<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:26290.wais]
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE
FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE
CREATED THIS PROGRAM? (PART I)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MARCH 1, 2006
__________
Serial No. 109-110
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
26-290 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800
Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
STEVE KING, Iowa SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas HOWARD L. BERMAN, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia MAXINE WATERS, California
DANIEL E. LUNGREN, California MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California
George Fishman, Chief Counsel
Art Arthur, Counsel
Allison Beach, Counsel
Cindy Blackston, Professional Staff
Nolan Rappaport, Minority Counsel
C O N T E N T S
----------
MARCH 1, 2006
OPENING STATEMENT
Page
The Honorable John N. Hostettler, a Representative in Congress
from the State of Indiana, and Chairman, Subcommittee on
Immigration, Border Security, and Claims....................... 1
The Honorable Sheila Jackson Lee, a Representative in Congress
from the State of Texas, and Ranking Member, Subcommittee on
Immigration, Border Security, and Claims....................... 5
The Honorable Howard Berman, a Representative in Congress from
the State of California, and Member, Subcommittee on
Immigration, Border Security, and Claims....................... 8
The Honorable Elton Gallegly, a Representative in Congress from
the State of California, and Member, Subcommittee on
Immigration, Border Security, and Claims....................... 8
WITNESSES
Mr. Shelby Hallmark, Director, Office of Workers Compensation
Programs, U.S. Department of Labor
Oral Testimony................................................. 10
Prepared Statement............................................. 11
John Howard, M.D., M.P.H., Director, National Institute for
Occupational Safety and Health, Centers for Disease Control and
Prevention, U.S. Department of Health and Human Services
Oral Testimony................................................. 19
Prepared Statement............................................. 20
James Melius, M.D., DRPH, Administrator, New York State Laborers
Health and Safety Trust Fund, Member of the Advisory Board on
Radiation and Worker Health
Oral Testimony................................................. 25
Prepared Statement............................................. 26
Mr. Richard D. Miller, Senior Policy Analyst, Government
Accountability Project
Oral Testimony................................................. 29
Prepared Statement............................................. 32
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking
Member, Subcommittee on Immigration, Border Security, and
Claims......................................................... 67
Prepared Statement of John Mauro, Ph.D., CHP, Project Manager, S.
Cohen & Associates (SC&A, Inc.)................................ 68
Responses of Shelby Hallmark, Director, Office of Workers
Compensation Programs, U.S. Department of Labor, to post-
hearing questions from the Honorable John N. Hostettler........ 73
Responses of John Howard, M.D., M.P.H., Director, National
Institute for Occupational Safety and Health, Centers for
Disease Control and Prevention, U.S. Department of Health and
Human Services, to post-hearing questions from the Honorable
John N. Hostettler............................................. 81
Responses of James Melius, M.D., DRPH, Administrator, New York
State Laborers Health and Safety Trust Fund, Member of the
Advisory Board on Radiation and Worker Health, to post-hearing
questions from the Honorable John N. Hostettler................ 90
Responses of Richard D. Miller, Senior Policy Analyst, Government
Accountability Project, to post-hearing questions from the
Honorable John N. Hostettler................................... 94
Letter from Sanford Cohen, President, S. Cohen Associates, Inc... 104
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE
FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE
CREATED THIS PROGRAM? (PART I)
----------
WEDNESDAY, MARCH 1, 2006
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 4:10 p.m., in
Room 2141, Rayburn House Office Building, the Honorable John N.
Hostettler (Chairman of the Subcommittee) presiding.
Mr. Hostettler. The Subcommittee will come to order.
Today's hearing is the first in a series of oversight
hearings the Subcommittee will be holding on the Energy
Employees Occupational Illness Compensation Program Act. The
focus of today's hearing is twofold. The immediate issue at
hand is an OMB internal document brought to the Subcommittee's
attention concerning the granting of special exposure cohort
status to groups of sick cold war workers.
The Department of Energy, or DOE, or its contractors often
either did not properly monitor workers' radiation exposures or
there are no existing records. So in these cases, this nuclear
worker compensation program directs the Department of Health
and Human Services, or HHS, after review and a recommendation
by the Advisory Board on Radiation and Worker Health, the
Board, to make such workers members of the Special Exposure
Cohort, or SEC.
Under the SEC, benefits are paid to workers with on-the-job
radiation exposures of at least a year and development of
cancer after at least 5 years. If designated an SEC member, a
$150,000 lump sum payment plus medical benefits are provided to
that member if diagnosed with one of 22 radio-sensitive
cancers. The lack of legitimate records of exposure to
radiation is, unfortunately, relatively common for these
workers, especially in the earlier years of the DOE weapons
complex. OMB's list of possible actions to be taken to minimize
costs in this area of the program needs to be dissected
carefully to determine its potential impact on the Government
promise made to these veterans of the Cold War in creating this
program.
Additionally, strengths, weaknesses, problems and
improvements in the program will be discussed today. Hopefully
we will all be better educated about this program by the end of
the hearing as well as know clearly what the priority issues
are that need to be addressed in subsequent hearings.
The findings in the law as enacted state in part that,
``since the inception of the nuclear weapons program, a large
number of nuclear weapons workers at sites at 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. 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
should have efficient, uniform, and adequate compensation for
beryllium-related health conditions and radiation-related
health conditions.'' That, in fact, was and still is
congressional intent. This intent was not created out of
speculation, but out of documented proof of the Government's
attempt to hide the truth from workers.
For example, the 1947 Atomic Energy or AEC Director of Oak
Ridge Operations' memo to the AEC general manager stated,
``Papers referring to levels of soil and water contamination
surrounding Atomic Energy Commission installations, idol
speculation on future genetic effects of radiation, and papers
dealing with potential process hazards to employees are
definitely prejudicial to the best interests of the Government.
Every such release is reflected in an increase of insurance
claims, increased difficulty in labor relations, and adverse
public sentiment.''
Later that year, Oak Ridge recommended that the AEC
Insurance Branch review declassification decisions for
liability concerns. Their recommendation stated, ``following
consultation with the Atomic Energy Commission Insurance
Branch, the following declassification criteria appears
desirable: If specific locations or activities of the Atomic
Energy Commission and/or its contractors are closely associated
with statements and information which would invite or tend to
encourage claims against the Atomic Energy Commission or its
contractors, such portions of articles to be published should
be reworded or deleted. The effective establishment of this
policy necessitates review by the Insurance Branch as well as
the Medical Division prior to declassification.''
In 1948, the AEC Declassification Branch found that a study
of Los Alamos workers could be declassified as, ``open
research.'' The Insurance Branch called for very careful study
before making the report public and wrote, ``We can see the
possibility of a shattering effect on the morale of the
employees if they become aware that there were substantial
reasons to question the standards of safety under which they
are working. In the hands of labor unions, the results of this
study would add substance to demands for extra hazardous duty
pay. Knowledge of the results of this study might increase the
number of claims of occupational injury due to radiation and
place a powerful weapon in the hands of a plaintiff's
attorney.''
This secrecy policy was documented again in 1960 by AEC
biomedical officials where they recognized that, ``possibly 300
people at Paducah should be checked out'' for neptunium
contamination, but that there was hesitation to, ``proceed to
intensive studies because of the union's use of this as an
excuse for hazard pay.''
The OMB document sent to the Labor Department sets out a
plan to effect the current decision-making process and
independent review on the basis of SEC status of approvals on
budget concerns rather than on the scientific basis mandated by
the law. The document commends DOL for informing OMB of a
potentially large expansion of benefits due to designation of
SECs and states that a White House-led interagency working
group will be convened to come up with options to
administratively contain growth in the cost of benefits paid
out by the program. It then lists five options for discussion
in that regard.
The first option is to require the Administration clearance
of SEC determinations. This option appears to place budget
examiners with only a budget focus in the role of making the
final decisions on approving SEC status for recommended groups
of claimants without regard for actual health determinations on
the adequacy or inadequacy of radiation records made for that
purpose.
The second option is to, ``address any imbalance in
membership of the President's Advisory Board on radiation and
worker health.'' This seems to imply that OMB believes the
current presidentially-appointed Board has been unbalanced.
Scientific integrity and processing claims has been maintained
by this nuclear worker compensation program's requirement that
the Board be balanced in medical, scientific, and worker
perspectives and independent in their review process. As a
result, the Board has been well-balanced; however, when a Board
member died last year whose voting record favored the position
of DOL and NIOSH officials responsible for the program, two
Board members not so predisposed in their voting were removed.
The reason for their removal was stated to be that their term
limits had expired; however, other members with the identical
tenure were not removed, rendering this explanation hollow.
The Judiciary Committee encouraged the White House to
maintain balance in the Board's composition and preserve the
institutional knowledge. The Committee urged that these Board
members be retained to sustain the Board's independence and
decision-making quality. The concerns were dismissed and three
new Board members were recommended by officials running the
program that is subject to Board review, and were placed on the
Board. It appears that the balanced Board OMB contemplates may
be one that will determine the scientific evidence available is
sufficient to justify denial of the majority of SECs in order
to contain growth of benefit payment costs. This does not
coincide with balancing the Board or ensuring independence as
contemplated in the law passed by Congress.
Option three calls for an expedited review of SEC
recommendations by outside experts. The law states, ``the
President shall establish an independent review process using
the Advisory Board on Radiation and Worker Health,'' thus
creating and tasking the Board with providing independent
review of science used for claims processing. If OMB's concern
is with costs, adding another layer of costly review makes no
sense. The indication is OMB doesn't trust the Board which the
President appointed nor its team of expert health physicists to
provide cost-containing results. The Committee has yet to find
evidence during the existence of the current review procedure
that the Board's advice has been unsound or led to unwarranted
approvals.
Option four questions the credibility of the Board's audit
contractor. This contractor's conflict of interest restrictions
are more stringent than the restrictions on NIOSH, its
contractors, or the Board members. Contrary to OMB's view, the
Committee's review of conflict of interest concerns has found
that significant conflicts of interest center on individuals
employed by Oak Ridge Associated Universities, or ORAU, the
contractor hired by NIOSH to perform dose reconstructions and
not the Board's contractor hired to review NIOSH and ORAU's
work.
The final option is to require that NIOSH demonstrate that
its site profiles and other dose reconstruction guidances are
balanced. Again, it is unclear what they mean by balanced. Both
site profiles and dose reconstructions are to be based on data
and facts. Data and facts are not a perspective. They are
either valid, comprehensive, and able to withstand public
scrutiny, or they are not. One question that must be answered
is the meaning of the term ``balance'' in this context.
Hopefully our witnesses will enlighten the Subcommittee in this
regard.
OMB's plan to address imbalances in the Board and conflicts
of interest with the audit contractor seems to be an attempt to
deny claims based on false realities and accusations. These
options seem to attempt to replace a statutorily-mandated
independent review process with a behind-closed-door process to
cut benefit payments to the claimants who had the least
knowledge of how hazardous their work conditions really were
because of the lack of exposure information in their cases. If
that is the case, their goal to cut costs would override the
honest validation of a claim due to credible scientific
evidence or lack thereof, the core purpose of the program.
Unlike the majority of claims programs administered by the
Labor Department, compensation provided by this nuclear worker
compensation program addresses purposeful harm perpetrated on
innocent employees without their knowledge. That dynamic of
this program adds a much higher presumption that claims should
be paid without hesitation or resistance than does a broken
bone from a fall at the office. This is not the Federal
Employees Compensation Act or the Longshore Compensation
Program.
It is troubling that the document thanks the DOL office
that administers its nuclear worker compensation program for
notifying them of the potential increased costs from SECs. That
coupled with statements by DOL officials on the public record
and in documents provided to the Committee expressing annoyance
with the depth of review conducted on NIOSH scientific findings
and the view that the Advisory Board needs to be brought under
control by NIOSH on their decisions don't reflect well on the
underlying attitude of some key officials involved with the
running of this program.
DOL was tasked with running a non-adversarial claims
process here, but at a minimum this document raises questions
about DOL's objectivity and neutrality as the claims
administrator. It does not seem to lie in line, once again,
with the spirit of the law. This plan to override science to
meet OMB's budget priorities is inappropriate and speaks to an
institutional mind set at odds with congressional intent. It
does a disservice to these Cold War veterans. Unless we root
out this problem, it will undermine Government credibility with
claimants and the public. Unfortunately this behavior by
Government officials could, due to reactive demands for
Congress to legislatively mandate more SECs, potentially by
this Chairman, be more costly to the Government coffers than
allowing the independent process originally established by
Congress to proceed unhindered.
I hope our witnesses today can speak to each of these
proposed actions and calm the furor this document has created
within the claimant community. The purpose of this nuclear
worker compensation program is as stated in the statute, to
provide for timely, uniform, and adequate compensation of
covered employees and, where applicable, survivors of such
employees. That should be the Government's guiding principle,
not undermining legitimate claims processing to save what in
reality is a minuscule fraction of the entire Federal budget.
At this time, I would like to recognize the gentlewoman
from Texas, the Ranking Member of the Subcommittee, Ms. Jackson
Lee for an opening statement.
Ms. Jackson Lee. Thank you very much, Mr. Chairman, and you
are to be commended for it is interesting as we have worked on
the Subcommittee for a number of years, we have found that the
vast amount of our work has focused on immigration, border
security, and certainly as it should. Many are not aware that
this is a Committee of first resort for those who are appealing
and/or seeking claims against the United States of America. In
fact, it is a Committee that I think has a very high
responsibility, and that is to ensure to the American people
that in spite of the bigness of the Government, the power of
the Federal Government, that each individual person is special
and important, that they feel if they have been injured by this
Government, this Government has the obligation and duty and
responsibility to be sensitive and responsible to addressing
that grievance.
So I would like to repeat the topic of this hearing, the
``Energy Employees Occupational Illness Compensation Program
Act: Are We Fulfilling the Promise We Made to These Veterans of
the Cold War When We Created the Program?''
I am very grateful that both the Chairman and myself are at
least in sync on the idea that we should know more. So I
congratulate you for this hearing.
Today's hearing will focus on Subtitle B of the Energy
Employees Occupational Illness Compensation Act. Subtitle B
covers three types of occupational illness associated with
making nuclear weapons cancer where it can be shown that the
cancer is at least as likely as not related to ionizing
radiation exposure while employed at a nuclear weapons
facility, the chronic beryllium disease or chronic silicosis
disease as it is known. Energy Department Federal contractor
and vendor employees who have contracted one of these illnesses
or their survivors may be eligible for a lump sum of $150,000
and prospective medical benefits. The act also provides for a
$50,000 supplemental payment to uranium miners, millers, or
their survivors who are eligible to receive $100,000 under the
Radiation Exposure Compensation Act and seems to be fair
enough.
The radiation-related cancer claims at the Department of
Health and Human Services through the National Institute for
Occupational Safety and Health is required to estimate a
worker's radiation dose if dose records are available. However,
during the earlier years of the nuclear weapons programs,
especially between the 1940's and 1970's, some workers were not
monitored and the monitoring that was done sometimes were
inadequate, I might add may have been lost in these years
between this time and the time of their claim. Also, some
records from this period were further destroyed.
The act provides a remedy for cases where it is not
feasible to estimate radiation doses with sufficient accuracy
and it is clear from job types that the worker's health may
have been endangered by radiation exposures. Friends, it seems
unlikely to me that anyone would voluntarily suggest that they
have been exposed to radiation. Who would want to be subjected
to that kind of danger and unnecessarily make a claim before
the Federal Government? I can assure you from those who have
had this experience and who have been harmed it is not a pretty
picture. It is painful. It is a deadly disease, and it alters
your life drastically.
Under these provisions, workers or their unions may
petition to be administratively designated as a special
exposure cohort which establishes an unrebuttable presumption
that certain cancers are work related. Members of a special
exposure cohort are eligible for the 150,000 lump sum benefit
if they have one of 22 radio-sensitive cancers and in general
if they work at a covered facility for at least 1 year in a job
that exposed them to radiation.
The HHS Secretary subject to review and recommendation from
the Advisory Board on Radiation Worker Health makes a special
exposure cohort designation. To date, the Secretary has denied
two special exposure cohort petitions and approved six
involving approximately 1,100 cases. The Administration
recently declared its intention to reduce the number of special
exposure cohorts in a memorandum referred to as an Office of
Management and Budget pass-back. My friends, it saddens me that
I can characterize that as saving a buck. The pass-back
provides for establishing a White House-led interagency work
group to develop options for administrative procedures that
will contain the growth and the cost of benefits provided by
the program. My other editorial comment is that is the highest
level of bureaucracy-ese, meaning language, that confuses and
of course seeks to eliminate or deny the program.
Options to be considered include requiring an
administration clearance for all special exposure cohort
designations, requiring an expedited review for outside
experts, addressing any imbalance in the membership of the
President's Advisory Board on Radiation and Worker Health, and
imposing constraints on the Advisory Board's audit contractor.
Let me join the Chairman and ask for the irregularities of
this particular Advisory Board to be fixed immediately and that
the fixing of the Board or the changing of the Board members
not be for the purpose, as it has been perceived, of
eliminating the benefits of so many. Might I suggest, as I
listed the various new requirements, that all they represent is
one bar after another for the innocent victims who offered and
sacrificed their lives on behalf of their country. The Cold War
was real. Ask anyone who lived in that period. Ask the children
of the fifties who responded to the sirens that suggested they
should go under their desks. Many today don't know of the bomb
shelters that were built in houses throughout the forties and
fifties.
People did it because their Government told them to do it.
Now we find that the very workers who were willing to put
themselves on the front lines to say I am a warrior of the Cold
War, send me, allow me to serve my country, now are getting the
back hand of America by its Government and being told that
you'll have to jump over the hoops in order be compensated.
Currently a special exposure cohort petition goes through
an initial evaluation by NIOSH and its recommendation is then
peer reviewed by the Advisory Board before it goes to the
Secretary for a decision. These reviews are conducted in the
open and on the record with an opportunity for input from
experts and the petitioner. We need to be concerned about this
system if it is broken or HHS is approving special exposure
cohort petitions that should be denied. We will hear testimony
on that issue today if that is the case, and, of course,
certainly if there are fractures in the system, if it doesn't
work or can be improved, we welcome the opportunity to do so,
but personally I do not welcome the opportunity for camouflage
and smoke and mirrors to deny innocent victims their right to
their claims. Congress intended for these claims to be able to
be compensated and they set out a very reasonable approach for
those who are the victims of lost records or destroyed records
or failed memory, but have the physical ailments and
opportunity for affirmation of their ailments to be able to be
compensated.
Five and a half years have passed since the Energy
Employees Occupational Illness Compensation Act was enacted
while I was here in the United States Congress, and the sick
workers who were supposed to be served by this program, they
are now dying. The Administration should be doing more to help
these workers, not trying to make it more difficult for them to
establish eligibility for compensation. It is too difficult
already. This is not a time with the returning Iraqi veterans
themselves suffering from heinous injuries, this is not a time
to deny those who are willing to serve our country. This is not
a time to deny their families, those families of those who are
willing to serve their country. This is not a time to save a
buck on the patriotism of Americans.
These workers made a commitment to our country when the
country needed them. Now it is our turn to help them in their
time of need. I hope this hearing will generate not only the
interest, but the information and solutions so that we can get
back on track so that Americans will know when you offer
yourself for service and say send me, Americans will stand up
and applaud and be welcoming you home with the necessary
response and compensation and nurturing for the injuries you
suffered in the line of duty.
