapter such
individual would otherwise be awarded for any injury, illness or death covered
by this subchapter for which the time of injury was on or before the date of
the conviction.
(b) INFORMATION—Notwithstanding section 552a of
Title 5, or any other Federal or State law, an agency of the United States, a State,
or a political subdivision of a State shall make available to the President,
upon written request from the President and if the President requires the
information to carry out this section, the names and Social Security account
numbers of individuals confined, for conviction of a felony, in a jail, prison,
or other penal institution or correctional facility under the jurisdiction of
that agency.
Pub. L.
106-398, Title XXXVI, § 3650; Pub. L. 108-375, § 3162(h)
§ 7385j.
Coordination with other Federal radiation compensation laws
Except in
accordance with section 7384u of this title, an individual may not receive
compensation or benefits under the compensation program for cancer and also
receive compensation under the Radiation Exposure Compensation Act (42 U.S.C.
2210 note) or section 1112(c) of Title 38.
Pub. L.
106-398, Title XXXVI, § 3651
§ 7385j-1. Social security earnings information
Notwithstanding the provision of section
552a of title 5, United States Code, or any other provision of Federal or State
law, the Social Security Administration shall make available to the Secretary
of Labor, upon written request, the Social Security earnings information of
living or deceased employees who may have sustained an illness that is the
subject of a claim under this subchapter, which the Secretary of Labor may
require to carry out the provisions of this subchapter.
Pub. L.
106-398, Title XXXVI, § 3652, as added by Pub. L. 108-375, § 3163(b)
§ 7385j-2. Recovery and waiver of overpayments
(a)
IN GENERAL.—When an overpayment has been made
to an individual under this subchapter because of an error of fact or law,
recovery shall be made under regulations prescribed by the Secretary of Labor
by decreasing later payments to which the individual is entitled. If the individual dies before the recovery is
completed, recovery shall be made by decreasing later benefits payable under
this subchapter with respect to the individual’s death.
(b) WAIVER.—Recovery by the United States under
this section may not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat
the purpose of this subchapter or would be against equity and good conscience.
(c)
LIABILITY.—A certifying or disbursing official
is not liable for an amount certified or paid by him when recovery of the
amount is waived under subsection (b) of this section, or when recovery under
subsection (a) of this section is not completed before the death of all
individuals against whose benefits deductions are authorized.
Pub. L.
106-398, Title XXXVI, § 3653, as added by Pub. L. 108-375, § 3163(c)
PART D—ASSISTANCE IN STATE WORKERS’ COMPENSATION
PROCEEDINGS
[§ 7385o. Repealed.]
Pub. L. 106-398,
Title XXXVI, § 3661; Pub. L. 108-375, § 3162(i)
PART E—CONTRACTOR EMPLOYEE COMPENSATION
§ 7385s. Definitions
In this
part:
(1) The term “covered DOE contractor employee”
means any Department of Energy contractor employee determined under section
7385s-4 to have contracted a covered illness through exposure at a Department
of Energy facility.
(2) The term “covered illness” means an illness
or death resulting from exposure to a toxic substance.
(3) The term “Secretary” means the Secretary of
Labor.
Pub. L. 106-398, Title XXXVI, § 3671, as added by Pub. L. 108-375, § 3161
§ 7385s-1. Compensation
to be provided
Subject to the other provisions of this
part:
(1)
CONTRACTOR EMPLOYEES.—A covered DOE contractor
employee shall receive contractor employee compensation under this part in
accordance with section 7385s-2.
(2)
SURVIVORS.—After the death of a covered DOE
contractor employee, compensation referred to in paragraph (1) shall not be
paid. Instead, the survivor of that
employee shall receive compensation as follows:
(A) Except as provided in subparagraph (B), the
survivor of that employee shall receive contractor employee compensation under
this part in accordance with section 7385s-3.
(B)
In a case in which the employee’s death occurred after the employee
applied under this part and before compensation was paid under paragraph (1),
and the employee’s death occurred from a cause other than the covered illness
of the employee, the survivor of that employee may elect to receive, in lieu of
compensation under subparagraph (A), the amount of contractor employee
compensation that the employee would have received in accordance with section
7385s-2 if the employee’s death had not occurred before compensation was paid
under paragraph (1).
Pub. L.