I yield back, Mr. Chairman.
Mr. Hostettler. I thank the gentlelady.
The Chair now recognizes the gentleman from California for
purposes of an opening statement.
Mr. Berman. Thank you very much, Mr. Chairman. I hadn't
intended to give an opening statement, but unfortunately the
timing of my own schedule conflicts and I'm not able to stay. I
will have staff remaining to hear the witnesses; but I just
want to say I was very pleased and I would say stunned by the
openings that you and the Ranking Member gave and particularly,
Mr. Chairman, sort of your reference to the historical
development of this whole issue, the efforts to hide and
conceal and the notion that right now you have this process
that's called an effort to make it fair or balanced that is in
reality focused on those workers where these historical events
meant they were the least likely to know what they were being
exposed to because there was no measurement.
So I think you made just a number--point after point, you
were so on the case. The notion that this is a balance, it's a
balance between justice and trying to save some bucks, a
balance between exposure and trying to save some bucks, a
balance between serious illnesses and life-threatening and in
some cases life-taking illnesses and trying to save some bucks.
This effort as revealed by the reports of this memo aren't
about finding balance. It's about tying to bias the entire
process in defiance of what congressional intent was and I
think defiance of reasonable compensation.
One hundred and fifty thousand wasn't an effort to try and
measure the full extent of the pain and suffering of these
people. It was a lump sum payment in lieu of that process to be
done expeditiously for people for whom there was no
measurements of exposure and they will have no other way to get
compensated for their clearly employment-related illnesses, and
I think both of you have called this exactly right. I support
what you're doing, efforts to create new bureaucratic tiers for
people to have to jump through in a context, by the way, where
the process is already very slow. Large number of people who
have filed claims haven't gotten them adjudicated yet, and as
Ms. Jackson Lee pointed out, my guess is large numbers of
people who are eligible aren't even aware that this program
exists. That's where the efforts should be going, not finding
ways to stack advisory committees and create new criteria to,
``make it look better on a budget score sheet.''
So I look forward to the reports of this hearing and the
other hearings and both of your excellent efforts to try and
hopefully keep this from being implemented.
Thank you very much.
Mr. Hostettler. I thank the gentleman.
The Chair recognizes the other gentleman from California
for purposes of an opening statement when ready.
[The Chairman confers with counsel.]
Mr. Hostettler. At that time, we will be ready to hear the
gentleman's opening statement. At this time, I will introduce
the witnesses and----
[The Chairman further confers with counsel.]
Mr. Hostettler. It seems at this point, he's ready for that
opening statement, and the Chair recognizes the gentleman from
California.
Mr. Gallegly. I appreciate the Chairman's recognition and
allowing me to make an opening statement. I apologize for being
a little late. I've been on the Intelligence Committee in a
briefing that kind of ran over.
On January 31st of this year, I wrote a letter to Secretary
Chao expressing concern that a bare few Santa Susana field
laboratory workers who had filed claims for the Energy
Employees Occupational Illness Compensation Program had been
compensated and asking the status of the other requests. I've
not received a response.
So today I ask you, A, why is it that only 10 of 434 cases
for workers who may be eligible for compensation under the
Energy Employees Occupational Illness Compensation Program Act
have received benefits? How many claims have been for workers,
how many claims under EEOICPA by Santa Susana workers has the
Department of Labor declined benefits on? C, many of Santa
Susana workers sacrificed their health for the country. They
are aging in population. When they can expect their final
determination and payout on their applications for relief?
On its web site, the Department of Labor indicates that 31
claims have been referred to NIOSH and returned from NIOSH with
dose reconstructions, yet when I look at the site profile at
Santa Susana, the threshold studies, from what I understand,
for the site have not been completed. The Department of Labor
lists their status as under development. Can you explain how it
is that 31 claims have been returned from NIOSH with dose
reconstruction when the occupational environmental dose, the
occupational internal dose, and the occupational external dose
have not been completed?
Why is it that the Department of Labor requests less
funding for settlement of these claims in FY 2007 than it did
in FY 2006 when so many in my district still have seen no
relief or help for their medical bills whatever?
I yield back the balance of my time.
Mr. Hostettler. I thank the gentleman from California.
At this time, I will introduce our panel--Mr. Shelby
Hallmark is the Director for the Office of Workers Compensation
Programs in the United States Department of Labor. Dr. John
Howard is the Director of the National Institute for
Occupational Safety and Health, or NIOSH. Dr. James Melius is
the Administrator for the New York State Laborers Health and
Safety Trust Fund and is a member of the Advisory Board on
Radiation and Worker Health. Finally, Mr. Richard Miller is a
Senior Policy Analyst with the Government Accountability
Project.
Gentlemen, thank you for your presence here. As standard
operating procedure for the Judiciary Committee, I will ask you
now to stand, raise your right hand, and take the oath.
[Witnesses sworn.]
Mr. Hostettler. You may be seated. Let the record show that
the witnesses responded in the affirmative.
You will notice a set of lights that will help to aid us in
the process of expediting the testimony process. You will have
5 minutes for your testimony. Without objection, your written
statements will be made a part of the record. I'm going to ask
you to stay as close to your 5 minutes as possible so that we
can get to questions by the panel, and you will see a green
light and then I believe it's an amber light and then a red
light when the 5 minutes is up. Thank you.
Mr. Hallmark.
TESTIMONY OF SHELBY HALLMARK, DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR
Mr. Hallmark. Thank you, Mr. Chairman, for the chance to
describe the Department of Labor's efforts regarding the
program we call EEOICPA. I'm proud of what we and other
agencies have done to build this program.
First I'd like to say my staff are committed to delivering
these benefits promptly and accurately. We know that many
energy workers have been harmed and many are deeply
disillusioned by their Government's actions and by the long
wait they've had to have their cases fairly heard. Our goal has
been to make the Federal compensation program a reality that
people can count on and quickly.
In 2001, we worked hard to bring the new Part B program on
line. Secretary Elaine Chao presented the first check less than
10 months after enactment. Day one, we had a backlog of 30,000
cases and that backlog was under control within a year. To
date, we've paid out $1.4 billion under Part B. Our management
of Part B has been credible to the served community. We have
only three cases so far that have been appealed to court. A GAO
review had no findings with respect to DOL's stewardship, and
in October 2004, Congress chose to entrust the new Part E
program to us as well.
Part E brought a new backlog of 25,000 cases that had been
pending for years under the old Part D program with the
Department of Energy. This time, the first check went out
within less than 2 months and we paid out $57 million under
Part E before our regulations were even issued--on time--in May
of 2005. To date, we've paid almost $300 million under Part E,
which is a good start but only a start, and to demonstrate even
broader progress, we have committed to making initial decisions
on at least three-quarters of all the old Part D cases by this
September. We need to make this a real program.
We need to move faster on some aspects on computing
benefits for living employees under this program. The pay-outs
so far have been largely to survivors since that can be done
quickly, but all aspects of the program are now fully operable
and we're monitoring progress daily on wage loss and impairment
payments for living workers. We will also use the feedback from
our recent ombudsman's report to sharpen our processes.
The ombudsman's report also reported concerns regarding the
dose reconstruction process. While we all agree this process
has taken longer than we would like, it has been a massive
undertaking and NIOSH has taken the job very seriously and is
working very hard to expedite it.
We hear there are concerns with respect to the process of
adding special exposure cohort classes, as you have spoken of,
which conveys presumptive approval bypassing dose
reconstruction for 22 listed cancers.
As the lead agency for EEOICPA, we have long supported
close coordination between all the departments which share its
administration. We've tried to help NIOSH and the Advisory
Board in their deliberations on SEC expansions especially in
terms of the impact that new class designations have on the
claims process. For example, designation of a class may
extinguish the chance for benefits for some workers with non-
listed cancers.
While HHS does the science of reconstructing radiation dose
and deciding on new SEC classes, DOL must defend those findings
in Federal Court. It's a key value for us as the adjudicator
and the entity entrusted with explaining to the public the
overall workings of EEOICPA that critical action such as
extension of the SEC are based on fair understandable and
consistent principles. Under no circumstances does DOL seek to
cut benefits through our coordination efforts in this matter.
Determining the size and shape of an SEC class depends not
only on scientific questions about radiation, but also on more
mundane issues like placing workers in various locations within
a facility. DOL has important information and insights with
respect to those kinds of nonscientific issues. Also, clear
definition of the boundaries of an SEC class is very important
in individual case adjudication. DOL has sought input in the
past designation process to ensure that we'll be able to fairly
adjudicate those boundaries once a class is established. For
example, the SEC class for the Oak Ridge Y-12 plant includes
workers engaged in uranium enrichment operations or other
radiological activities. Since the latter term has been hard to
pin down, claims for various categories of work such as
custodians, guards, construction workers, and so on could be
judged either to be in or out of the class, which could cause
adjudicatory problems and concerns for the claimants.
DOL has a fiduciary responsibility for EEOICPA to make sure
that payments are in accord with the law as established by
Congress, but our main focus is that the program is
administered fairly, accurately, and consistently and that it
will be understandable to claimants throughout the nuclear
weapons complex now and for years to come. We've worked hard to
achieve that result and we'll continue to so.
I'll be glad to answer questions when that time comes.
[The prepared statement of Mr. Hallmark follows:]
Prepared Statement of Shelby Hallmark
Mr. Chairman, and Members of the Committee, my name is Shelby
Hallmark. I am the Director of the Office of Workers' Compensation
Programs (OWCP), a component of the Employment Standards Administration
(ESA), Department of Labor (DOL).
I am pleased to appear before the Subcommittee today to discuss the
Energy Employees Occupational Illness Compensation Program Act
(EEOICPA). While we are proud of the progress DOL has made in
implementing both Parts B and E of the Act, the EEOICPA has been and
continues to be an interdepartmental activity, involving the closely
coordinated efforts of the Departments of Energy (DOE), Health and
Human Services (HHS), Department of Justice (DOJ), as well as Labor.
PROGRAM HISTORY
The EEOICPA was initially enacted on October 30, 2000. It
established a federal payment program (Part B) under which DOE
contractor employees and certain other employees and their eligible
survivors are entitled to receive monetary compensation and medical
benefits from the federal government for radiation-induced cancer,
beryllium disease or silicosis. Executive Order 13179 of December 7,
2000, assigned primary responsibility for Part B's administration to
DOL to ensure that the program was up and running by July 31, 2001. We
succeeded in issuing interim final regulations in May of that year and
established a fully functioning program on schedule. Secretary of Labor
Elaine Chao presented the first EEOICPA check on August 9, 2001.
Since then, DOL has received over 71,800 Part B claims covering
51,200 cases. (Each case relates to a single employee; more than one
claim can be associated with a single case when multiple survivors are
involved.) Our district office staff have made recommended decisions or
referred a case to NIOSH for dose reconstruction in over 95 percent of
the cases received. There have been 47,877 Final Decisions with 19,280
approvals and 28,597 denials. DOL has issued in excess of $1.3 billion
in Part B compensation payments to over 17,600 claimants. Additionally,
over $88 million in medical benefits has been paid. The vast majority
of denied claims are for conditions claimed that are non-covered
conditions under Part B, largely due to confusion between Part B, which
covers only three types of conditions, and the other segment of the
statute, which covers all diseases caused by toxic exposures.
EEOICPA originally included a second assistance program, under
Subpart D of the Act, that established a process under which DOE
contractor employees and their eligible survivors could seek assistance
from DOE in obtaining state workers' compensation benefits. Under this
program, if a contractor employee's claim satisfied certain preliminary
criteria, DOE was required to submit the employee's claim to a
Physicians Panel, to determine whether the employee had contracted a
covered illness as a result of exposure to a toxic substance at a DOE
facility. If the Panel returned a positive finding that was accepted by
the agency, DOE was authorized, to the extent permitted by law, to
direct the DOE contractor not to contest the claim for state workers'
compensation benefits.
In the Ronald W. Reagan National Defense Authorization Act for
Fiscal Year 2005, Pub. L. 108-375 (October 28, 2004), Congress
abolished Part D of EEOICPA. In its place, a new Part E was created,
and administration of the new program was assigned to DOL. Part E
establishes a new system of federal payments for DOE contractor
employees and eligible survivors of such employees. Part E benefits
were also extended to uranium miners, millers and ore transporters
covered by section 5 of the Radiation Exposure Compensation Act.
Congress also amended certain other provisions contained in EEOICPA
that applied to Part B and specified that DOL prescribe interim final
regulations implementing the amendments to EEOICPA within 210 days of
enactment.
When the amendment was passed in October 2004, there were more than
25,000 cases pending with the old Part D program, many for more than
four years, thus creating an instant backlog for the new program.
Accordingly, DOL identified certain types of claims that met specific,
straightforward criteria contained in the amendment itself that could
be adjudicated without detailed regulations. Within two months of
enactment, DOL began providing compensation under the newly established
Part E of the EEOICPA, using preliminary procedural guidance. Under the
preliminary procedures, DOL issued over $55 million to 447 recipients
prior to the issuance of regulations.
On May 26, 2005, DOL successfully met the congressionally mandated
deadline to prescribe regulations and begin full implementation of the
new Part E. The release of interim final rules (IFR), published in the
Federal Register on June 8, 2005, provided guidance regarding DOL's
administration of the Act and how the claims adjudication process will
function. With the rule in effect, DOL can render decisions on all
aspects of program. To further facilitate this process, DOL issued
additional comprehensive procedural guidance in May 2005 and conducted
training for all District Office field staff regarding the proper
implementation of the new amendment. These procedures will be updated
based upon the issuance of the Final Rule, and additional training will
be conducted as needed.
DOL can and will make changes to the new regulations that are
appropriate given public comment and its actual experience in
implementing the Act when it issues final regulations. Because of DOL's
experience in administering similar programs, and because of the close
relationship of Part E of EEOICPA to the existing Part B, DOL is
confident that this process will again work well.
As noted, many claimants whose cases were transferred to DOL from
DOE had been waiting for a decision for four years. To demonstrate our
sense of urgency in addressing these claims, the Labor Department
established a primary goal to issue 1,200 Part E payments by the end of
FY 2005, less than a year following enactment of the program. That goal
was exceeded. By September 30, 2005, 1,535 payments totaling over $194
million in compensation benefits had been issued. The bulk of these
compensation payments were made to surviving family members because the
process for assessing impairment and wage loss to living workers was
complex and took longer to establish under statutory and regulatory
guidelines. Payments are now also being made to living employees, and
DOL is committed to the swift, sure, and accurate adjudication of these
cases as quickly as possible.
Between the effective date of the enactment of the EEOICPA
amendments on October 28, 2004, and February 21, 2006, DOL received the
25,000 plus occupational illness claims from the previous DOE program,
as well as over 12,800 new Part E claims. We have made more than 7,200
Part E recommended decisions (the initial determination made in one of
our four district offices), and more than 3,400 of those have gone
through to final decision (the administrative judgment rendered by our
Final Adjudication Branch). Compensation in excess of $292 million has
been issued to 2,319 recipients under the new Part E program. An
additional 1,359 cases are in the pipeline for payment.
The DOL also initiated a series of Town Hall meetings to explain to
affected workers or their survivors the benefits available, as well as
explaining the IFR and other issues related to the implementation of
Part E to affected workers or their survivors. Eighty-two meetings were
held in cities that had the most claimants and potential claimants,
such as Los Alamos, New Mexico; Oak Ridge, Tennessee; and Hanford,
Washington.
For greater efficiency and speed, OWCP is implementing the October
28, 2004, EEOICPA amendments, to the extent possible, by adjudicating
all claims for benefits under Parts B and E of the EEOICPA as one
EEOICPA claim. Where possible, decisions will be issued addressing both
Part B and Part E simultaneously. However, partial decisions will be
issued in cases where benefits under some provisions can be awarded but
claims under other provisions require further development and
documentation.
ADMINISTRATION OF EEOICPA
EEOICPA is administered by the Division of Energy Employees
Occupational Illness Compensation (DEEOIC) in OWCP. Claim adjudication
is accomplished through four EEOICPA District Offices located in the
OWCP regional offices. These District offices are located in
Jacksonville, FL; Cleveland, OH; Denver, CO; and Seattle, WA with
jurisdiction based on the location of the employee's last employment.
Headquarters, in Washington, DC, provides planning, budgeting,
performance measures, accountability evaluations, policy, central
medical bill processing, and administrative leadership. Additionally,
final decisions are issued by the Final Adjudication Branch (FAB),
which is independent from the District offices, through a National FAB
office in Washington, DC, and four District FAB offices collocated with
the District offices. DOL has hired over 180 additional personnel to
administer both Parts B and E.
DEEOIC Resource Centers continue to assist employees and families
filing claims. Assistance is provided through eleven strategically
placed Resource Centers located in Oak Ridge, TN; North Augusta, SC;
Paducah, KY; Portsmouth, OH; Denver, CO; Espanola, NM; Livermore, CA;
Idaho Falls, ID; Richland, WA; Las Vegas, NV; and Amherst, NY. As a
result of a successful cost-comparison competition under OMB Circular
A-76, the resource centers, as part of the government's Most Efficient
Organization (MEO), assumed additional responsibilities in employment
verification and developing occupational histories for new Part E
claims. Since August 2005, the resource centers fully completed 4,028
initial employment verification requests and 3,151 Occupational History
Questionnaires.
EEOICPA PART B
For a worker or eligible survivor to qualify for benefits under
Part B, the employee must have worked at a covered DOE, Atomic Weapons
Employer, or beryllium vendor facility during a covered time period and
developed one of the specified illnesses as a result of their exposure
to radiation, beryllium or silica. Covered medical conditions include
radiation-induced cancer, beryllium disease, or chronic silicosis
(chronic silicosis is only covered for individuals who worked in
nuclear test tunnels in Nevada and Alaska). Covered workers receive a
one-time, lump-sum payment of $150,000 as well as future medical
treatment for the covered condition (medical services and evaluations
only for beryllium sensitivity). Qualified survivors of deceased
covered employees may also be eligible for the lump sum compensation
amount of $150,000. The EEOICPA also provides compensation in the
amount of $50,000 to individuals or their eligible survivors awarded
benefits by the Department of Justice (DOJ) under Section 5 of the
Radiation Exposure Compensation Act (RECA).
There are several different types of claims under Part B of the
Act, which require different processing steps. Claims for the $50,000
RECA supplement are the least complex, involving verification via the
Department of Justice (DOJ) that a RECA award has been made, and
documentation of the identity of the claimant (including survivor
relationship issues). For claims involving beryllium disease,
silicosis, or a ``specified cancer'' for workers at a Special Exposure
Cohort (SEC) facility, the employment and illness documentation is
evaluated in accordance with the criteria in the EEOICPA. The DOL
district office will then issue a recommended decision to the claimant.
DOL can move directly to a decision on cases involving a
``specified cancer'' at an SEC facility because the Act provided a
presumption that any of the twenty-two listed cancers incurred by an
SEC worker was caused by radiation exposure at the SEC facility. In
cases involving cancers other than the twenty-two specified cancers in
the Act, the case will be referred to the National Institute for
Occupational Safety and Health (NIOSH) for a dose reconstruction so
that a determination can be made whether to award benefits based upon
the probability that radiation caused the cancer. The dose is the
relevant amount and character of radiation to which the individual was
exposed related to his or her employment in the nuclear weapons
complex.
After NIOSH completes the dose reconstruction and calculates a dose
estimate for the worker, DOL takes this estimate and applies the
methodology also promulgated by the Department of Health and Human
Services in its probability of causation regulation to determine if the
statutory causality test is met. The standard is met if the cancer was
``at least as likely as not'' related to the covered employment, as
indicated by a determination of at least a 50 percent probability.
DOL's district office then issues a recommended decision on eligibility
for EEOICPA benefits, which is subject to the same subsequent
administrative procedures and appeal rights described above with regard
to other claims.
NIOSH recently designated several classes for inclusion in the
Special Exposure Cohort. To date, these include the Uranium Division of
Mallinckrodt Chemical Works at the Destrehan Street facility (St.
Louis, MO) from 1942-1948 and from 1949-1957; AEC operations during the
period from March 1949 through 1974 for the Iowa Army Ammunition Plant
(IAAP); IAAP employees who worked as radiographers from May 1948 to
March 1949 in support of AEC operations; employees involved in uranium
enrichment operations or other radiological activities at the Y-12
Plant from March 1943 through December 1947; and certain employees at
the Linde Ceramics Plant in Tonawanda, New York, 1942-1947. DEEOIC has
issued special procedures for the proper handling of these claims and
stands poised to develop and adjudicate claims arising out of these and
any future new SEC designations.
The DEEOIC strives to achieve quality agency decisions and provide
clear and effective communications to its customers and stakeholders.
In its September 2004 report entitled ``Energy Employees Compensation;
Many Claims Have Been Processed, but Action Is Needed to Expedite
Processing of Claims Requiring Radiation Exposure Estimates,'' the
Government Accountability Office (GAO) evaluated ``how. . . Labor's
procedures and practices ensure timely and consistent processing of
claims not referred to NIOSH.'' Through January 2004, 83% of all claims
not requiring NIOSH dose reconstruction were fully processed. GAO
indicated it saw no need ``to issue formal recommendations regarding
DOL performance.''
The Final Adjudication Branch (FAB) continues to perform well. To
accommodate the anticipated Part E caseload, staff for the FAB has been
doubled. In FY 2005 FAB issued 11,709 claim-level final decisions under
Part B and 2,110 claim-level final decisions under Part E,
significantly surpassing the operational plan goals. FAB conducted 656
hearings and responded to 897 requests from claimants for review of the
written record during the year.
EEOICPA PART E
The creation of Part E of EEOICPA established a new system of
federal payments for DOE contractor employees and eligible survivors of
such employees for illnesses determined to result from exposures to any
toxic substances at a DOE facility. These benefits are also provided to
uranium miners, millers, and ore transporters covered by Section 5 of
the Radiation Exposure Compensation Act (RECA). Part E provides up to
$250,000 in compensation and medical benefits for accepted illnesses.
Benefits are provided for any illness if it is established that it is
at least as likely as not that exposure to a toxic substance was a
significant factor in causing, contributing to, or aggravating an
illness or death of the employee. Additionally, the Act provides that
any determination to award benefits under Part B (including for RECA
Section 5 claims), as well as any positive finding by DOE under Part D,
is an automatic acceptance of causation under Part E.
Part E compensation determinations involve components of
impairment, wage-loss, and survivor benefits. The maximum benefit is
$250,000 for all claims relating to any individual employee. Medical
benefits do not count against the maximum compensation cap. Living
employees are eligible for benefits based on impairment and years of
qualifying wage-loss and survivors are eligible for survivor benefits
that include additional benefits if there were also significant years
of qualifying wage-loss associated with the accepted illness.
The statute defines survivors under Part E as a living spouse who
was married to the employee for at least one year immediately prior to
the death of the employee, and certain dependent children. If there is
no living spouse, unlike in Part B, children are only eligible
survivors if at the time of death of the employee they were under the
age of 18 years old, under 23 years old and a full time student
continuously since age 18, or any age if incapable of self support.
The Act provides a ``basic'' lump sum benefit of $125,000 to
eligible survivors where it is established that the employee was
exposed to a toxic substance at a DOE facility; that it is at least as
likely as not that the exposure caused, contributed to, or aggravated
an illness; and, that the illness then caused, or contributed to the
death of the employee. It also provides $25,000 in additional benefits
to eligible survivors of a deceased Part E employee, beyond the
``basic'' lump-sum payment in the amount of $125,000, if the deceased
employee had, up to his or her ``normal retirement age'' under the
Social Security Act, at least ten aggregate calendar years of wage-loss
of at least 50 percent of his ``average annual wage.'' If an employee
had at least twenty such years, the additional amount paid to an
eligible survivor of such employee increases to $50,000.
DEEOIC has contracted with a variety of health care professionals
from a diverse background of medical disciplines to evaluate claims for
causation and impairment. DEEOIC is assembling a network of physicians
to review case files and will have physicians on-site at each of our
four district offices to provide input to its claims professionals
regarding complex medical issues. In addition, DEEOIC added a Medical
Director to its National Office staff to assist with case file review
and policy determinations.
ADMINISTRATIVE CHALLENGES
The primary difficulty in implementing both parts of EEOICPA has
been to get an effective claims processing system up and running in a
very short period of time, so as to address large initial backlogs.
PART B
The statistics provided above indicate that we have been largely
successful in addressing the Part B backlog, with the exception of
those cases that require a dose reconstruction. More than 21,000 cases
have been referred to NIOSH for dose reconstruction since the program's
inception, and about 11,600 dose reconstructions have been completed,
leaving roughly 8,500 cases pending at NIOSH. This time-consuming
process has been the source of significant concern, and NIOSH has taken
numerous steps to speed up its production of completed reconstructions.
During FY 2006, NIOSH has returned an average of 500 completed dose
reconstructions per month, and they project resolving a large portion
of the current inventory by the end of this fiscal year.
The creation of new SEC classes requires close coordination between
DOL and NIOSH to determine which cases at the site in question have
been affected by the new class and which continue to require dose
reconstruction. Because each new SEC class designation has been unique
in its rationale and in its impact on how (or if) dose reconstruction
can be done for cancers that are not granted presumptive coverage, DOL
and NIOSH have had to work out unique procedures for each class for
determining how such cases will be processed. The return of large
numbers of SEC cases also creates large unanticipated workload
increases in DOL's district offices, and DEEOIC leadership has had to
respond to those bulges in workload by shifting caseloads among the
four district offices.
Once a class is added, DOL must also use the designated class
definition to identify claims that meet the requirements for
adjudication as an SEC claim. Recent additions to the SEC have proven
to be problematic due to ambiguous or inconsistent class definitions.
For example, the HHS designation document defined the Oak Ridge Y-12
class as employees who worked in uranium enrichment operations or
``other radiological activities.'' It is not clear what functions or
employee groups are covered by the latter term. Numerous claims from
employees such as calutron building custodians, security workers,
laborers, and others who could have been exposed in these facilities
may not meet the definition as designated. Conversely, individuals who
were likely not significantly exposed may be included in the SEC class
due to the ambiguity of the class definition. DOL continues to
coordinate with HHS/NIOSH to achieve the clearest and most accurate
class definitions possible, so that claims decisions flowing from these
determinations are understandable and fair.
PART E
While we are proud of our ability to get the new program up and
running on time and within Congressional deadlines--and particularly of
our ability to make a significant number of payments in the first
year--Part E is more complex than the older program and has presented
challenges in ensuring that all aspects are fully operational. In
addition, efforts to ramp up case processing under the new Part E must
be balanced with continued timely support of Part B claims processing,
which has itself become more complicated with the declaration of
several new SEC classes.
The start-up time for Part E was somewhat more protracted than we
had hoped, especially with respect to the full implementation of
procedures for handling wage-loss and impairment rating determinations.
These processes required the development of complex procedural
guidance, engagement of medical consultants and retainers to carry out
case evaluations, and extensive staff training. As a result, the great
majority of payments made under Part E to date have gone to survivors,
whose benefits are much simpler to compute.
Nevertheless, all the necessary components of the Part E program
are now in place and, for the remainder of FY 2006, we anticipate a
substantial increase in both the total number of cases being
adjudicated and the numbers and types of payments being issued.
OFFICE OF THE OMBUDSMAN
The 2004 amendments also created an Office of the Ombudsman. In
compliance with statutory requirements, on February 24, 2005, the
Secretary appointed Donald Shalhoub to serve as the Ombudsman. The role
of the Ombudsman is to conduct outreach to claimants and potential
claimants; make recommendations to the Secretary of Labor on where to
locate Resource Centers; submit an Annual Report to Congress by
February 15, setting forth the number and types of complaints,
grievances and requests for assistance received by the Ombudsman, and
an assessment of the most common difficulties encountered by claimants
and potential claimants under Part E. In making her selection, the
Secretary picked an extremely qualified individual with long experience
in addressing occupational safety and health issues and a commitment to
assisting workers.
As you know, Mr. Shalhoub recently submitted his first Report to
Congress. While his report naturally highlights the complaints and
concerns some 600 claimants brought to his attention, we believe it is
important to compare this number to the more than 45,000 individuals
who have filed a Part E claim thus far. We believe the great majority
of this community understands that DOL is working hard to respond to
their needs, and recognizes that a new program of this kind will take
some time to address everyone's claim, particularly since we inherited
a backlog of 25,000 claims.
A significant percentage of the specific concerns raised by
claimants relate to statutory restrictions (e.g., the exclusion of
adult children from survivor benefits under Part E) which are beyond
the purview of DOL. An additional group complains about the dose
reconstruction process, which is being addressed by HHS/NIOSH. With
respect to issues that do relate to DOL's administrative
responsibilities, we take the concerns expressed in the Report
seriously and will use them to improve our processes and especially our
offices' communications with claimants.
In several areas, the issues raised indicate confusion about how
existing policies and procedures actually work, or a lack of clarity of
the program documentation we provide. To address these concerns and the
Ombudsman's related recommendations, we will, among other actions, work
with NIOSH and our own staff to ensure that the waiver and appeals
processes involving dose reconstruction and the related Part B and Part
E adjudications are more clearly explained; ensure that DEEOIC
decisions and other documents make it clear whether they apply to Part
B, Part E, or both; and issue general information materials explaining
in more detail how wage-loss and impairment rating decisions will be
handled.
The Report discloses that the Ombudsman received 23 complaints that
claims examiners do not always return phone calls. DOL is working hard
to avoid such service lapses. We carefully track phone calls received
from claimants and hold our employees accountable for meeting program
standards for prompt response. In FY 2005, OWCP received 53,164
EEOICPA-related telephone calls, of which 37,060 were responded to at
the time of the call. Of the remaining 16,104 which required a return
call, over 96 percent were completed within 2 days. The program is
striving to improve upon its customer service, and will seek to better
those statistics in FY 2006.
The Report stated that 10 claimants believe that OWCP's District
Offices do not share their sense of urgency because their claims have
been reassigned to new claims examiners. We hope that the public will
recognize that such reassignments have been necessary due to the
addition of nearly 200 new employees during the past year and are part
of our effort to expedite case processing across-the-board. We
understand the concern and frustration of claimants who have been
awaiting a decision for several years, we are committed to working as
quickly as possible to resolve these cases, and we are keenly aware of
the urgency for claimants who are ill, and in many cases, very elderly.
A number of claimants' comments stated that they believe the burden
of presenting employment and exposure records rests solely on
claimants. However, OWCP and NIOSH systematically gather employment and
exposure information from DOE, the Former Worker Medical Screening
programs, contractors who employed covered employees, the Social
Security Administration, and many other sources. Thus, the vast
majority of information used by NIOSH in creating a dose reconstruction
is obtained from sources other than claimants. Similarly, most of the
employment documentation used by OWCP in determining covered employment
is obtained by OWCP from sources other than claimants, and we have
created a database called ``site exposure matrices'' to assist claims
examiners in determining the types of chemicals and toxic substances
that existed at the major DOE facilities. These databases also help
DEEOIC claims professionals assess relationships between potential
exposures and a claimed illness. In addition, DEEOIC has added
industrial hygienists and a toxicologist to its National Office staff
to assist in exposure evaluation. It should be noted that no Part E
claim was denied based on inadequate evidence of toxic exposure during
2005.
DOL PERFORMANCE GOALS AND OUTCOMES
The Labor Department is committed to the accomplishment of
measurable outcomes and to holding ourselves accountable for achieving
the fundamental goals of all the programs we administer. With respect
to Part B of the EEOICPA, the DEEOIC established high performance
standards focused on moving claims rapidly through the initial and
secondary adjudication stages. Our Government Performance Results Act
(GPRA) goals, even for the first full year (FY 2002), were challenging
in light of the large number of first year claims and program start-up
activities.
Our goal for initial processing was to make initial decisions in 75
percent of the cases within 120 days for cases from DOE facilities and
from RECA claims, and within 180 days for Atomic Weapons Employer,
beryllium vendor, and subcontractor cases (for which employment and
other critical information is generally more difficult to obtain).
Because we had received nearly 30,000 cases when our authority under
Part B commenced on July 31, 2001, we knew in advance we would not meet
those goals, which were conceptualized in terms of a normal, steady-
state flow of incoming claims. However, establishing rigorous
performance goals signaled to our own staff and to those potentially
eligible for benefits that we were committed to efficiently processing
claims. In fact, we took timely initial actions (either recommended
decisions or referral to NIOSH for dose reconstruction) in about 48
percent of the cases during that first full year of operation (FY
2002), despite the backlog of cases from the previous year. The smaller
number of final decisions completed in FY 2002 met our GPRA timeliness
goals in 76 percent of cases.
During FY 2003, the DOL program was able to eliminate the initial
backlog of claims, leaving only a working inventory of about two to
three months' incoming claims pending in our district offices. At the
same time, and despite making decisions on many older cases as we
cleared the backlog, the program was able to exceed its GPRA timeliness
goals. Our district offices issued initial decisions within the target
timeframe in 79 percent of all cases processed, in excess of the 75
percent goal. Our Final Adjudication Branch issued 77 percent of its
final decisions within the program standards, also in excess of a goal
of 75 percent.
During FY 2004, we continued to improve on these results, exceeding
our GPRA standards on all counts and driving down the average times to
complete each phase of the different types of Part B claims. For
example, the average time to complete an initial decision for cases
from DOE facilities has been reduced from 98 to 73 days, and the
average for cases from all other facilities and subcontractors is down
from 123 to 99 days.
During implementation of Part E during FY 2005 our district offices
continued to adjudicate Part B claims timely in 81 percent of the
cases, exceeding the 80 percent goal. The Final Adjudication Branch
issued 95 percent of its final decisions timely, well in excess of the
80 percent goal.
Accomplishment of these goals took the persistent, case-by-case
effort of the entire staff, as well as the continuing support of our
Solicitor's Office. Close and frequent coordination with HHS allowed us
to move cases smoothly and efficiently to NIOSH when dose
reconstruction is needed. In addition, DOL and DOE worked cooperatively
to improve the employment verification process and reduce the average
time for completion of DOE verifications from nearly 90 days at the
beginning of FY 2003 to a current average of less than 45 days. These
cooperative measures were instrumental in reducing Part B processing
times.
The number of requests for administrative review has been
relatively low, and only three Part B cases have been appealed in
Federal district court, suggesting that the new program has reached a
level of accuracy that builds credibility for its decisions.
With respect to Part E, as previously noted, DOL exceeded its FY
2005 GPRA goal for this Part by issuing more than 1,500 payments during
the first 10 months following enactment. Cognizant of the long wait
experienced by those who filed originally with the DOE Part D program,
our GPRA goal for FY 2006 is to complete initial processing for at
least 75% of the more than 25,000 cases transferred from DOE.
NIOSH projected that by the end of FY 2006 most of the backlog of
cases pending for dose reconstruction would be finalized and returned
to DOL as well. Largely for these two reasons, we projected a major
bulge (an increase of nearly $1 billion) in EEOICPA payouts for FY
2006. We anticipate receiving a stable stream of new claims in FY 2006
and FY 2007 (approximately 10,000 under each Part); but, whereas many
payments are expected to result in FY 2006 from the backlog clearance
efforts both with respect to the old Part D claims and the cases
pending at NIOSH, that volume was projected to decline in FY 2007,
resulting in total payouts that will substantially exceed the FY 2005
experience, but will be much lower than FY 2006.
The estimated decrease in Part B benefits from FY 2006 to FY 2007
is not based on any projection of reductions or limitations in the
number of additions to the Special Exposure Cohort. The budget impact
of the Special Exposure Cohort process is not readily predictable
because too many factors are unknown, e.g., which petitions will be
successful, how many employees are involved, what new petitions will be
forthcoming, etc. Since the compensation benefits are mandatory
funding, if additions to the Special Exposure Cohort were greater than
anticipated, benefits would still be paid regardless of the projections
presented in the President's Budget.
In summary, I am pleased to report that all aspects of the EEOICPA,
both Part B and E, are fully operational, and we anticipate
accomplishing our challenging performance goals for both programs in FY
2006. We believe we have established a credible program and forged
effective working relationships with our participating agencies--DOE,
HHS and DOJ, as well as DOE contractors and labor unions. Between FY
2001 and FY 2006, DOL implemented two brand-new compensation programs
with widely divergent benefit schemes. We promulgated new regulations,
formalized procedures, hired and trained nearly 500 Federal employees
nationwide, and administered benefit disbursement in accord with
congressionally mandated criteria. We are confident that we will be
able to rise to the challenge of resolving the remaining backlog of
Part E cases, and, working with NIOSH, to similarly resolve the dose
reconstruction backlog. Every member of the DEEOIC staff is keenly
aware that many workers have been waiting many years for compensation
and we are doing our best to serve them.
Thank you for the opportunity to describe our efforts in
implementing EEOICPA. I would be pleased to answer any questions the
Subcommittee may have.
Mr. Hostettler. Thank you, Mr. Hallmark.
Dr. Howard.
TESTIMONY OF JOHN HOWARD, M.D., M.P.H., DIRECTOR, NATIONAL
INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, CENTERS FOR
DISEASE CONTROL AND PREVENTION, U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Dr. Howard. Thank you, Mr. Chairman, and Members of the
Subcommittee. I'm pleased to appear before you today to talk
about the HHS activities.
In 2002, HHS promulgated two regulations on the same day,
one a dose reconstruction regulation and the other to assist
the Department of Labor in determining probability of
causation. In 2004, HHS promulgated a third regulation on the
special exposure cohort petition and petition evaluation
processes.
NIOSH began developing a dose reconstruction program in the
summer of 2001, establishing a robust scientific foundation as
the basis for our program. We've hired two contractors to
assist us with that activity. The first contract was awarded in
2003 to the Oak Ridge Associated Universities, and the second
was awarded in 2005 to Battelle Science and Technology
International. Of the 21,123 cases that we have received from
the Department of Labor for dose reconstruction, we have
returned to DOL as completed cases 13,813 or 65 percent of our
program's caseload.
In addition to processing individual dose reconstructions,
we've also been actively working on evaluating special exposure
cohort petitions. Since HHS promulgated our role in 2004, we've
received a total of 55 submissions for adding classes to the
SEC. Of those, 26 did not qualify for evaluation, 14 are in the
stage of being qualified, six have qualified as petitions and
are being evaluated now, and nine were approved for addition to
the SEC representing six classes of employees at four sites.