106-398, Title XXXVI, § 3672, as added by Pub. L. 108-375, § 3161
§ 7385s-2. Compensation schedule for contractor
employees
(a)
COMPENSATION PROVIDED.—The amount of contractor
employee compensation under this part for a covered DOE contractor employee
shall be the sum of the amounts determined under paragraphs (1) and (2), as
follows:
(1)
IMPAIRMENT.—(A) The Secretary
shall determine—
(i) the minimum impairment rating of that
employee, expressed as a number of percentage
points; and
(ii) the number of those points that are the
result of any covered illness contracted by that employee through exposure to a toxic substance at a
Department of Energy facility.
(B)
The employee shall receive an amount under this paragraph equal to
$2,500 multiplied by the number referred to in clause (ii) of subparagraph (A).
(2) WAGE LOSS.—(A) The Secretary shall determine—
(i) the calendar month
during which the employee first experienced wage loss as the result of any covered illness contracted by
that employee through exposure to a toxic substance
at a Department of Energy facility;
(ii) the average annual
wage of the employee for the 36-month period immediately preceding the calendar month referred to
in clause (i), excluding any portions of that period
during which the employee was unemployed; and
(iii) beginning with the
calendar year that includes the calendar month referred to in clause (i), through and including the
calendar year during which the employee attained normal retirement age (for purposes of the Social Security
Act)—
(I) the number of calendar
years during which, as the result of any covered illness contracted
by that employee through exposure to a toxic substance at a Department of Energy facility, the
employee’s annual wage exceeded 50 percent of
the average annual wage determined under clause (ii), but did not exceed 75 percent of the
average annual wage determined under clause (ii); and
(II) the number of calendar
years during which, as the result of any covered illness
contracted by that employee through exposure to a toxic substance at a Department of Energy
facility, the employee’s annual wage did not exceed 50 percent of the average annual wage
determined under clause (ii).
(B) The
employee shall receive an amount under this paragraph equal to the sum of—
(i) $10,000 multiplied by
the number referred to in clause (iii)(I) of subparagraph (A); and
(ii) $15,000 multiplied by
the number referred to in clause (iii)(II) of subparagraph (A).
(b)
DETERMINATION OF MINIMUM IMPAIRMENT RATING.—For
purposes of subsection (a), a minimum impairment rating shall be determined in
accordance with the American Medical Association’s Guides to the Evaluation of
Permanent Impairment.
Pub. L.
106-398, Title XXXVI, § 3673, as added by Pub. L. 108-375, § 3161
§ 7385s-3. Compensation schedule
for survivors
(a) CATEGORIES OF COMPENSATION.—The amount of contractor employee compensation under this
part for the survivor of a covered DOE contractor employee shall be determined
as follows:
(1) CATEGORY ONE.—The survivor shall receive the
amount of $125,000, if the Secretary determines that—
(A) the employee would
have been entitled to compensation under section 7385s-4 for a covered illness; and
(B) it is at least as likely as not that exposure
to a toxic substance at a Department of Energy facility was a significant factor in
aggravating, contributing to, or causing the death
of such employee.
(2)
CATEGORY TWO.—The survivor shall receive the amount of $150,000, if
paragraph (1) applies to the employee and the Secretary also determines that
there was an aggregate period of not less than 10 years, before the employee
attained normal retirement age (for purposes of the Social Security Act),
during which, as the result of any covered illness contracted by that employee
through exposure to a toxic substance at a Department of Energy facility, the
employee’s annual wage did not exceed 50 percent of the average annual wage of
that employee, as determined under section 7385s-2(a)(2)(A)(ii).
(3)
CATEGORY THREE.—The survivor shall receive the amount of $175,000, if
paragraph (1) applies to the employee and the Secretary also determines that
there was an aggregate period of not less than 20 years, before the employee attained
normal retirement age (for purposes of the Social Security Act), during which,
as the result of any covered illness contracted by that employee through
exposure to a toxic substance at a Department of Energy facility, the
employee’s annual wage did not exceed 50 percent of the average annual wage of
that employee, as determined under section 7385s-2(a)(2)(A)(ii).
(b) ONE AMOUNT ONLY.—The
survivor of a covered DOE contractor employee to whom more than one amount
under subsection (a) applies shall receive only the highest
such amount.
(c) DETERMINATION AND
ALLOCATION OF SHARES.—The amount under subsection (a) shall be paid only as
follows:
(1) If a covered spouse is alive at the time of
payment, such payment shall be made to such surviving spouse.
(2)
If there is no covered spouse described in paragraph (1), such payment
shall be made in equal shares to all covered children who are alive at the time
of payment.
(3)
Notwithstanding the other provisions of this subsection, if there is—
(A) a covered spouse described in paragraph (1);
and
(B) at least one covered child of the employee
who is living at the time of payment and who
is not a recognized natural child or adopted child of such covered spouse,
then half of such payment shall be made
to such covered spouse, and the other half of such payment shall be made in
equal shares to each covered child of the employee who is living at the time of
payment.
(d) DEFINITIONS.—In this
section:
(1) The term “covered spouse” means a spouse of
the employee who was married to the employee for at least one year immediately
before the employee’s death.
(2) The term “covered child” means a child of the
employee who, as of the employee’s death—
(A) had not attained
the age of 18 years;
(B) had not attained the age of 23 years and was
a full-time student who had been continuously
enrolled as a full-time student in one or more educational institutions since attaining the age of 18 years; or
(C) had been incapable of self-support.
(3)
The term “child” includes a recognized natural child, a stepchild who
lived with an individual in a regular parent-child relationship, and an adopted
child.
Pub. L.
106-398, Title XXXVI, § 3674, as added by Pub. L. 108-375, § 3161
§ 7385s-4. Determinations regarding contraction of
covered illnesses
(a) CASES
DETERMINED UNDER PART B.—A determination under part B
that a Department of Energy contractor employee is entitled to compensation
under that part for an occupational illness shall be treated for purposes of
this part as a determination that the employee contracted that illness through
exposure at a Department of Energy facility.
(b) CASES
DETERMINED UNDER FORMER PART D.—In the case of a covered illness
of an employee with respect to which a panel has made a positive determination
under section 7385o(d) and the Secretary of Energy has accepted that
determination under section 7385o(e)(2), or with respect to which a panel has
made a negative determination under section 7385o(d) and the Secretary of
Energy has found significant evidence to the contrary under section
7385o(e)(2), that determination shall be treated for purposes of this part as a
determination that the employee contracted the covered illness through exposure
at a Department of Energy facility.
(c) OTHER
CASES.—(1) In any other case, a
Department of Energy contractor employee shall be determined for purposes of
this part to have contracted a covered illness through exposure at a Department
of Energy facility if—
(A) it is
at least as likely as not that exposure to a toxic substance at a Department of
Energy facility was a significant factor in aggravating, contributing to, or
causing the illness; and
(B) it is
at least as likely as not that the exposure to such toxic substance was related
to employment at a Department of Energy facility.
(2) A
determination under paragraph (1) shall be made by the Secretary.
(d)
APPLICATIONS BY SPOUSES AND CHILDREN.—If a
spouse or child of a Department of Energy contractor employee applies for
benefits under this part, the Secretary shall make a determination under this
section with respect to that employee without regard to
whether the spouse is a “covered spouse”, or the child is a “covered child”,
under this part.
Pub. L. 106-398, Title XXXVI, §
3675, as added by Pub. L. 108-375, § 3161
§ 7385s-5. Applicability to certain uranium employees
(a)
IN GENERAL.—This part shall apply to—
(1)
a section 5 payment recipient who contracted a section 5 illness through
a section 5 exposure at a section 5 facility, or
(2)
a section 5 uranium worker determined under section 7385s-4(c) to have
contracted a covered illness through exposure to a toxic substance at a section
5 mine or mill (or to the survivor of that employee, as applicable), on the
same basis as it applies to a Department of Energy contractor employee
determined under section 7385s-4 to have contracted a covered illness through
exposure to a toxic substance at a Department of Energy facility (or to the
survivor of that employee, as applicable).
(b) DEFINITIONS.—In this
section:
(1)
The term “section 5 payment recipient” means an individual who receives,
or has received, $100,000 under section 5 of the Radiation Exposure
Compensation Act (42 U.S.C. 2210 note) for a claim made under that Act.
(2)
The terms “section 5 exposure”, “section 5
facility”, and “section 5 illness” mean the exposure, facility, and illness,
respectively, to which an individual’s status as a section 5 payment recipient
relates.
(3)
The term “section 5 uranium worker” means an individual to whom
subsection (a)(1)(A)(i) of section 5 of the Radiation Exposure Compensation Act
applies (whether directly or by reason of subsection (a)(2)).
(4)
The term “section 5 mine or mill” means the
mine or mill to which an individual’s status as a section 5 uranium worker
relates.
Pub. L. 106-398, Title XXXVI, §
3676, as added by Pub. L. 108-375, § 3161
§ 7385s-6. Administrative and judicial review
(a)
JUDICIAL REVIEW.—A person adversely affected or aggrieved by a final decision
of the Secretary under this part may review that order in the United States
district court in the district in which the injury was sustained, the employee
lives, the survivor lives, or the District of Columbia, by filing in such court within 60 days after the date on which that
final decision was issued a written petition praying that such decision be
modified or set aside. The person shall
also provide a copy of the petition to the Secretary. Upon such filing, the court shall have
jurisdiction over the proceeding and shall have the power to affirm, modify, or
set aside, in whole or in part, such decision.