Five of these six classes were initiated by petitions by former
employees, survivors, or their representatives. One class,
however, Linde Ceramics Plant, was added because NIOSH, on its
own initiative, determined that data to estimate radiation
doses with sufficient accuracy was not available for a
specified time period.
To date, 20 submissions have been closed because they did
not qualify. Some of these petitions were withdrawn by the
applicants. Some lacked appropriate evidence despite
substantial assistance from NIOSH, and some requested the
addition of classes that were already statutorily included in
the congressional cohort.
Finally, the President charged HHS with administering a new
Federal Advisory Committee, the Advisory Board on Radiation and
Worker Health, to advise the Secretary of HHS. The Board is
chaired by Dr. Paul Ziemer, an internationally-recognized
health physicist, and consists of 12 distinguished members, one
who is present here today, representing scientists, physicians,
and representative workers, a membership which reflects the
act's requirement that the Board include a balance of
scientific medical and worker perspectives.
Since the Board first met in January 2002, Board members
have met a total of 46 times in work groups, Subcommittees, or
as the full Board. The Board made recommendation to the
Secretary for the addition of all of the six SEC classes that
have been added thus far. A technical support contractor was
secured in 2003 to address the Board's request for assistance
in better managing its workload. Many of the review comments of
this contractor have been extremely constructive to us and to
the Board and very useful in making sure that we have rigorous
scientific peer review of our work.
Thank you, Mr. Chairman. I would be happy to answer any
questions you have.
[The prepared statement of Dr. Howard follows:]
Prepared Statement of John Howard
Mr. Chairman and Members of the Subcommittee, my name is John
Howard and I am director of the National Institute for Occupational
Safety and Health (NIOSH), part of the Centers for Disease Control and
Prevention (CDC) within the Department of Health and Human Services
(HHS). I am joined today by Mr. Larry Elliott, Director of the NIOSH
Office of Compensation Analysis and Support, and Dr. Lewis Wade, Senior
Science Advisor at NIOSH. I am pleased to appear before you today to
provide testimony on the status of HHS activities under the Energy
Employees Occupational Illness Compensation Program Act of 2000 (``the
Act'').
I will describe and summarize the progress of the HHS
responsibilities under the Act, delegated by the President under
Executive Order 13179 issued on December 7, 2000:
<bullet> Develop scientific guidelines for determining whether
a worker's cancer is related to the worker's occupational
exposure to radiation (``probability of causation'') and
methods to estimate worker exposure to radiation (``dose
reconstruction''),
<bullet> Use the dose reconstruction regulation to develop
estimates of radiation dose for workers who apply for
compensation,
<bullet> Establish a process by which classes of workers can
be considered for inclusion in the Special Exposure Cohort, and
<bullet> Provide support for the Advisory Board on Radiation
and Worker Health
regulations for dose reconstructions and cancer causation
HHS was charged with promulgating two regulations. One regulation
establishes methods for conducting radiation dose reconstructions for
cancer claimants (42 C.F.R. pt. 82). Dose reconstruction is a science-
based process for retrospectively estimating the amounts and types of
radiation doses incurred by a person. This effort included substantial
scientific work by NIOSH to develop specialized analytical methods and
tools needed to estimate the occupational radiation doses of nuclear
weapons workers.
The second HHS-promulgated regulation establishes guidelines by
which the Department of Labor (DOL) determines whether the cancer of an
employee is ``at least as likely as not' related to the radiation doses
estimated for that employee through a dose reconstruction (42 C.F.R.
pt. 81). This regulation is for determining the ``probability of
causation,'' which is the probability that a person's cancer was
related to radiation from employment at the specified facility,
required the further development of a scientific tool, the
``Interactive RadioEpidemiological Program'' (IREP). IREP is a computer
program that uses ``risk models'' for associating radiation doses with
risk information on different cancers. IREP estimates the probability
of disease causation specific to each employee's unique history of
exposures to different types and quantities of radiation during the
course of his or her employment. In the final development of this tool,
NIOSH collaborated with the National Cancer Institute, which had
created the initial paper version in the 1980s and was in the process
of updating it in response to an extensive scientific review by the
National Research Council.
In promulgating the two regulations, HHS invited and considered
comments of the public and the Presidentially-appointed Advisory Board
on Radiation and Worker Health (``the Board''). The Board reviewed and
advised HHS on both of these rules during the public comment and
supported the final rules, which were finalized on May 2, 2002. The
regulations are designed to provide efficiencies in dose reconstruction
efforts for purposes of arriving at timely decisions on compensation.
The regulations allow for new scientific findings and consensus to be
integrated after proper scientific consideration.
An example of this recently occurred when NIOSH published a Federal
Register Notice and provided an opportunity for the public to comment
on a proposed change in the process for selection of target organs used
in dose reconstructions for energy employees with lymphoma cancers.
This change was in response to an evaluation by NIOSH of current
scientific data on lymphoma, which revealed that the site of the
radiation injury can differ from the site of the tumor or cancer origin
documented in the medical files of a lymphoma cancer patient. On
February 15, 2006, NIOSH finalized the new process (for selecting the
dose reconstruction target organs for energy employees with lymphoma
cancers). The new process selects the organ that would have received
the highest radiation dose from among relevant, possibly irradiated
organs, as determined through the dose reconstruction process, when the
identity of the target organ is in question. This change is now being
used to complete dose reconstructions for lymphoma cases and may result
in DOL calculating a higher probability of causation determinations for
select lymphoma cases. NIOSH is also reviewing the dose reconstructions
for lymphoma cases that have already been completed and returned to
DOL. If the new process will result in DOL calculating a higher
probability of causation that will result in approval of a denied
case, a new dose reconstruction will be provided to the claimant and to
DOL.
DOSE RECONSTRUCTION PROGRAM
The second responsibility of HHS, delegated to NIOSH, is the
development and administration of a dose reconstruction program to
serve cancer claimants under the Act. This is the largest and most
challenging responsibility assigned to HHS. The production scale and
scientific complexity of the dose reconstruction program required by
the Act are significant compared to other Federal compensation programs
requiring dose reconstructions.
NIOSH began developing a dose reconstruction program in the summer
of 2001. In accordance with its responsibilities to date, NIOSH
established a broad scientific foundation, the cornerstones of which
are the radiation dose reconstruction methods and cancer risk models
for occupational radiation exposures. The scientific fields and
disciplines needed for dose reconstructions include mathematics; health
physics; bio-kinetic modeling; statistical treatment, analyses, and
testing; exposure assessment; and nuclear engineering. The development
and maintenance of the cancer risk models for this compensation program
require epidemiology; statistical treatment, analyses, and testing;
medical interpretation; and risk assessment modeling and communication.
To assist in conducting individual dose reconstructions, NIOSH
develops different kinds of informational documents and updates them as
necessary if more information is obtained.
Site Profile documents provide information on the radiation
protection practices of a facility. The six sections of a Site Profile
document are called Technical Basis Documents, and each address a
specific topic, such as a site description, occupational medical dose,
or occupational internal dose. Completion of individual dose
reconstructions may require all, none, or only certain sections of a
Site Profile document. As each Technical Basis Document is completed,
it is used to complete dose reconstructions and assure consistency.
We also develop Technical Information Bulletins, which provide
clarification on how a specific method can be used to complete a dose
reconstruction, on how the information in a Technical Basis Document or
Site Profile can be used to meet a specific need in the dose
reconstruction process, or on how to provide specific technical
information that supports or justifies the tables or information
included in a Technical Basis Document or Site Profile.
NIOSH also developed and implemented procedures for performing dose
reconstructions; developed a records and data management system; and
initiated numerous records retrieval efforts. NIOSH established and
coordinated efforts with DOL, the Department of Energy (DOE), and the
Defense Threat Reduction Agency in the Department of Defense.
NIOSH has two contractors to assist with the development of site
profile information and completion of dose reconstructions. The first
contract was awarded on October 12, 2003, to Oak Ridge Associated
Universities (ORAU). The contract involves personal interviews with the
claimants, retrieval and validation of individual monitoring data,
reconstruction of exposure conditions at various DOE and DOE contractor
facilities (site profile development), and the completion of individual
dose reconstructions. The second contract was awarded on October 12,
2005, to Battelle Science and Technology International (Battelle). The
contract involves the reconstruction of exposure conditions at various
Atomic Weapons Employer facilities and the completion of individual
dose reconstructions.
Following are the status and accomplishments of the dose
reconstruction program:
General Claim Information
<bullet> EEOICPA encompasses 362 covered sites. NIOSH has
received claims from 195 of those sites, over 100 of which have
five or fewer claims.
<bullet> Of the 362 covered sites, approximately 40 are DOE
sites and represent the majority of claims; more than 300 sites
are Atomic Weapons Employer sites (sites which processed or
produced material that emitted radiation and was used in the
production of atomic weapons, excluding uranium mining and
milling).
Dose Reconstructions
<bullet> Cases sent to NIOSH by DOL for dose reconstruction:
21,092
<bullet> Cases returned to DOL: 13,742 (65% of total 21,092)
The chart below illustrates NIOSH progress in monthly caseloads:
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Documents
<bullet> Developed 129 Technical Basis Documents, 40 Technical
Information Bulletins
<bullet> Developed 63 implementation procedures (45 ORAU
procedures and 18 OCAS procedures)
SPECIAL EXPOSURE COHORT
The next responsibilities of HHS are directly related to the dose
reconstruction program: defining the requirements for adding classes of
employees to the Special Exposure Cohort (``the Cohort'') and
developing a process for receiving, evaluating, and processing Cohort
submissions received.
Under the Act, claims for members of the Cohort who have any of 22
specified cancers designated by the Act would not require dose
reconstructions or a determination by DOL of probability of causation.
Congress included in the Cohort certain employees of three DOE
facilities, known as the gaseous diffusion plants, as well as employees
of a nuclear weapons test site in Amchitka, Alaska. In addition, the
President has authority, delegated to HHS, to designate additional
classes of employees to be members of the Cohort, subject to
Congressional review, if two tests are met:
(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.
On May 28, 2004, HHS promulgated a regulation to allow it to
implement this authority--Procedures for Designating Classes of
Employees as Members to the Special Exposure Cohort under EEOICPA (42
C.F.R. pt. 83). The guidelines used to evaluate the feasibility of
reconstructing doses for a proposed Cohort class are established in
this rule. It states that dose reconstructions can be performed with
sufficient accuracy if: ``NIOSH has established that it has access to
sufficient information to estimate the maximum radiation dose for every
type of cancer for which radiation doses are reconstructed, that could
have been incurred in plausible circumstances by any member of the
class or if NIOSH has established that it has access to sufficient
information to estimate the radiation doses of members of the class
more precisely than an estimate of the maximum radiation dose.''
The regulation provides for petitions in two circumstances. One
circumstance is when NIOSH has attempted to conduct a dose
reconstruction for a cancer claimant and finds that the dose
reconstruction cannot be completed because there is insufficient
information to estimate the radiation doses of the claimant with
sufficient accuracy. The second circumstance includes all other
possibilities. For example, a petition may be submitted representing a
class of employees whose members have yet to file claims under EEOICPA,
or even have yet to be diagnosed with cancer.
Once the Cohort regulation was promulgated, NIOSH was able to begin
considering petitions, working closely with petitioners to assist with
their Cohort submissions in order to qualify the submission as a
petition for evaluation. To qualify for evaluation, a submission must
contain sufficient information to establish that the radiation
exposures sustained by employees at a site were not monitored, either
through personal or area monitoring; or that such records have been
lost, falsified, or destroyed; or that there is no information
regarding monitoring, source, source term, or process from the site.
This information may be provided by documents, affidavits, reports from
a health physicist or other individual with expertise, or a government
report of a scientific or technical nature.
NIOSH uses a hierarchical approach to evaluate the types of
information available to reconstruct doses. The primary data used for
determining internal exposures are from personal monitoring data, such
as urinalysis, fecal samples, and whole body counting results. If these
are unavailable, the air monitoring data from breathing zone and area
monitoring is used to estimate the potential internal exposure. If
personal monitoring and area monitoring are unavailable, internal
exposure estimates can be made from modeling potential exposures from
the source term and process information. The source term is developed
from the quantity of the radioactive material(s) involved or the
exposure potential of the radiation generating device.
The same hierarchy is used for determining the external exposures
to the cancer site. Personal monitoring data from film badges or
thermal luminescent detectors are the primary data used for determining
external exposures to the cancer site. If there are no personal
monitoring data, exposure rate surveys and source term modeling can be
used to determine the potential external exposure. In addition to the
occupational external exposures from facility operations, occupational
medical exposures from routine X-ray examinations given to the energy
employee as a condition of employment are also included in the external
exposures. These exposures are estimated using technical information
relative to the type of X-ray equipment used at a point-in-time at the
facility. When all of the sources of data described above have been
determined to be unsuitable for establishing maximum plausible
radiation doses, it can be concluded that doses cannot be reconstructed
with sufficient accuracy.
Once a submission has qualified for evaluation, NIOSH evaluates the
petition based on the issues discussed above. A completed evaluation
report is sent to both the petitioners and the Board. The Board reviews
the petition and provides a recommendation to the Secretary of HHS on
the feasibility of conducting dose reconstructions for members of the
petitioning class. As required by the Act, the final step in the
petitioning process is an opportunity for Congress to review certain
designations by the Secretary of HHS. These decisions become effective
in 30 days, unless Congress provides otherwise.
Current Cohort Information
<bullet> Six classes of employees at four sites have been
added to the cohort. Three of these classes (Mallinckrodt
Chemical Company--Destrehan Street; Iowa Army Ammunition Plant;
and Y-12 Facility) were added due to petitions received from
former employees, survivors, or their authorized
representatives. One class, Linde Ceramics Plant, was added
because NIOSH determined that data to estimate radiation doses
with sufficient accuracy were not available for a specified
time period.
<bullet> NIOSH is currently evaluating six submissions and
will send completed evaluation reports to the petitioners and
the Board. These submissions are Pacific Proving Grounds, Y-12
(Oak Ridge), Rocky Flats Plant, Oak Ridge Institute for Nuclear
Studies, Ames Laboratory, and Chapman Valve.
<bullet> NIOSH notifies applicants of any requirements that
are not met by the submission and assists the applicants with
guidance through phone consultations and written communication
in developing necessary information. Currently, NIOSH is
providing such assistance to applicants involved with 11
submissions. It is not known which, if any, of these
submissions will ultimately qualify for evaluation as a Cohort
petition.
<bullet> To date, 20 submissions have failed to qualify for
evaluation as Cohort petitions, and have been closed. Some
submissions have been withdrawn by the applicants, and some
submissions requested the addition of classes of employees to
the Cohort that were already included in the statutory Cohort.
Other submissions lacked appropriate evidence despite
substantial assistance from NIOSH.
<bullet> On December 22, 2005, NIOSH published a notice in the
Federal Register requesting public review and comment on
proposed changes to the Cohort rule (42 C.F.R. pt. 83) to
address changes to the Act authorized by the National Defense
Authorization Act for Fiscal Year 2005 (codified as amended in
scattered sections of 42 U.S.C.). Comments on the interim final
Cohort ruled will be accepted until March 23, 2006.
ADVISORY BOARD ON RADIATION AND WORKER HEALTH
Finally, the President charged HHS with administering a new Federal
advisory committee, the Advisory Board on Radiation and Worker Health
(``the Board''), to advise the Secretary of HHS. Members are invited to
serve overlapping terms of up to four years, except that any member
appointed to fill a vacancy for an unexpired term shall be appointed
for the remainder of that term. HHS provides administrative services,
funds, facilities, staff, and other necessary support services.
HHS nominated and the President appointed the initial member of the
Board in 2001. The Board is chaired by Dr. Paul Ziemer, an
internationally recognized health physicist, and consists of 12 members
representing scientists, physicians, or representatives of nuclear
weapons workers--a membership which reflects the Act's requirements
that the Board include a balance of scientific, medical, and worker
perspectives.
Board Accomplishments
<bullet> Since the first Board meeting in January 2002, Board
members have met a total of 46 times in workgroups,
subcommittees, as the full Board. The most recent meeting
occurred this week.
<bullet> CDC secured a technical support contractor, Sanford
Cohen & Associates (SC&A), on October 10, 2003 to address the
Board's request for assistance in better managing its workload.
SC&A is currently assisting the Board with their work on dose
reconstruction reviews, site profile reviews, and the Cohort
petitioning process.
<bullet> The Board has reviewed 60 dose reconstructions and 21
procedures of the NIOSH program. The Board's review of dose
reconstruction procedures has been constructive. Many of the
review comments raised by the Board's contractor, SC&A, have
already been examined and changes for improvement have been
made or are underway. Other comments are being addressed with
feedback to the Board.
<bullet> The Board has made eight recommendations to the
Secretary of HHS.
SUMMARY
In conclusion, NIOSH has made much progress in carrying out the
responsibilities of HHS under EEOICPA and looks forward to continuing
to improve its performance to assist workers who have cancer as a
result of exposure to unique hazards in building the Nation's nuclear
defense.
Thank you again for the opportunity to testify. I'm happy to answer
any questions you may have.
Mr. Hostettler. Thank you, Dr. Howard.
Dr. Melius.
TESTIMONY OF JAMES MELIUS, M.D., DRPH, ADMINISTRATOR, NEW YORK
STATE LABORERS HEALTH AND SAFETY TRUST FUND, MEMBER OF THE
ADVISORY BOARD ON RADIATION AND WORKER HEALTH
Dr. Melius. Thank you for inviting me to speak today.
Although I will not be speaking on behalf of the Advisory
Board, I will be speaking as a member of that Advisory Board
and certainly can reflect the work of the Advisory Board that
Dr. Howard described, has done as part of this program.
In your opening statement and others, you pointed out the
problem for the many people that worked at these site, the
secrecy. They were not given complete information about what
they worked with. I think that's very important to understand.
These people, they did this work willingly. They understood the
importance of this program for their country, but now that that
has passed and now that there are compensation programs in
place for them and one that is well-justified by their
exposures as well as their sacrifices, I think it's very
important that we maintain a fair program, a transparent, open
program, that they feel that they are being treated fairly at
this point in time. And one of the things that we've worked
through the Advisory Board is to ensure that fairness and
openness--that people see what the reasons are and that we have
a sound and open process.
I am extremely concerned by some of the suggested changes.
That we would lose that openness, that we would lose that
perception of fairness, and therefore, lose the whole
credibility of this program.
As Dr. Howard has mentioned, the Advisory Board as
established under the act are 12 members. We have distinct
duties under the act that we need to carry out, and really in
order to do them, in order to do really the volume of work
required, we requested an outside contractor be hired to assist
us. We went to hire that contractor through an open procurement
process, a typical Government process, brought on Sanford,
Cohen and Associates, and I would share with Dr. Howard that
they have done an excellent job. They provide excellent and
outstanding technical and scientific review and really what we
would call in the scientific community peer review of the many
technical documents, the many scientific issues that we need to
deal with.