The court may modify or set aside such decision only if the court
determines that such decision was arbitrary and capricious.
(b) ADMINISTRATIVE REVIEW.—The Secretary shall
ensure that recommended decisions of the Secretary with respect to a claim
under this part are subject to administrative review. The Secretary shall prescribe regulations for
carrying out such review or shall apply to this part the regulations applicable
to recommended decisions under part B.
Pub. L. 106-398, Title XXXVI, §
3677, as added by Pub. L. 108-375, § 3161
§ 7385s-7. Physicians services
(a)
IN GENERAL.—The Secretary may utilize the services of physicians for
purposes of making determinations under this part.
(b)
PHYSICIANS.—Any physicians whose services are utilized under subsection
(a) of this section shall possess appropriate expertise and experience
in the evaluation and determination of the extent of permanent physical
impairments or in the evaluation and diagnosis of illnesses or deaths
aggravated, contributed to, or caused by exposure to toxic substances.
(c)
ARRANGEMENT.—The Secretary may secure the services of physicians utilized
under subsection (a) of this section through the appointment of physicians or
by contract.
Pub. L. 106-398, Title XXXVI, §
3678, as added by Pub. L. 108-375, § 3161
§ 7385s-8. Medical benefits
A covered DOE contractor employee shall
be furnished medical benefits specified in section 7384t for the covered
illness to the same extent, and under the same conditions and limitations, as
an individual eligible for medical benefits under that section is furnished
medical benefits under that section.
Pub. L. 106-398, Title XXXVI, §
3679, as added by Pub. L. 108-375, § 3161
§ 7385s-9. Attorney fees
Section 7385g shall apply to a payment
under this part to the same extent that it applies to a payment under part B.
Pub. L. 106-398, Title XXXVI, §
3680, as added by Pub. L. 108-375, § 3161
§ 7385s-10. Administrative matters
(a)
IN GENERAL.—The Secretary shall administer this part.
(b) CONTRACT AUTHORITY.—The
Secretary may enter into contracts with appropriate persons and entities to
administer this part.
(c) RECORDS.—(1)(A) The Secretary of Energy shall provide to the
Secretary all records, files, and other data, whether paper, electronic,
imaged, or otherwise, developed by the Secretary of Energy that are applicable
to the administration of this part, including records, files, and data on
facility industrial hygiene, employment of individuals or groups, exposure and
medical records, and claims applications.
(B) In providing records, files, and other data
under this paragraph, the Secretary of Energy shall preserve the current
organization of such records, files, and other data, and shall provide such
description and indexing of such records, files, and other data as the
Secretary considers appropriate to facilitate their use by the Secretary.
(2) The Secretary of Energy and the Secretary
shall jointly undertake such actions as are appropriate to retrieve records
applicable to the claims of Department of Energy
contractor employees for contractor employee compensation under this part,
including employment records, records of exposure to beryllium, radiation,
silica, or other toxic substances, and records regarding medical treatment.
(d) INFORMATION.—At the
request of the Secretary, the Secretary of Energy and any contractor who
employed a Department of Energy contractor employee shall, within time periods
specified by the Secretary, provide to the Secretary and to the employee
information or documents in response to the request.
(e) REGULATIONS.—The Secretary shall prescribe
regulations necessary for the administration of this part. The initial regulations shall be prescribed
not later than 210 days after the date of the enactment of this part.* The Secretary may
prescribe interim final regulations necessary to meet the deadlines specified
in this part.
(f) TRANSITION
PROVISIONS.—(1) The Secretary shall
commence the administration of the provisions of this part not later than 210
days after the date of the enactment of this part.*
(2) Until the commencement of the administration
of this part, the Department of Energy Physicians Panels appointed pursuant to
part D shall continue to consider and issue determinations concerning any cases
pending before such Panels immediately before the date of the enactment of this
part.*
(3) The Secretary shall take such actions as are
appropriate to identify other activities under part D that will continue until
the commencement of the administration of part E.
(g) PREVIOUS APPLICATIONS.—Upon
the commencement of the administration of this part, any application previously
filed with the Secretary of Energy pursuant to part D shall be considered to
have been filed with the Secretary as a claim for benefits pursuant to this
part.