We also pay special attention to conflict of interest
issues, both for everyone involved in it, the contractor that
NIOSH has hired, but also for our own contractor (the Board's
contractor), and the members of the Board, and we put our
contractor through requirements that were much more stringent
for some of the other groups that were involved in working on
this program because we wanted to make sure that the claimants
were reassured that they were receiving fair and unbiased
review of their claims--that whoever was checking on them was
not being tainted by past work or past associations or
whatever, so take the extra step to make sure with that.
We've also used that contractor recently in reviewing the
special exposure cohort petitions, and NIOSH, as Dr. Howard
mentioned, produces a report. The Board then has to review
this, again a lot of technical information that has to be dealt
with in doing this, and it's taken time. We've paid a lot of
attention to this area to make sure that we are reaching
correct recommendations that were then passed on to the
Secretary of Health and Human Services, and our contractor
again played a critical role in helping us to do that, again an
open, transparent process. People petitioning for the special
cohort, exposure cohort, are allowed to speak and to present
their case and really to be part of all the proceedings that
take place for this.
After we have gained some experience recently in doing
this, especially particularly the initial eight special
exposure cohort petitions that we were reviewing, we have sort
of stepped back and we formed a small work group of the
Advisory Board. I chaired that Board, and we developed a set of
guidelines that we thought would improve the efficiency of the
review process as well as provide a fair assessment and one
that we could do in a way that would assure that from petition
to petition that we were providing the same type of criteria
for each petition. (We were treating everybody fairly.)
That report, I attached to my testimony. It's been made
public. We received comments from the public and we'll continue
to do so, again, what can we do to improve the process, make it
more efficient, but maintain the fairness and openness of this
process.
Recently the Office of Management and Budget have suggested
a number of changes to the program. You've listed those changes
in your opening remarks. I think it's important to realize that
we have a process in place that works. This is a process that
was envisioned in the act. It's open. It provides sound
technical peer review of these evaluations for special exposure
cohort consideration. We don't need to make changes in it. We
can improve it in some ways. The process really is good. It
provides a balanced scientific and technical review, and I
think to make the changes that have been suggested in the OMB
document would simply destroy the credibility of this program.
We can't have a secret review process underway.
Let me end my testimony there. I will be glad to answer
questions at the appropriate time.
[The prepared statement of Dr. Melius follows:]
Prepared Statement of James Melius
Thank you for the opportunity to testify here today before the
Subcommittee on Immigration. Border Security, and Claims regarding the
Energy Employees Occupational Illness Compensation Program Act
(EEOICPA). Over my past twenty-years of work in occupational and
environmental health, I have considerable experience evaluating
occupational illness issues at Department of Energy nuclear weapons
facilities while working for the National Institute for Occupational
Safety and Health and later as a member of various review and advisory
committees including the Advisory Board on Radiation and Worker Health
established under EEOICPA. I appreciate the Subcommittee's exercising
its oversight with regard to this important program.
I should note that I testify here today as a member of the Advisory
Board on Radiation and Worker Health but do not speak on behalf of the
Board. However, I can address the workings of the Board and its stated
positions on various issues relevant to this hearing.
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT
EEOCIPA was established to address the work-related cancers and
other illnesses suffered by the thousands of men and women who helped
build and maintain our nation's nuclear weapons starting during World
War II and continuing into the present time. Especially during the
early years of the program, these people worked under very difficult
conditions. They worked under very tight deadlines using new
manufacturing processes handling very dangerous materials, often with
minimal protection from exposure to dangerous radioactive elements.
They also worked under great secrecy, facing severe criminal penalties
for any breach of secrecy. Often they were given very minimal
information about the materials that they worked with and the potential
health consequences of their exposures.
I want to emphasize that these people worked under these conditions
willingly, knowing the critical importance of their work to our
nation's security. However, many of these people and their families are
now angry that this past secrecy and those difficult working conditions
have not been acknowledged and have been used to deny their past claims
for work-related illnesses. The credibility of the EEOICPA program to
these people is very dependent on the fairness and transparency of the
program's procedures.
As a consequence of this work, these workers are at increased risk
of developing cancer and other occupational illnesses. Because
information on the exposures and the consequent health risks were
hidden from these workers for so many years, Congress established the
Energy Employees Occupational Illness Program in 2000 to provide some
compensation to these workers and their survivors for their work-
related health problems. In doing so, Congress recognized that
attempting to provide fair and equitable compensation for people
working at these facilities for the past 50 years or more was difficult
and, in many cases, would not fully compensate these people or their
families for their suffering and sacrifice for our country.
The part of the Act under consideration at this hearing involves
compensation for people with work-related cancer due to radiation
exposures. The program as established in EEOICPA and implemented
through the Department of Labor and the National Institute for
Occupational Safety and Health (NIOSH) attempts to evaluate the past
radiation exposures for the claimants at nuclear weapons facilities and
then calculates the probability that their cancer was caused by
exposures at the facility(s).
NIOSH's major task under this part of EEOICPA is to obtain past
monitoring records for the claimant along with other technical
information on the facility(s) where they worked that would help to
estimate the claimant's exposure. NIOSH then utilizes this information
to estimate the cumulative radiation exposure for that individual. This
is a complex task requiring review of many different sources of records
and other information. A claimant may have had exposure to many
different radioactive elements and have been exposed in many different
manners. The monitoring records may extend back over 50 years and
reflect time periods when monitoring methods were less precise than
today. NIOSH has had to develop new procedures and correction factors
to appropriately estimate these past exposures.
If a ``reasonable'' estimate of a claimant's exposure can be made,
the probability that a claimant's cancer was due to this exposure is
estimated. This procedure (established by the EEOICPA) utilizes a
mathematical model developed by the National Cancer Institute and
modified by NIOSH for use in this compensation program. The model is
based on cancer studies of people exposed to radiation whose health
status was traced for many years (mainly those exposed from the atomic
weapon explosions in Japan during World War II). The procedure
established under EEOICPA takes into account the risk that the
claimant's particular cancer could be caused by their radiation
exposures as well as the precision of that estimate (i.e., the possible
error in the estimate due to the limitations of the health and exposure
data). NIOSH then provides these data to the Department of Labor who
performs the final calculations for the purposes of accepting or
denying the cancer claim.
SPECIAL EXPOSURE COHORT
In establishing this program, Congress recognized that there would
be circumstances where dose reconstruction would not be feasible due to
the lack of adequate information on the claimant's exposure at the
nuclear weapons facilities. Exposure records may not be available. The
claimant may not have had their exposure to a particular radioactive
material monitored during that time period. A method for measuring that
particular exposure may not have been available at that time. Rather
than requiring the claimant to somehow prove that they had sufficient
exposures to warrant compensation (an almost impossible task given the
length of time involved and the secrecy in place at the facilities),
Congress established the Special Exposure Cohort.
The Special Exposure Cohort provides compensation for claimants
with 22 specified cancers who worked at certain facilities for a
specified length of time. Congress established four such groups in the
legislation and gave the Department of Health and Human Services the
power to add additional groups. Individuals or groups representing
claimants or potential claimants can petition NIOSH requesting that a
specific group be added to the Special Exposure Cohort. If the petition
is deemed valid by NIOSH, NIOSH then evaluates the merits of the
petition and presents a report to the Advisory Board regarding the
merits of adding the group to the Special Exposure Cohort. The Act
provides that a new group may be added to the Special Exposure Cohort
when the ``it is not feasible to estimate the dose that they received
with sufficient accuracy'' and if their health was endangered as a
result of their exposures. The Board then reviews the NIOSH evaluation
report and makes an independent recommendation to the Secretary of HHS
regarding the petition.
ADVISORY BOARD ON RADIATION AND WORKER HEALTH
The Advisory Board on Radiation and Worker Health was established
under EEOICPA to review the regulations establishing the methods to be
used in the dose reconstruction effort and Special Exposure Cohort
evaluations; to review the scientific validity and quality of the dose
reconstruction effort; and to review the additional groups proposed for
inclusion in the Special Exposure Cohort (described above). The Board
is required to represent ``a balance of scientific, medical, and worker
perspectives''.
The Board is appointed by the President. The Board has had up to
thirteen members. One resigned due to a conflict of interest, and
another died. Recently, two members were dismissed from the Board, and
three new members were added. The current Board represents diverse view
points including people who formerly worked for the Department of
Energy or their nuclear facility contractors as well as union
representatives from DOE nuclear facilities. This balance of diverse
perspectives helps to ensure that the Board's deliberations are
thorough and that different views on issues are discussed.
The Board meets approximately four or five times per year with most
meetings lasting three days. Public meetings by conference call take
place between meetings. In addition, work groups set up by the Board
also meet by phone or in person between meetings. Most of these work
group meetings are open to parties involved in the facility under
consideration. Transcripts of these Work Group meetings are also made
and posted on the NIOSH OCAS website.
Given the considerable workload required by the Act to review the
dose reconstruction program, the Advisory Board has obtained the
services of a technical contractor (Sanford Cohen and Associates) to
assist in the technical review of dose reconstructions, related
technical procedure documents, and the special cohort evaluation
technical documents. This contractor was selected through a full and
open government procurement process. The contractor provides a number
of highly qualified technical specialists to assist the Board and has
greatly facilitated the work of the Board.
Working with the contractor, the Board has established a program
for reviewing dose reconstructions for a sample of individual claims
and the NIOSH procedures and developed technical documents that provide
the basis for NIOSH's dose reconstruction program. The Board's
contractor conducts its review under the direction of the Board and the
contractor's technical review is presented to the Board for discussion
before being finalized and transmitted to the Secretary of HHS. The
procedures used by the contractor for its audit were established and
approved by the Board. After the initial review of cases, procedures,
and/or documents by the contractor, the Board has established a
standard process to ensure that NIOSH has the opportunity to review and
comment on the contractor's review before the Board finalizes our
comments to the Secretary. The review covers a wide range of technical
issues related to individual dose reconstruction to ensure that the
dose reconstructions are being done in a scientifically sound and
balanced manner.
The Board has paid special attention to issues of potential
conflict of interest among all groups working on this program. Given
the concern of the people who worked at these facilities about ensuring
that the compensation program is handled in a fair and impartial
manner, strong conflict of interest provisions are necessary to ensure
the credibility of the program. In selecting a contractor for assisting
the Board, specific conflict of interest requirements were included in
the review and operation of this contract. Conflict of interest
information for our contractor and for Board members are available to
the public through the NIOSH website for this program.
THE ADVISORY BOARD AND SPECIAL EXPOSURE COHORT REVIEWS
The Advisory Board has reviewed approximately 8 new special
exposure cohort groups (NIOSH has sometimes combined petitions or split
proposed groups into different time periods). Seven have been approved,
and one denied by the Board. Several are pending including one that was
reviewed at a recent Board meeting and then deferred pending the
receipt of further information from NIOSH (Pacific Proving Ground).
All of these petitions have involved the early years of nuclear
weapons production when monitoring data were sparse. In some cases,
NIOSH's recommendation has been followed, while in others the Board's
recommendation has differed from that of NIOSH. In some cases, the
discussion of the petition has stretched over several Board meetings.
In nearly, all cases the Board's vote on our recommendation has been
close to unanimous despite the diversity of viewpoints on the Board.
The Board has worked with NIOSH to establish a sound and thorough
independent technical and scientific review of the NIOSH evaluation of
the special exposure cohort petition. I believe that this is what is
envisioned under EEOICPA. The Board's contractor has done substantial
work to review relevant scientific and technical documents and data,
and there has been a thorough discussion of the scientific issues at
the meetings. The petitioners have had good access to the review
process and a fair opportunity to provide their input.
Recently, the Board has worked with NIOSH to improve the process.
Late last year, the Board established a working group of four Board
members that I chaired to review our procedures for evaluating Special
Exposure Cohort petitions and evaluations. The Working Group held a
meeting in November 2005 with NIOSH staff participating to develop
draft guidelines for our review. Draft guidelines were developed, and
this document was reviewed by other Board members and by NIOSH and made
available to the public for review and comment. After some revisions
based on comments from Board members, the draft guidelines were
discussed at our January Board meeting. The Board voted to adopt the
guidelines with the understanding that they could be modified at a
later time based on additional comments received from outside parties.
I have attached a copy of the guidelines with my testimony.
These guidelines provide a framework for the Board's review of
Special Exposure Cohort petitions and NIOSH's evaluation of those
petitions. The guidelines provide general criteria for evaluating
information that might be used for dose reconstruction to determine
whether or not that information provides a basis for adequate dose
reconstruction (i.e., ``feasible to estimate the dose that they
received with sufficient accuracy''). The Board believes that the
guidelines will help to make the Special Exposure Cohort process more
efficient, more timely, and provide a fair process for all groups
seeking that status. The Advisory Board has also established a specific
role for our contractor to assist in the review of Special Exposure
Cohort actions.
My understanding is that the Department of Labor and the Office of
Management and Budget have suggested some actions to address a
perception that the current Special Exposure Cohort process is not
working adequately. On the contrary, I believe that the current
procedures provide what was called for in the EEOICPA legislation.
First, the process is open to the public and to input from the public.
Failure to ensure this level of transparency would severely damage the
credibility of the program. Secondly, the process provides for sound
scientific and technical review of any SEC recommendation by an
independent advisory board with the assistance of a contractor with
relevant scientific and technical expertise. This review process is
similar to the scientific peer review programs in place for other
government programs that are based on scientific and technical
information. Thirdly, the recent changes to the process in accordance
with the working group report should help to facilitate a more timely
review process and, at the same, time one that ensures consistency and
fairness in SEC recommendations.
In summary, I believe that the Advisory Board with the assistance
of our technical contractor is providing sound and fair independent
reviews of groups proposed for inclusion in the Special Exposure Cohort
as required by the EEOICPA legislation. I would be glad to answer any
questions that you may have.
Mr. Hostettler. Thank you, Dr. Melius.
Mr. Miller.
TESTIMONY OF RICHARD D. MILLER, SENIOR POLICY ANALYST,
GOVERNMENT ACCOUNTABILITY PROJECT
Mr. Miller. Thank you, Mr. Chairman.
My name is Richard Miller. I'm a Senior Policy Analyst for
the Government Accountability Project. Among its functions, GAP
oversees agencies implementing the Energy Employees
Compensation Program and serves as an information hub for
claimants, Congress, and the media. I have been privileged to
work on the bipartisan effort that led to the enactment of this
landmark legislation in 2000, which included testifying before
this Subcommittee in September of 2000. We appreciate the
opportunity to testify again before the Subcommittee and
commend the Chairman of the Subcommittee for using the
Committee's jurisdiction to conduct oversight hearings.
Congressional investigations an numerous oversight reports
have documented that radiation dose records of the Department
of Energy and its vendors were, as you have stated earlier,
nonexistent, incomplete, or unreliable. My written statement
lists three examples in Nevada, Iowa, and Kentucky, but there
are many more. In cases where there is inadequate monitoring,
Congress wanted to ensure that nuclear weapons workers with
cancer would not face an insurmountable burden of proof when
they filed a claim. Congress put in place a relief valve that
when it is not feasible to estimate dose with sufficient
accuracy and there is a reasonable likelihood that the class of
workers may have been endangered from radiation exposure. They
have a remedy, and that is to be designated as a member of the
special exposure cohort.
There is a four-step process for evaluating these special
exposure cohorts --with built-in checks and balances to ensure
that all viewpoints are heard and that each SEC designation is
scientifically credible. The Secretary of HHS, as you have
heard, makes the final decision after receiving a
recommendation from the Advisory Board.
While there are six special exposure cohorts that have been
approved to date, HHS has denied two and disqualified nearly 20
at its earliest stages of review, and the inference in the OMB
pass-back document that these are being handed out like candy
simply is not supported by the record. We have seen in
particular well-merited approvals at Mallinckrodt in St. Louis,
at the Iowa Army Ammunition Plant in Burlington, Iowa, at Linde
in Tonowanda, New York, and for the Y-12 Calutron workers in
Oak Ridge, Tennessee.
Today my testimony will primarily focus on the pass-back
memo which outlines five options to reduce the number of SECs
approved by the Secretary of HHS in order to, quote, contain
the growth in benefit costs. OMB has proposed four actions in a
document which, I note, was not included in the President's
budget request. That came to light independently and
separately, which if adopted constitute a direct attack on the
checks and balances set forth in the law: One, by requiring the
Secretary to secure through the Administration or White House-
led task force before making any approvals; by addressing this
so-called, ``imbalance,'' in the Advisory Board; by adding yet
another outside review on top of the Advisory Board's review;
and by imposing unspecified constraints, quote-unquote, on the
Advisory Board's audit contractor.
These administrative changes if implemented in whole or in
part will undermine the credibility of benefit determinations.
By requiring Administration clearance, the OMB memo implies a
lack of trust in the Secretary of HHS's decisions.
Administration clearance--and I want to be very clear on this
point. Administration clearance is not merely an innocent call
for improved communications as we have heard from OMB and other
witnesses here today. This is not about drawing sharper
boundaries about SECs in order to more precisely adjudicate
claims. It is a plan for preempting the legal authority and the
professional judgment of the Secretary and the Advisory Board.
The term ``imbalance'' and ``constraints'' that are discussed
in this OMB memo must be defined. Frankly, the memo committed
the error of candor by using those words.
It appears that the OMB considers the advice provided by
the President's Advisory Board and even perhaps its audit
contractor as not trustworthy and that absent Administration
intervention, unwarranted benefits are going to be paid out
through special exposure cohorts, and yet, as we have heard,
the Advisory Board is required by law to have a balance of
medical, scientific, and worker perspectives and as well there
has to be a balance proscribed under the Federal Advisory
Committee Act.
It's with that in mind that we note that two members of the
Advisory Board were removed without cause in January of 2006,
and three members were appointed, including two with potential
conflicts of interest. That too is troubling.
Given the OMB's goal of reducing special group cohort
approvals as a way to cut benefit costs, the call to address
any imbalances in the Advisory Board looks like a prescription
to add new Board members with a philosophical tilt against
special cohorts. Indeed, the Office of Management and Budget
memo commends the Employment Standards Administration within
the Labor Department for bringing concerns about SEC benefits
costs to the attention of OMB. DOL's fingerprints on this OMB
memo has regrettably stained its reputation as a dispassionate
claims adjudicator.
The Energy Employee Compensation Act was an apology for
putting defense nuclear workers in harm's way and not
adequately protecting them, and in turn these workers expect
that the Government will honor its commitment to provide fair
compensation decisions. Yet this OMB memo suggests that they,
the Administration, are intent on dishonoring this commitment.
It rubs salt in the wounds of these patriotic Cold War workers
to hear that the goal is to constrain benefit costs.
There are six new special exposure cohort petitions
currently under evaluation, and this pass-back memo hangs
ominously over these and future SEC evaluations. If HHS is
directed to deny SECs as a way to reduce benefits costs, even
though there are inadequate records to make a fair compensation
decision, then these workers and their families have every
reason to be cynical.
In conclusion, unless the OMB's options outlined in this
pass-back memo are disavowed at the highest levels of the
Administration, these Cold War veterans can justifiably
question whether each SEC denial is a product of OMB budget-
cutting and political meddling rather than a scientifically-
credible decision. It is imperative that we restore the
program's credibility.
I thank you for your time.
[The prepared statement of Mr. Miller follows:]
Prepared Statement of Richard D. Miller
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Hostettler. Thank you, Mr. Miller.
At this time, we will move to questions from the
Subcommittee.
First of all, Mr. Hallmark, I'd like to ask you about the
issue of balance. Do you believe that the Advisory Board is
unbalanced? According to the OMB memo, there is a desire for
there to be balance on the Advisory Board, and what type of
balance would be required to assist in what the OMB seems to
say should be the mission of containing costs for the program?
Mr. Hallmark. Well, Mr. Chairman, as I said, cost
containment is not part of any strategy or involvement that the
Department of Labor has had in this process. I would say,
however, that the Board is a balanced FACA committee in the
sense that it's representing different groups involved in the
activity; however, from our perspective, we have seen
indications, especially in terms of the presentations of the
Board's contractor, of a not complete adherence to the
instructions given by Congress to the Board, that is, that the
Congress gave the Board the responsibility to evaluate the
``scientific validity and quality'' of dose reconstruction
activities.
It appears from our hearing and reading of the activities
of the Board and the contractor that the criterion has been
shifted to be one of ``can dose reconstructions become more
overestimated than they started out to be.'' To back up a
little bit, the statute rightly and NIOSH I think correctly
makes every effort to give the benefit of the doubt to the
worker and to provide where estimation ranges are open, to
provide as much overestimation as is appropriate to make sure
that the individual is getting a fair shake and that obstacles
are removed. That's the baseline.
The discussion that has occurred in the Board and
especially from the contractor has been almost exclusively
focused on whether or not further examples or further additions
of overestimation can be added to that process. There has been
almost no discussion about whether any of the dose
reconstructions under review are, in fact, overestimates beyond
plausibility that yield an outcome that is not what was
intended by Congress.
That's the balance issue that I would say needs to be
addressed with respect to the Board.
Mr. Hostettler. I appreciate the fact that you point out
that cost containment was not something that the law called for
and that DOL does not recognize that, but it's my understanding
that the pass-back memo actually commends a DOL employee for
potentially large expansion of the benefits due to special
exposure cohorts. Who at the Department at Labor would have
suggested the impetus for the OMB pass-back memo regarding the
expansion of benefits and the cost containment? Because either
the Department of Labor was not thinking about that issue or
they were asked by OMB, but somehow OMB took what DOL gave them
and created a discussion memo talking about containing costs.
Who at DOL gave that input to OMB?
Mr. Hallmark. Well, I am the face of DOL with regard to
this program with respect to the interfaces with NIOSH, the
Department of Energy, OMB, and others. So if there's a party
who is involved in those kind of discussions, and as I said,
the Department of Labor believes close coordination and
discussion is appropriate in this multi-department entity and
we have pursued that. It wouldn't be appropriate for me to
discuss the internal discussions about budget, which are always
outside of the general discussion, but that's part of my role.
Mr. Hostettler. All right. Thank you.
Dr. Howard, what do you make of the five options that are
listed in the OMB document? OMD's suggestion that, first of
all, the SEC, special exposure cohort, designation should be
okayed by the Administration as opposed to the Secretary of HHS
would tend to inform us that somebody at OMB or the
Administration does not trust the Secretary to make this
determination. I don't want to put words in your mouth, but
that's kind of what it looks like at its surface.
Is there some reason for us to believe that?
Dr. Howard. I don't think so, Mr. Chairman. We're very
proud of our Secretary, Secretary Michael Leavitt, and he does
an excellent job with understanding our program and receiving
our information that comes to us through this process that we
start out with the petitioner, our evaluation, the Board
presentation, the Board deliberation, their contractor's
review, their vote, and finally it goes through me to the
Secretary.
I think it's fair to say that in terms of the balances
issue, one could say that balance, like beauty, is sometimes in
the eye of the beholder, and we try very hard at NIOSH as the
primary source to receive nominations that eventually work
their way through our department to the White House that makes
the final decision about individuals. That's an open process.
We invite anyone who has a nominee that fits in to these three
categories that are statutorily based--the medical, scientific,
and worker perspectives--invite them to give us those names and
to vet them and bring them through the process.
So we think, as Dr. Melius mentioned, even to the point of
nomination of members to the Board, we want to be as
transparent as possible.
Despite having those folks in those capacities, when you
get on Board, as we all are, we're biased in various ways, and
I think Mr. Miller referred to conflict of interest issues.
We're trying to have the state-of-the-art conflict of interest
for us, for our contractors, for the Board members. So we hope
that despite whatever biases members bring to the Board, that
they work hard on these very difficult scientific issues, and
for the last 4 years that I've been in this program, I really
have to applaud each of them for doing that. They spend
countless hours going through extremely technical material, and
I think they are personally very assiduously aware of their own
biases and controlling that and looking at the science.
So I would say that we're trying very hard to achieve
balance in every way possible.
Mr. Hostettler. Have you been informed, has NIOSH or the
department been informed, in general of this notion of a two-
track approval of SEC designation?
Dr. Howard. Well, we are aware of that language. I would
just say from the transactional process point of view, we have
some very stringent statutory time lines that we honor, we try
to honor in every way possible. We're not perfect in that, but
we certainly try very hard. I don't see how there is room time-
wise for any other kind of review, even if such a review was
thought to be in the best interest of the Government. It's a
very tight process. So I don't see how it's practicable.
Mr. Hostettler. Thank you. I agree, Dr. Howard.
Then one more question. My clock hasn't been up, and so we
will officially designate my time as 5 minutes.
Dr. Melius, you referred to the OMB document as creating
changes in the program, and do you believe that the document
actually creates substantive changes in the program if the
document is enforced, executed, if the provisions of the
document are enforced?
Dr. Melius. It certainly would, because it would change the
whole process of the program, would make large parts of the
process closed because it would be done within the
Administration, not as part of an open review process, and as
well as--you know, again, it's hard to tell what's meant by
balance of the Board, but one would then also change the Board.
So the whole workings of the program be changed, but
particularly the lack of transparency to the process for what I
see to be very little gain. I mean, we have I think a strong
peer review. We continue to work to make it stronger, a
scientific review. As I said, we have an excellent contractor
as well as Board members, and I think it's important to clarify
our contractor doesn't tell us what to do. We tell the
contractor what to do.
The reviews that they do are under our direction. The
reports that are submitted to the Secretary and the final
recommendations are made by the Board members, not by our
contractor. We asked our contractor to look at issues such as
the benefit of the doubt or claimant favorability. That was one
of the criteria they are supposed to look at in doing the
reviews. So we have in essence tried to have a full and open
review process, and I think the proposed changes would just
change that so drastically. As I said in my testimony, I think
it would very seriously undermine the whole credibility of the
program, which is critical.
Mr. Hostettler. Thank you, Dr. Melius.
The Chair recognizes the gentlelady from the Texas, Ms.
Jackson, for questions.
Ms. Jackson Lee. Thank you again, Mr. Chairman, and again I
offer my appreciation.
Let me say to the witnesses that I found your testimony to
a one very instructive. Forgive me if I have to leave after
this first line of questioning inasmuch as another Committee
will be having a classified briefing in a few minutes, and so I
will have to depart. I know that we'll have a follow-up meeting
and hearing where other officials will provide information as
well.
Let me ask, Mr. Hallmark, is the Department of Labor
attempting to cut the benefits of these potential victims?
Mr. Hallmark. No, we are not. As I said in my comments
earlier, Ms. Jackson Lee, the department's interest is to make
sure that the program is, in fact, fair and consistent. The
benefits that we pay are mandatory entitlement benefits. They
are adjudicated case by case, and the Treasury fills our
funding to make sure that the moneys are there to pay whatever
cases we approve.
We're not in business of trying to change the outcome in
that respect, nor do we have particular views of a particular
class being included or not included as an SEC.
Ms. Jackson Lee. In the course of attempting to, and I put
this in quotes, fix the Advisory Board or fix the problem, did
OMB engage the Department of Labor in your assessment of the
program or your assessment of their potential changes? Did you
have discussions with OMB?
Mr. Hallmark. As I said earlier, the discussions within the
realm of putting together the President's budget are not open
to the public, obviously, but we do talk about costs and
streams of benefits and projections and so on as a normal
discussion that goes on back and forth between Federal agencies
and OMB each year.
Ms. Jackson Lee. Well, would you have made recommendations
for this program to be cut?
Mr. Hallmark. No. Are you referring, perhaps, to the
projections in the 2007 budget?
Ms. Jackson Lee. I am and the fact that the program is
perceived as being costly and that some of the procedural
changes that OMB may be offering go more to saving money than
to the substance of the program. So in the course of having to
report on your budget, would DOL have inadvertently recommended
that this program be cut?
Mr. Hallmark. No, not at all.
Ms. Jackson Lee. Inadvertently or advertently.
Mr. Hallmark. No. I don't think that happened at all. The
issue is with respect to projected budget outlays that are in
the President's 2007 budget. These are estimates that we make
based on our experience with the program to date and our
understanding of the flow of cases through the pipeline. There
is a reduction between 2007 and 2006 because we estimated a
large increase in 2006, over $1.5 billion being paid out this
year with a reduction back to a more normal level in 2007. That
had nothing to do with any assumption of changes to the program
or policy implications at all. It was strictly based on our
best understanding of how cases would be adjudicated in that
time period.
Ms. Jackson Lee. So there was no advocacy on your part to
eliminate and/or downsize the program?
Mr. Hallmark. Not at all, no. As I said, we want to see
this program work as it was intended by Congress to work, and
that's been our goal right from the beginning.
Ms. Jackson Lee. Thank you.
Dr. Melius, thank you for your presentation. You are a
Board member at this point. What is your tenure, sir? When were
you appointed?
Dr. Melius. I was appointed as part of the original Board.
So I think we started meeting in 2002.
Ms. Jackson Lee. And do you have a sense of when your term
ends?
Dr. Melius. My term is actually up, I believe. There have
been delays in--we're continuing to serve. There are delays in
the process, and we will see what happens. I don't know what
will happen.
Ms. Jackson Lee. And the Board is comprised of how many
members?
Dr. Melius. Currently, 12 members, and with the three
additional members, I believe that brings us up to 13.
Ms. Jackson Lee. And are they all filled at this point?
Dr. Melius. They are all filled. We have three new Board
members that have--as I mentioned before, two of the Board
members were dismissed that had served really since the
beginning, essentially, and then three new Board members were
added. Those Board members will officially start serving at our
next meeting, I believe, in April.
Ms. Jackson Lee. Obviously you may not be able to speak to
the new Board members, but the distinguished members who
served, were they competent and concerned about the program to
your understanding or maybe what you saw of their work?
Dr. Melius. Yes. They've all spent a lot of hours, a lot of
time devoted to this program. They represent--it's a diverse
group. We represent a range of backgrounds, a range of views on
a number of issues. We have struggled and had disagreements on
certain issues, and we have worked very hard to try to reach
consensus. I think most of our votes on issues, such as SEC
recommendations, have been not unanimous, but close to
unanimous. We work hard to reach agreement, to reach a complete
understanding of the issues and so forth. We all have different
backgrounds. I think that's helpful to the process.
Ms. Jackson Lee. You have offered some very important
testimony.
Mr. Chairman, I hope that we take note of Dr. Melius, who I
understand is an M.D. and a Ph.D. and seems to be competent to
me, and we should track whether or not after he leaves this
room today he gets a very open-ended letter thanking him for
his service. I will be outraged and I would like us to be
collectively outraged, and I would like to insist upon his
ability to continue his work. The fact that he has extended
himself to come to this hearing should be noted.
Dr. Melius, you mentioned secrecy, and obviously that's not
what we went intend to do with the Advisory Board, but on the
other hand seeks to ensure fairness. The outside contractor was
to add to that fairness and transparency. So, in essence, what
could we possibly be fixing with the new options that seem to
now being recommended? And let me share them with you:
requiring the Administration clearance for all special exposure
cohort designations, requiring an expedited review to outside
experts, addressing any imbalance in membership of the
President's Advisory Board on Radiation Worker Health, and
imposing constraints on the Advisory Board's audit contractor.
What help does that give the decision-making and the
ability for petitions or claimants to be heard?
Dr. Melius. As I said in my testimony, I think we have a
good sound process in place. The changes proposed, I do not
think will add significantly to that. As Dr. Howard has pointed
out, the only thing that some of those changes would add would
be more time, and we already have a significant problem with
this program, people waiting many years for their claims to be
reviewed and adjudicated. We don't need to add that to the
special exposure cohort process.
So I can see no significant benefit to the proposed changes
and I can see losses in terms of time and timeliness and losses
in terms of credibility by not maintaining an open and
transparent process.
Ms. Jackson Lee. In the work that you do, is your work
paperwork, or do you actually get to see the claimants?
Dr. Melius. Our Advisory Board holds meetings. Dr. Howard
was warning me. We actually have to be careful not to interact
too much on specific claims.
Ms. Jackson Lee. I understand.
Dr. Melius. Because of legal issues that are beyond me, but
they are real. However, we do hold all of our Advisory Board
meetings, nearly all of them at sites that are near the
Department of Energy sites. We have public meetings usually in
the evening so it's more convenient for people. So we hear from
many of the claimants and their families in that general
session.
Ms. Jackson Lee. And that's where I'm going. In the course
of hearing from individuals, can you say that you have heard
some very powerful stories, some very devastating stories, that
most of what you've heard would err on the side of overwhelming
as opposed to frivolous?
Dr. Melius. Oh, absolutely. These are not frivolous claims.
These are people with cancer. Often we've had people come
before our Board who are literally dying of cancer and are
obviously frustrated by the delays in adjudicating their
claims. We also have survivor family members with some very
heart-wrenching stories about what their father did in working
at the facility and with their frustration at not being able to
have some of that information understood or not understanding
why it takes so long for their claims to be adjudicated, but
these are all people that, again, who worked so hard and
sacrificed so much for our country.
I've spent 20 years working around these sites with doing
studies and meeting with people, and people are all so
dedicated and work so hard and again are just so frustrated by
the secrecy, the denial, the initial denial that there was any
problem, very happy that Congress recognized that something
needed to be done, that they deserved compensation with this
program, and some continued frustration with the fact that it
takes time, that it's such a complicated and difficult program,
and I think we need to keep that in mind as we work on this
program and certainly in anything we do to try the fix this
program.
Ms. Jackson Lee. I'd like to thank you very much.
If the Chairman would indulge me just to pose a question to
Mr. Miller since he was so intimately involved in the
constructing of this process, Mr. Miller, you mostly likely
have been engaged in, I guess, partly the writing or the
necessity of this legislation. One, do you have any knowledge
of whether there's any whistle-blower protection for the Board
or advisory members? Would that be a worthy addition? Do you
know of the number of former representatives of unions that may
be on the Board? And then, lastly, would you just comment for
me your view as to whether or not the layering that seems to be
offered by OMB is more stifling and stymieing the work of the
Advisory Board or does it help the claimant in terms of making
his or her case?
Mr. Miller. Let me answer your questions, if I may, in
reverse order.
First, I'd just like to point out that the OMB pass-back
memo is, in fact, part of the deliberative process that Mr.
Hallmark was talking about and was not made public, and had it
not been made public, we would not know that this was the real
hidden hand influencing who is on the Board, what happened to
the audit contractor, and that the White House was second-
guessing these decisions. So I'm very pleased, at least, that
you held this hearing to air this out.
I think the problems are fairly straightforward. If the
Government is going to stack the deck by dictating to HHS that
they must deny special cohorts as a way to save money, then the
credibility of the program crumbles. Period. It's not a
science-driven process. It's a budget-driven process, and what
Mr. Hallmark said here, frankly, is that the Department of
Labor is very concerned about this becoming a budget-driven
process, and while they may profess that it is not, his
fingerprints or that of his colleagues are all over this
document.
So I'm concerned that we have a process where
scientifically-credible decisions are going to be subordinated
to White House demands for budget cost constraints, and I think
at the end OMB may have already started to play their hand in
this process, as we've seen with the recent Board changes.
Secondly, with respect to the question of whistle-blower
status for Board members, you point out that perhaps Dr. Melius
took some courage to appear here today since his tenure is up,
as is it for three other members and that the question of,
``balance'' as implied at least in this memo is that they need
a balance of people who are going to put their elbow on the
scale to deny benefits. The balance that I would hope the Board
would have would be a six to six balance, which we have had
over the previous three or 4 years, and in a genuinely balanced
situation--and I have been to 32 of 34 open Board meetings--
what we witness is a debate going on amongst the various
perspectives and viewpoints and expertise that actually forces
consensus decisions. If one side dominates over the other, you
rubber stamp decisions or you allow people's biases to run
amuck. It is my concern that the two Board members that were
dismissed without cause and replaced with three new members
may, in fact, affect that balance going forward.
Whether Advisory Board members need whistle-blower
protection is a good question. I think everyone deserves and
should have whistle-blower protection, particularly those who
come to Congress and express their views and concerns. I
believe there's a bill called the Paul Revere Act which
specifically addresses that point.
Having said that, I would hope that you all would continue
your vigilance with respect to what happens to the Board
members as we go forward, and I very much appreciate it. Chills
went up my spine when I noted that you picked up on the risk
and exposure that these Board members have.
Thank you.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Might I just say that as I depart, I know there are other
questions, that with all of our work that we have to do with
the raging debate on immigration, I can't imagine that this is
no less important, and I hope we'll follow this through to very
end.
And I yield back. Thank you.
Mr. Hostettler. Thank you. The Chair recognizes the
gentleman from California for questions.
Mr. Gallegly. I thank for the Chairman for yielding, and I
won't take my full 5 minutes because I know the witnesses
probably wouldn't appreciate an hour and 20 minutes of my
questions.
In any event, I'd just like to preface my remarks. I'm sure
some of you are aware that I have represented the folks in the
21st, the 23rd, and the 24th Congressional District over the
past 20 years which takes in the Santa Susana site, better
known by many as Rockadine. In fact, my home has been within
just a few miles of that site for the last 40 years.
I'd like to pose a question to both or either or Dr. Howard
or Mr. Hallmark going back to my opening statement. In fact, I
made reference to the fact that this site study or side profile
or the threshold studies had not been completed yet. Some of
these claims, the 31 specifically had been returned from NIOSH
with instructions, and I do understand. The two questions I
have, number one, is it is my understanding that as of two
o'clock this afternoon, the study was reported out on the web
site after we had sent many letters and made many phone calls,
and I found it interesting that it was posted at two o'clock
this afternoon, yet it was dated February 22nd. Now, I know it
takes a long time to get through that little wire, and I'm not
really totally computer literate, but it seems like even the
mail service is faster than that.
So in any event, maybe you can explain that little detail,
but more importantly than that is the issue of how you can
explain 31 claims being sent back with instructions before you
had a study to refer to. Either Mr. Hallmark or Dr. Howard.
Dr. Howard. I guess I'm being volunteered to start, and I
may have to get back to you on the record on the details of
this, sir, but as I understand it, in terms of the claims that
we had at NIOSH that were pulled, the issue was over the
eligibility of the claimants. My understanding is that the site
is quite large. Portion of it are covered. Portions of it are
not covered. And it was not a data access problem. I've been
told that the site contact that we have for data is excellent
and quite capable and is giving us any data that we require to
do individual dose reconstructions.
That's my understanding right now, the information that I
have with regard to this. Which portions of the site is
covered, where the cases that we have, the employees that we
have, which part of the site did they work at in terms of being
eligible or not eligible, those are the issues that I think
NIOSH was dealing with, and since those are not issues that we
determine, those are more eligibility issues between DOE and
DOL. That's my understanding.