Pub. L. 106-398, Title XXXVI, §
3681, as added by Pub. L. 108-375, § 3161
*
§ 7385s-11. Coordination of benefits with respect to
state workers’ compensation
(a)
IN GENERAL.—An individual who has been awarded compensation under this
part, and who has also received benefits from a State workers’ compensation
system by reason of the same covered illness, shall receive compensation
specified in this part reduced by the amount of any workers’ compensation
benefits, other than medical benefits and benefits for vocational
rehabilitation, that the individual has received under the State workers’
compensation system by reason of the covered illness, after deducting the reasonable costs, as determined by the Secretary, of
obtaining those benefits under the State workers’ compensation system.
(b) WAIVER.—The Secretary may waive the
provisions of subsection (a) if the Secretary determines that the
administrative costs and burdens of implementing subsection (a) with respect to
a particular case or class of cases justifies such a waiver.
(c) INFORMATION.—Notwithstanding any other
provision of law, each State workers’ compensation authority shall, upon
request of the Secretary, provide to the Secretary on a quarterly basis
information concerning workers’ compensation benefits received by any covered
DOE contractor employee entitled to compensation or benefits under this part,
which shall include the name, Social Security number, and nature and amount of
workers’ compensation benefits for each such employee for which the request was
made.
Pub. L. 106-398, Title XXXVI, §
3682, as added by Pub. L. 108-375, § 3161
§ 7385s-12. Maximum aggregate compensation
For each individual whose illness or
death serves as the basis for compensation or benefits under this part, the
total amount of compensation (other than medical benefits) paid under this
part, to all persons, in the aggregate, on the basis of
that illness or death shall not exceed $250,000.
Pub. L. 106-398, Title XXXVI, §
3683, as added by Pub. L. 108-375, § 3161
§ 7385s-13. Funding of administrative costs
There is authorized and hereby
appropriated to the Secretary for fiscal year 2005 and thereafter such sums as
may be necessary to carry out this part.
Pub. L. 106-398, Title XXXVI, §
3684, as added by Pub. L. 108-375, § 3161
§ 7385s-14. Payment of compensation and benefits from
compensation fund
The compensation and benefits provided
under this part, when authorized or approved by the President, shall be paid
from the compensation fund established under section 7384e.
Pub. L. 106-398, Title XXXVI, §
3685, as added by Pub. L. 108-375, § 3161
§ 7385s-15. Office of
ombudsman
(a) ESTABLISHMENT.—There is established in the Department of Labor an office to
be known as the “Office of the Ombudsman” (in this section referred to as the
“Office”).
(b) HEAD.—The head of
the Office shall be the Ombudsman. The
individual serving as Ombudsman shall be either of the following:
(1) An officer or employee of the Department of
Labor designated by the Secretary for purposes of this section from among
officers and employees of the Department who have experience and expertise
necessary to carry out the duties of the Office specified in subsection (c).
(2)
An individual employed by the Secretary from the private sector from
among individuals in the private sector who have experience and expertise
necessary to carry out the duties of the Office specified in subsection (c).
(c) DUTIES.—The duties
of the Office shall be as follows:
(1) To provide information on the benefits
available under this part and on the requirements and procedures applicable to
the provision of such benefits.
(2)
To make recommendations to the Secretary regarding the location of
centers (to be known as “resource centers”) for the acceptance and development
of claims for benefits under this part.
(3)
To carry out such other duties with respect to this part as the Secretary shall specify for purposes of this section.
(d) INDEPENDENT OFFICE.—The Secretary shall take
appropriate actions to ensure the independence of the Office within the
Department of Labor, including independence from other officers and employees
of the Department engaged in activities relating to the administration of the
provisions of this part.
(e) ANNUAL REPORT.—(1) Not later than February 15 each year,
the Ombudsman shall submit to Congress a report on activities under this part.
(2) Each report under paragraph (1) shall set
forth the following:
(A) The number and types of complaints,
grievances, and requests for assistance received by the Ombudsman under this
part during the preceding year.
(B)
An assessment of the most common difficulties encountered by claimants
and potential claimants under this part during the preceding year.
(3) The first report under paragraph (1) shall be
the report submitted in 2006.
(f) OUTREACH.—The Secretary of Labor and the
Secretary of Health and Human Services shall each undertake outreach to advise
the public of the existence and duties of the Office.
(g) SUNSET.—Effective October 28, 2012, this
section shall have no further force or effect.
Pub. L. 106-398, Title XXXVI, § 3686, as added by Pub. L. 108-375, § 3161; Pub. L. 110-181, § 3116