Mr. Gallegly. For the record then, just so I understand,
the 31 claims that had been returned, the threshold studies or
the site profile would have been irrelevant for those specific
31 cases.
Dr. Howard. I don't think we got to the science issues in
those cases. We were still at the eligibility issues.
Mr. Hallmark. John, if I can interrupt, I think it is
possible and does happen often that even if the site profiles
have not all been completed at a given site, there are some
cases which on their face can be addressed without that further
documentation. In other words, the case may be clearly
compensable or clearly not compensable.
Mr. Gallegly. Can you say specifically for the record that
was the case in these 31 cases?
Mr. Hallmark. I cannot say that for the record today.
Mr. Gallegly. I would appreciate, Mr. Chairman, if we could
make the request that the Committee direct DOL to get us a
formal response on that, because I think it's a very legitimate
question.
Mr. Hallmark. It's a very legitimate question.
Mr. Gallegly. And it's hard for me as a layperson to
comprehend how you can make a final determination on something
as important as this without the information necessary to make
the adjudication, and so from a layman's standpoint, I ask that
question, but that's one of the purposes of us being up here,
to ask those type of questions.
Mr. Hallmark, I know that my friend from Houston, Ms.
Jackson Lee, made a reference to the funding and the
differential between '06 and '07.
Mr. Hallmark. Yes.
Mr. Gallegly. And yet I'm still having a little problem
with that, and maybe you can help me, because of the 434 cases
that I'm aware of, only 10 have actually received any form of
compensation through EEOICPA. I guess that's the way some
pronounce it. In any event, you know what I mean.
Mr. Hallmark. Yes.
Mr. Gallegly. If only 10 of 434 have received compensation,
it's hard for me to understand why the budget is being cut in
the future, through the next year from the present year, when
you have basically maybe 5 percent, if that, and 95 percent
that haven't been adjudicated.
Mr. Hallmark. First of all, you weren't in the room when I
addressed the question earlier, I believe. The issue here with
regard to the budget is we make projections of what we think
the outlays are going to be.
Mr. Gallegly. Pardon me, but I was in the room and I did
hear you say that, and I did make reference to Ms. Jackson
Lee's question was, but my question was I still wasn't clear
because there wasn't the analogy of 10 of 434, and that's why
I'd like to have that part addressed.
Mr. Hallmark. The projections for the large increase in the
pipeline were for 2006, that a very large number of cases would
be cleared out of the pipeline both under Part B, because my
good friend Dr. Howard's staff would be clearing a lot of the
cases that are currently in their jurisdiction and would come
to us and then we would be able to pay them at the Department
of Labor. With respect to the new Part E, a large number of the
cases which we inherited from the Department of Energy would be
moving through our adjudication process and reaching fruition
in 2006.
So we projected that compared to a $600 million pay-out in
'05, we would have a $1.5 billion paid out in '06, then falling
back to, I believe, around $800 million in '07. That appears to
be a reduction in the '07 context, but it's really just the
projections as best we make them about how cases were going to
come to fruition. Now, obviously, if they don't, if fewer cases
get adjudicated in '06, then that 1.5 number will turn out to
be too high and more cases will probably end up falling into
the 2007, and whatever money is required to make these payments
will be provided by the Treasury.
Mr. Gallegly. Would it be safe for me then to say that my
question is answered with great optimism on the part of the
department, that the real answer to the question is we should
be excited about the fact that it is going to be less next year
than this year because it's your projection of those 434 cases,
the overwhelming majority of them will be resolved this year
even though only a pittance has been resolved in the past?
Mr. Hallmark. Well, first of all, the 400 is a small
percentage of the total value volume we're talking about.
Mr. Gallegly. I understand that, but I would think that
Santa Susana should be represented pretty much as well as the
other sites, and, believe me, I'm as concerned about the other
sites as I am this. I'm just more intimately involved in this
with the sheer numbers, and I would think that that percentage
would bear pretty much a fair relationship across the country.
Mr. Hallmark. Well, I would actually have to take issue
with that notion in the case of Santa Susana, because as Dr.
Howard alluded, there was a fairly substantial delay in coming
to closure on what the actual dimensions of coverage are at
that site under this program. This had to do with the
designation that was originally produced by the Department of
Energy with respect to which parts of the Santa Susana/E-Tech
Rocketdyne facility were, in fact, to be covered, and there was
a lengthy period of trying to come to closure on that. A
relatively narrow original designation has now been broadened
to cover a much larger area. That decision was reached in
September of 2005, but as a result of the interplay that went
on before that, these cases, the cases that you're particularly
concerned about, and I understand why that is, were not moving
forward on the same track as at many other sites.
So, in fact, while we will do our best, and I'm sure Dr.
Howard's staff will do their best, to move them forward, now
that those issues have been put behind us. They are behind the
curve vis-a-vis a number of other facilities.
Mr. Gallegly. Well, to say that I haven't been aware of
what's gone on for the past 20 years there would be an
understatement or an overstatement, however you want to refer
to it, but I don't think there's been a meeting in the last at
least 19 years where my staffers or myself, where someone
hasn't been present; and prior to that, I happened to be Mayor
of the city for 7 years of Simi Valley. So for 27 years, I have
been very well connected with the problems of what we refer to
as ``on the hill''.
I hope that now that we've got some of these roadblocks or
diversions behind us that there will be an extra effort to
clear these files, because folks, these people are dying. There
are people that are dying, and the clock means more to them
than it does to maybe some other Federal projects that we might
have out there, if it was a bridge or a highway or whatever,
because these folks are living with a very short clock, and I
would just appeal to you from a humanitarian standpoint to try
to do the right thing. I've got a lot of folks that are
directly physically affected by this, and I make that appeal to
you.
With that, Mr. Chairman, I yield back.
Mr. Hostettler. I thank the gentleman. I'm going to have a
few more questions, not many, but I would like to elaborate on
the budgetary implications of the OMB memo vis-a-vis the actual
budget, and to quote from the OMB memo, quote, ESA, the
Employment Standards Administration is to be commended for
identifying the potential for large expansion of EEOICPA Part B
benefits with the designation of special exposure cohorts, or
SEC, unquote. Now, as far as the budget is concerned, if there
is a large expansion of Part B benefits without the creation of
a new regime or significant changes to the program, I would
think that the budget would reflect a, ``large expansion or
increase in expenditures on the part of the EEOICPA Part B
benefits.''
But as I look at the actual budget appendix on page 733,
the estimated expenditures for 2006 are $460 million and the
budget estimation for 2007 is $277 million, a significant
reduction in Part B benefits to be paid out, and we're
discussing this memo in depth, at length. So if there hasn't
been significant changes and the Department of Labor is
suggesting to OMB that there's going to be to a large expansion
of benefits, how are we--once again, without substantial
changes to the program, how are we projecting significant
reductions in the expenditure of Part B benefits?
Mr. Hallmark. Mr. Chairman, the estimates for both Part B
and Part E are based on our actuarial projections, primarily
based on the experience to date with some input of information
about known incoming changes in the process through the
pipeline, as I've mentioned earlier. In the case of Part B as
in the case of Part E, we projected an increase in '06. In the
case of Part B, that was because we anticipated a larger number
of cases coming back from NIOSH than in the past, and the
anticipation was that that was then going to taper off in 2007.
That's the reason for the number going somewhat down in 2007.
We did not try to make the projections contingent upon the
outcome of the SEC class determination process as that is in a
sense unpredictable in terms of which classes might be acted
upon at which timeframe. So those kinds of forecasts are not
included in the projections that are in the President's budget.
Mr. Hostettler. But these are mandatory expenditures. I
guess my question is which one is right. Is the memo right?
Because if they're mandatory expenditures, there would have to
be the provision, if there was--if they're mandatory
expenditures and they are being projected to be a large
expansion in mandatory expenditures, I guess my question is,
once again, which one is right? Is the budget right or is the
identification of large expansion of Part B benefits right?
Mr. Hallmark. Well, if there were a large number of broad
SEC classes created, that would change the budget projections
that we have presented.
Mr. Hostettler. Actually, that would change the actual
outlays.
Mr. Hallmark. The projections are what they are, but it
would change the outlays, and that would cause a differential
vis-a-vis what we've projected.
Mr. Hostettler. Right. And I guess what my question is, is
that OMB creates the budget, that helps in the budget process,
is being informed by DOL that there's going be a large
expansion of benefits just as they would be from HHS with
regard to a large expansion of prescription drug benefits for
seniors through Part D. They would reflect that in their budget
authority requested. Now, if instead of a third of seniors
signing up for prescription drugs, two-thirds of seniors signed
up, then the outlays would far outpace the B.A., that was
projected, but if everyone recognized that probably two-thirds
of seniors were going to sign up the B.A. request, the budget
authority request, would reflect that. They would be
consistent. I guess that's my question. I appreciate the
response. It's just a little confusing.
If I can go on to Mr. Miller. Let me ask you about the
audit contractor's work. Is it your understanding, your
experience, that the audit contractor's work product is
satisfactory and useful to the process?
Mr. Miller. Thank you, Mr. Chairman. The audit contractor's
process is governed by the series of procedures that the
Advisory Board had to put in place first, and so they work
within a set of very standardized sets of questions. If they
review a site profile, they look at data adequacy, compliance
with regulations. Yes, they do look at questions of claimant
favorability, because that's written into virtually every
single NIOSH guidance document, and so to that extent, Mr.
Hallmark is right. Where Mr. Hallmark, though, perhaps may be
overstating the case is that this audit contractor has produced
audits that I have reviewed, redacted, that show overestimates
and they flag it when NIOSH or its dose reconstruction staff
have overestimated cases. They have recently identified cases
that were referenced at the most recent Advisory Board meeting
where the improper procedures were used and it may have led to
significant overestimates which may have actually even led to
inappropriate compensation, although we don't know that because
that has yet to be revealed; but the very fact that they put up
a red flag and call it as they see no matter what is I think
what you want to count on in a peer review process.
The characterization I think that Mr. Hallmark made was
both unfair and unsupported by the record. From a claimant's
perspective, there is something very important about having
this audit contractor. They do not bring to the table a set of
baggage from having been at the Department of Energy creating
and running those dosimetry programs, and they take a wire
brush over the assumptions that NIOSH and its dose
reconstruction contractor--which is a major DOE contractor--and
they bring, they dig right into the assumptions and the roots
and the adequacy of the data and the validity of what's being
looked at.
They ask the questions which, frankly, claimants lack the
expertise to even dig into. And in the end, claimants if their
claim is denied, don't have ability to say you're misestimating
my dose unless it's something really obvious and glaring, and
they're counting on the Advisory Board and a truly independent
audit contractor to give credibility to the process that the
problems are caught wholesale, that the procedures that are
found get fixed across the Board. Claimants aren't bringing
individual claims and saying I want to appeal to the Advisory
Board. They're not allowed to do that, but the generic problems
that have to get rooted out can't get rooted out there,
particularly, as Dr. Howard was saying, they're very focused, I
think recently, on conflict of interest. But as our testimony
points out, many of the people writing the core guidance
documents for this dose reconstruction program managed the
health physics programs at DOE sites. They have significant
professional conflicts of interest, and we have documented that
this has tainted the quality of science coming out of this
program, and the only way to effectively get at the taint and
the quality of the science in this program is for there to be
an effective check and balance. Without that, we all have to
walk away, throw up our hands, and say it lacks credibility.
And so for the OMB document and Mr. Hallmark to try to
knock the knees out from underneath this check and balance,
this peer review process, it is really quite troubling, because
at the end of the day, if he prevails and the OMB prevails in
this process, I'm not sure claimants are going to have much
confidence at all that they have anybody who is really looking
at it, looking at all these assumptions under a microscope and
scrubbing them.
Mr. Hallmark. Mr. Chairman, if I could respond.
Mr. Hostettler. Yes, Mr. Hallmark.
Mr. Hallmark. I'm sorry to interrupt, but since I've been
taken issue with, I'd like to just respond a moment.
I think it's fair to say that the SC&A folks have a clear
statement of conflict of interest with respect to having
responsibilities or having prior experience in dealing with DOE
contractors as support for DOE contractors or working for DOE
contractors. They do not, however, come to table with no
baggage since many of the analysts for SC&A, in fact SC&A
itself, have served as retainers for individuals who are suing
either the Department of Energy or the United States Government
or similar entities. So they're on the other side of the table.
So Mr. Miller's view of balance in this respect is
different than mine. I believe that conflict of interest
requirements should apply on both sides of the house and that
we should look to see whether individuals who are making
judgments about a particular site have had involvement at that
site on the DOE side or on the other side.
Mr. Hostettler. I appreciate that. I think we received
testimony from Dr. Melius that there was stringent conflict of
interest provisions from the audit contractor that even
exceeded those of the dose reconstruction contractor.
Is that not accurate, Dr. Melius? Is that what I heard?
Dr. Melius. Correct.
Mr. Hallmark. I believe that the stringency is on the issue
of making sure that the SC&A individuals have had no dealings
whatever as support for DOE. I'm looking at the SC&A disclosure
documents that are on their web site now, and the question that
is answered is have they served as an expert witness in
litigation defending workers' compensation or other radiation
claims, and the answer is no. The answer, I think would be,
yes, however, if the question were posed have you served as an
expert witness in litigation for the plaintiff's side, and in
my view, that kind of involvement is also a potential conflict
of interest and has not been addressed, at least in the
documents that SC&A has on its web site.
Mr. Miller. Mr. Chairman, if I could respond.
Mr. Hostettler. If I could just ask a question, and the
question, I guess, is why isn't that question asked?
Mr. Hallmark. The issue of plaintiff status?
Mr. Hostettler. Yes.
Mr. Hallmark. I assume because the answer would be yes, and
that would raise the question of whether there was, in fact, a
conflict of interest that should bar at least the participation
of those individuals at particular sites where they have a
current interest.
Mr. Hostettler. I guess my question is isn't that the
purpose of an audit contractor--to actually give a reason for
the claimant community to believe that the process is
transparent. I mean, if I were going to choose one, and I think
actually Dr. Howard pointed out the very true fact of human
nature that we're all going to come to the table with some
perspective, some bent, and that's totally understandable. As a
person who is a budget hawk, potentially sometimes to a fault,
I would come to a lot of these issues looking at the dollar
figures. This does not happen to be one of those and is far
from it, but so we all come to the table with a certain
perspective.
So as an audit contractor, I would think we would want
someone that if they had a bent, then they would have a bent
toward the claimant community. I think we would recognize that.
But the individual that is actually the entity that is actually
doing the science, is the dose reconstruction contractor, and
would be the one that we would want to have as little conflicts
of interest because science, being somewhat familiar with it as
I am, is not an issue of interest. It is an issue of science,
and so we would want that standard, and then we would want this
other entity that would be more like I said, because as Mr.
Miller pointed out, the claimant community, by and large lay
people, they want somebody that's looking into this situation,
that's asking all the right questions, that are meddling,
however you want to put it, and are keeping us all honest,
including Congress, about this process.
So you have a very good point, Mr. Hallmark. I understand
that, and I would presume that the audit contractor would be
bent that way, because, in fact, the Federal Government harmed
these people knowingly, and so I would want somebody in the
process that would be looking over our shoulder, because if we
did it once, we might be predisposed to doing it again,
collectively, all of us. All of us, not any one particular
entity, not any one Administration, Congress, nobody, no one
person.
So anyway, the point is very well taken.
Mr. Hallmark. If I could extend my remark for a moment, I
think I want to repeat that NIOSH came into this process
following congressional guidance to ensure that dose
reconstruction was done on a basis that leaned over backwards
to be favorable to the claimant, and I think they've done that
from the very start of this program.
I think the point that I'm trying to make with regard to
the issue of balance is that if the Board's review of what
NIOSH does only looks at one-half of the equation, could they
lean further over. Then it raises the question about is there a
point about which plausibility is lost? And if no one is really
looking at plausibility, then there is no check and balance in
the system. The system is going to be focused entirely on
moving the bar to the side of further exaggeration or further
overestimation.
This is a non-adversarial program. So there is no party
that has standing within the EEOICPA program to say, no, we
object; that claim is too far; that's gone beyond plausibility.
There is no employer interest, or the Department of Energy has
no standing in this program to appeal or to argue. So if the
Board and its contractor look only at one side of the equation,
then the entire program will move that way, because I would
also submit that science is in this case part of a discussion,
and the science is open a range of possibilities, and NIOSH is
reasonably guided by what their Board tells them, and I think
the outcome of that can be other than balanced and objective in
the long run if, in fact, there is only one equation, only one
criterion being applied.
I think that's the substance of what we're trying to say.
Mr. Hostettler. Sure. I appreciate it.
Dr. Melius, yes.
Dr. Melius. I'll try to do this very briefly. Two points:
One is the Board had long discussions on the conflict of
interest issue and how to achieve a correct balance and this
issue of which side people had appeared on in various
situations, and we actually reached the same conclusion that
you just stated--that we needed to pay special attention to the
issue of people that had worked for the Department of Energy
facilities giving the past history of what went on. The other
issue was subordinate to that, not totally ignored, but it was
subordinate to that.
Secondly, to Mr. Hallmark's last statement, I would just
reiterate that the Board does look at both sides of this, of
these issues, that we're trying to reach a fair and balanced
view of this. I shouldn't use the word ``balance'' probably
anymore here, or imbalanced or whatever, but we want to come up
with a fair assessment, and we have instructed our audit
contractor to look at a range of issues, some of which would
lead to overestimates, some which might lead to underestimates,
and then we try to reach our conclusions based on what is the
right balance dealing with that.
I think it's important to note that much of the recent
deliberation of the Board has involved special exposure cohorts
where there large numbers of records are missing and going back
in time, and without going into technical details, they are
difficult to do. So NIOSH is often trying to make the best it
can do if it is going to be able to do dose reconstruction
based on very little data. So there really is a fundamental
question. If you're only using a very small amount of data, is
that fair to the claimant to do it in that way.
So we may have looked a little bit more on the side of,
well, how do you extrapolate from little data to a lot of data.
You don't want to punish the person for there not being records
of their exposures. So maybe much of the discussion has been
more on that side, but overall, as Mr. Miller has pointed out,
if you want to look through the reviews that the contractor has
done on individual cases, there's a mix. Some cases
overestimate. Sometimes underestimations of the exposures or
whatever is being specifically looked at, and then we need to
step back and say, Well, what's the right way of doing a fair
overall estimate of that person's dose.
So we ask the contractor to look at all sides and then
report back to us.
Mr. Hostettler. Thank you, Dr. Melius.
And Mr. Miller.
Mr. Miller. Mr. Chairman, thank you. I would just like to
draw your attention to page 14 of our testimony where we cite
five separate examples where the NIOSH through its contractor,
Oak Ridge Associated Universities, has hired individuals who
managed the health physics programs and in some cases served as
expert witnesses defending workers' radiation compensation
claims. For example, at the Idaho laboratories in Idaho, there
is an individual who wrote the guidance document, the threshold
document that Mr. Gallegly was talking about, that was used for
evaluating compensation claims, and so in numerous, numerous
cases defending compensation claims for radiation-related
illness.
If Mr. Hallmark wanted to apply his conflict of interest
criteria to Oak Ridge Associated Universities, you would have
an exodus out the door of health physicists and a paucity of
individuals to work on those cases. So the question then
becomes checks and balances, and it goes back to that earlier
point. If the pool of health physicists out there is relatively
shallow, which it is, and many of them come directly out of the
revolving door of managing the health physics programs and at
the same time bring their own perspectives and biases,
including having testified on the record as an expert witness
in defending these claims at these sites, and are writing the
guidance documents, they themselves are caught between what
they've said on the public record and what they're obligated to
do for NIOSH, and the question is who technically is out there
that's going to ask the pointed questions in a technically
astute manner.
If I can just give you one example, in the case of Paducah,
Kentucky, NIOSH hired an individual who wrote an internal dose
assessment report for Martin Marrieta who ran that plant. She
cut and pasted her own previous work directly into the NIOSH
site profile which had been found previously to incorrectly
minimize exposures to the very isotopes of concern, and then
NIOSH went through going through four tiers of review, rubber
stamped it, sent it out the door, and adjudicated cases
accordingly.
Now, fortunately in this instance, Senator McConnell picked
up on this and has asked NIOSH to review this again and they
have agreed to do so, but I would only use this as an example
of someone who brought her own bias to the table, cut and
pasted her work in. It was incorrect to start with. It had been
criticized in the open literature, and who is going to be out
there that's going to be astute enough to catch that if you are
relying on the same individuals in the system to serve as your
audit contractor? You need a set of fresh eyes that aren't
wedded to that system. That's what Sanford, Cohen brings.
Mr. Hostettler. Thank you.
Thank you, gentlemen. We are concluded. I want to thank you
for your testimony and your appearance here today. This is a
very difficult issue, and I commend you for the work that
you're doing to resolve these differences.
Our next hearing on this issue will be held next week on
Thursday. We will continue in this. Your contributions have
been extraordinary to the record on this. Congress had
intentions when we originally passed the law to right this
wrong that was done by the Federal Government so many years ago
to these people. Once again, I want to thank you for your
participation and the work.
The Subcommittee being completed, we are adjourned.
[Whereupon, at 6:01 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking Member,
Subcommittee on Immigration, Border Security, and Claims
Today's hearing will focus on Subtitle B of the Energy Employees
Occupational Illness Compensation Act. Subtitle B covers 3 types of
occupational illness associated with making nuclear weapons,
``cancer,'' where it can be shown that the cancer is at least as likely
as not related to ionizing radiation exposure while employed at a
nuclear weapons facility; ``chronic beryllium disease,'' and ``chronic
silicosis.''
Energy Department federal, contractor, and vendor employees who
have contracted one of these illnesses, or their survivors, may be
eligible for a lump sum of $150,000 and prospective medical benefits.
The Act also provides for a $50,000 supplemental payment to uranium
miners/millers, or their survivors, who were eligible to receive
$100,000 under the Radiation Exposure Compensation Act.
For radiation related cancer claims, the Department of Health and
Human Services (HHS), through the National Institute for Occupational
Safety and Health (NIOSH), is required to estimate a worker's radiation
dose if dose records are available. However, during the earlier years
of the nuclear weapons programs, especially between the 1940s and the
1970s, some workers were not monitored and the monitoring that was done
sometimes was inadequate. Also, some records from this period were lost
or destroyed.
The Act provides a remedy for cases where it is not feasible to
estimate radiation doses with sufficient accuracy, and it is clear from
job types that the workers' health may have been endangered by
radiation exposure. Under these provisions, workers (or their unions)
may petition to be administratively designated as a ``Special Exposure
Cohort,'' which establishes an unrebuttable presumption that certain
cancers are work related. Members of a Special Exposure Cohort are
eligible for the $150,000 lump sum benefit if they have one of 22
radiosensitive cancers and, in general, if they have worked at a
covered facility for at least one year in a job that exposed them to
radiation.
The HHS Secretary, subject to a review and recommendation from the
Advisory Board on Radiation and Worker Health, makes the ``Special
Exposure Cohort'' designations. To date, the Secretary has denied 2
Special Exposure Cohort petitions and approved 6 involving
approximately 1,100 cases.
The Administration recently declared its intention to reduce the
number of Special Exposure Cohorts in a memorandum referred to as an,
``Office of Management and Budget (OMB) passback.'' The passback
provides for establishing a White House-led interagency work group ``to
develop options for administrative procedures that will contain the
growth in the cost of benefits provided by the program.''
Options to be considered include requiring an administration
clearance for all Special Exposure Cohort designations; requiring an
expedited review by outside experts; addressing any imbalance in
membership of the President's Advisory Board on Radiation and Worker
Health; and imposing constraints on the Advisory Board's audit
contractor.
Currently, a Special Exposure Cohort petition goes through an
initial evaluation by NIOSH, and its recommendation is then peer
reviewed by the Advisory Board before it goes to the Secretary for a
decision. These reviews are conducted in the open and on the record
with an opportunity for input from experts and the petitioners.
We need to be concerned about this system if it is broken or HHS is
approving Special Exposure Cohort petitions that should be denied. We
will hear testimony on that issue today.
Five-and-a-half years have passed since the Energy Employees
Occupational Illness Compensation Act was enacted, and the sick workers
who were supposed to be served by its programs are dying. The
Administration should be doing more to help these workers, not trying
to make it more difficult for them to establish eligibility for
compensation. It is too difficult already.
These workers made a commitment to our country when the country
needed them. Now, it is our turn to help them in their time of need.
__________
Prepared Statement of John Mauro, Ph.D., CHP, Project Manager,
S. Cohen & Associates (SC&A, Inc.)
Chairman Hostettler, Ranking Member Jackson-Lee, and Members of the
Subcommittee, thank you for the opportunity to submit testimony
regarding the role my firm, S. Cohen & Associates (SC&A, Inc.), plays
in supporting the critical independent advisory function of the
Advisory Board on Radiation and Worker Health (the Board) under the
Energy Employees Occupational Illness Compensation Program Act (the Act
or EEOICPA).
First, I would like to provide an overview of who we are, our role,
and how we have approached our technical work for the Board over the
past two years. This will be followed by a more detailed description of
our contractual requirements and accomplishments. I will conclude by
briefly offering our perspective on the value of the technical
inquiries that we have made.
SC&A is a small business providing professional services in the
radiation sciences. The majority of our work over the past 25 years has
been for government clients, including the Environmental Protection
Agency, Nuclear Regulatory Commission, Centers for Disease Control and
Prevention, and Defense Nuclear Facilities Safety Board. Our reputation
has been built on our technical expertise and on the ethical standards
that we have brought to our work on sensitive public issues, such as
nuclear waste management, contaminated site cleanup, and the health
risks of radiation. While this past experience is deep and diverse, it
does not include radiation protection support for the Department of
Energy or its operating contractors.
SC&A CONTRACT ROLES AND RESPONSIBILITIES
On October 14, 2003, a three-year, task order contract (200-2004-
03805) was executed between the Centers for Disease Control and
Prevention (CDC) and SC&A. Under this contract, SC&A's role is to
provide technical assistance to the Board in fulfilling its mandate
under EEOICPA, which has amongst its charges the task of reviewing a
reasonable sample of dose reconstructions for scientific validity and
quality, assessing the methods and procedures for dose reconstruction,
reviewing Special Exposure Cohort (SEC) petitions, and advising the
Secretary of Health and Human Services (HHS) in these matters.
All tasks under this contract are performed in accordance with
Federal acquisition regulations and protocols mandated by the Federal
Advisory Committee Act (FACA). In summary, the Board, in open session,
identifies tasks that they would like SC&A to perform, and that are
within SC&A's contractual statement of work. The NIOSH Designated
Federal Official, who currently also serves as the NIOSH Project
Officer for this contract, and the NIOSH Contracting Officer
participate in this process. Once the Board agrees on the scope of a
given task order, the Board, in cooperation with the NIOSH Project
Officer and Contracting Officer, issues a Task Order Request for
Proposal (TORP). In response to the TORP, SC&A prepares a proposal of
work, which includes the task order scope of work, a budget, schedule,
technical approach, and assigned personnel. The Board and the NIOSH
Contracting Officer review SC&A's proposal, provide any comments or
additional direction to SC&A, and SC&A submits a revised proposal, as
required. During open session, the Board approves the proposal of work,
and work begins.
Before work on a task order can begin, SC&A is required to submit a
quality assurance plan and a conflict of interest plan to implement
controls over documents as needed in order to meet the requirements of
the Privacy Act, and to prepare written technical procedures that must
be reviewed and approved by the Board in open session. The procedures
that SC&A has prepared to date flow directly from the Act and the
regulations that implement the Act, namely 42 CFR Part 82, which deals
with dose reconstructions, and 42 CFR Part 83, which deals with SEC
petitions. Hence, everything we do is designed to assess the degree to
which NIOSH work products under the Act meet the letter and intent of
the Act and its implementing regulations.
To date, SC&A has been authorized by the Board to perform a number
of task orders (six in total, at a projected cost of $6.5 million
through September 31, 2006; i.e., about $2 million per year), which can
be conveniently grouped into four categories of services, as follows:
1. Review of the procedures, guidelines, and other ``tools''
being used by NIOSH to perform dose reconstructions: To date,
SC&A has either reviewed or is in the process of reviewing a
total of about 60 NIOSH and NIOSH contractor procedures, and
approximately 30 workbooks. Workbooks are computer programs
that help NIOSH dose reconstructors perform their work in
accordance with the dose reconstruction procedures.
2. Review of site profiles: To date, SC&A has either reviewed
or is in the process of reviewing 15 site profiles pertaining
to specific Department of Energy (DOE) or Atomic Weapons
Employee (AWE) facilities. Site profiles are technical
documents that provide background information and technical
direction to dose reconstructors on how to go about
reconstructing doses for particular facilities.
3. Review of adjudicated dose reconstructions: To date, SC&A
has reviewed or is in the process of reviewing 80 dose
reconstructions performed by NIOSH. The dose reconstructions
performed by NIOSH are being used by the Department of Labor in
support of compensation decision-making under the Act.
4. Technical support to the Board in matters related to
Special Exposure Cohort petitions: To date, SC&A has been
requested by the Board to perform the following SEC-related
tasks: (1) prepare a report that presents a review of the
procedures developed by NIOSH for use in evaluating SEC
petitions, (2) prepare procedures to be used by SC&A and the
Board for reviewing SEC petitions and/or SEC evaluations
prepared by NIOSH, (3) review the Ames Laboratory SEC petition,
and (4) perform focused reviews of Board-selected issues
related to the Y-12 and Rocky Flats SEC petitions. We have also
provided technical support to the Board on the Mallinckrodt and
Iowa Army Ammunition Plant SEC petitions by evaluating the
relevance of certain issues raised in the site-profile review
process for determining the feasibility of dose reconstruction
under the SEC regulation (42 CFR Part 83).
All of our work products are either delivered to designated Board
members as preliminary draft reports, which are works in progress and
are not distributed to the public, or are delivered to the full Board
as draft reports that are immediately made available to the public. The
draft reports contain SC&A findings resulting from our reviews of NIOSH
procedures, guidelines, workbooks, site profiles, dose reconstructions,
and SEC evaluation reports. The delivery of these reports triggers an
issues-resolution process under the direction of a Board-designated
working group. A working group consists of a chairperson, about three
other Board members, representatives of NIOSH, and representatives of
SC&A. The mandate of the working group is to discuss the technical
details of SC&A findings with an aim toward resolution of the issues.
Working group meetings often involve participation by interested
members of the public, and the meetings are transcribed and are a part
of a public record.
The implementation of the working group concept has become
increasingly more productive and efficient as experience has been
gained and the process streamlined. SC&A's analyses have often been
pivotal in the Board's findings on the NIOSH dose reconstruction
program, including instances where over-conservatism in technical
approach could lead to significant overestimates of radiation doses,
and those where the NIOSH procedures being reviewed were not resolving
uncertainties in favor of the claimant in a manner laid out in the
regulation (42 CFR Part 82). SC&A has recognized the pragmatic approach
that is incumbent upon NIOSH in balancing science with delivering
defensible dose-reconstruction determinations. While SC&A takes this
perspective into account in its reviews, we see our function as
ensuring that the work done in dose reconstruction and SEC petition
evaluation conforms to the standards of sound science and resolution of
uncertainties that exist in favor of the claimant, as required by the
regulations. We believe the results achieved to date speak for
themselves and will be enumerated in more detail later in this
statement.
At full Board meetings, in open session, the Chairman of the
working group reports progress on the issues-resolution process to the
Board. If it appears that the working group has gone as far as it can
in resolving issues, the Board holds an issues-resolution session,
where each issue is discussed in open session, and the issue is closed
out to the extent possible. Closeout of an issue involves a statement
by the Board that either (1) SC&A withdraws its findings based on
additional information provided by NIOSH, (2) NIOSH concurs with SC&A's
findings and has taken action or plans to implement an action that
resolves the issue to the satisfaction of the Board and its contractor,
or (3) the issue remains unresolved to varying degrees, and there is no
further action necessary by SC&A to participate in the resolution
process for that issue.
The important point to be made here is that all activities by the
Board and its contractor are fully transparent and traceable back to
the Act and its implementing regulations.
SC&A EVALUATIONS HAVE BEEN VALUE-ADDED
To date (i.e., since the beginning of the project on October 14,
2003), SC&A has delivered 32 reports to NIOSH and the Board at a cost
of $3.7 million. While the detailed analyses contained in, and hence
the length of, the reports is one indication of the amount of work that
has gone into them, we have tried to review for this hearing some of
the more important accomplishments in programmatic terms. The 10 most
important of these, culled from a larger list, are described as
follows:
1. SC&A's reviews of NIOSH and ORAUT dose reconstruction
procedures and dose reconstructions identified a substantial
number of technical errors and have entailed programmatic
corrections, procedural changes, and re-reviews of adjudicated
cases. For example, seventy-five percent of dose conversion
factors (DCFs) used to convert the readout on a personnel
dosimeter to the dose to the organ of concern were in error and
are being corrected. SC&A also identified an error in the
methods used to reconstruct the doses to lymph modes. NIOSH has
acknowledged this oversight, revised its procedures, and is
currently planning to review about 1,000 previously adjudicated
cases.
2. Our review of several site profiles revealed incomplete
radionuclide lists or inadequate consideration of radionuclide
concentrations, leading to serious underestimation of doses or
to incorrect conclusions about the feasibility of dose
reconstruction or both. For instance, for the Mallinckrodt
Chemical Works (MCW) facility, the site profile coverage of
several radionuclides--thorium-230, protactinium-231, and
actinium-227--was deficient. SC&A's assessment showed that in
many cases these radionuclides would be the largest
contributors to radiation dose. SC&A's analysis showed that the
methods proposed by NIOSH in the site profile would have led to
significant underestimates of radiation dose to many MCW
workers. Similarly, at Y-12, Savannah River Site, and other
sites, SC&A has identified radionuclides that were omitted from
consideration or inadequately considered. For instance, SC&A's
reviews showed that inadequate evaluation of trace
radionuclides in recycled uranium, including plutonium and
neptunium, would also lead to significant underestimates of
dose.
3. The methods adopted by NIOSH to reconstruct the doses for
early workers at the Iowa Army Ammunition Plant (IAAP) were
found by SC&A to be so overly conservative (i.e., result in
excessively high dose estimates) that they would have resulted
in inequities in compensation for post-1963 workers who did the
same work as workers in 1950s and early-1960s. The latter would
have been compensated due, in part, to an effort to protect
classified data, but the former would have been denied
compensation for the same cancers and the same work.
4. SC&A's review of several site profiles revealed that NIOSH
often has not paid adequate attention to the problem of data
integrity (i.e., can we trust the completeness,
representativeness, and accuracy of the data?). SC&A's work has
uncovered data integrity problems at Rocky Flats and the Nevada
Test Site. Those issues are currently undergoing investigation
by NIOSH.
5. SC&A's review and analysis of several of the site profiles
has shown that many of the concerns of claimants, site experts,
and members of the public had technical merit and had not been
given adequate consideration. Examples include incidents such
as cobbling of uranium rods at Bethlehem Steel, high-fired
plutonium oxides at Rocky Flats, and trace radionuclides, such
as protactinium-231 and actinium-227 at Mallinckrodt. More
recently, the identification of a data integrity problem in
part of the external dose record at the Nevada Test Site has
revealed a critical issue for NIOSH review, which had not been
identified in its site profile for that site.
6. SC&A's review of the Bethlehem Steel site profile
identified numerous deficiencies in the methods used for
performing dose reconstruction. This has resulted in
significant changes to the Bethlehem Steel site profile and the
direction being given by NIOSH to the dose reconstructors. The
degree to which these changes may affect adjudicated claims is
under review by NIOSH.
7. SC&A's review of the application of NIOSH's dose
reconstruction procedures revealed that in some cases these
procedures were inappropriately applied and resulted in large
overestimates of the reconstructed doses for some workers.
Specifically, NIOSH developed certain procedures, such as
ORAUT-OTIB-0004, for the express purpose of maximizing doses
for cases that were clearly non-compensable. This strategy of
deliberately overestimating doses for non-compensable cases is
appropriate as a means to expedite the dose reconstruction
process and is in accordance with the provisions of 42 CFR Part
82. However, SC&A identified cases where these procedures were
misapplied, resulting in potential inequities in compensation.
8. SC&A's reviews of site profiles and dose reconstructions
revealed the use of inappropriate technical assumptions that
result in scientifically implausible intakes of radionuclides.
In many instances, NIOSH employed standardized simplifying
assumptions in performing dose reconstructions as a means to
expedite the dose reconstruction process. However, in many
instances, these assumptions were inappropriate to the exposure
setting experienced by the worker. One example is the
application of a set of default radionuclides that apply to
specific classes of facilities (such as nuclear reactors), but
not to others (such as at non-reactor facilities). This results
in dose reconstructions that are without scientific basis.
9. SC&A's review of NIOSH's procedures for performing
claimant interviews indicates that there are inequities in the
interview process for survivor claimants. Specifically, it is
often not possible for survivor claimants to answer the
questions posed in an interview, resulting in a degree of
frustration on the part of the claimants. SC&A has suggested
procedures for remedying these inequities. The Board working
group, SC&A, and NIOSH are currently discussing this issue.
10. SC&A's review of site profiles (and complex-wide
procedures) revealed that the guidance contained therein is at
times without technical basis, often confusing, and has
resulted in erroneous dose reconstructions. For example, SC&A
identified recurring problems regarding neutron dosimetry and
protocols for assigning neutron doses. One facility that is
affected by these issues is Hanford. Also, NIOSH's procedures
are often confusing and contradictory, resulting in numerous
errors in dose reconstructions, especially in the assignment of
uncertainty in the reconstructed doses. NIOSH is remedying this
situation by revising its procedures and preparing computerized
workbooks that help to avoid these problems.
The preceding illustrative findings are not presented to emphasize
fault with NIOSH's program--the scale and scope of the agency's dose
reconstruction mandate under EEOICPA is particularly daunting and
technically complex. It is to underscore the integral role that SC&A
has already played in support of the Board to bring important issues
and deficiencies to the attention of NIOSH, so that suitable actions
can be taken.
SC&A ASSURES INDEPENDENCE AND EXPERTISE OF ITS WORKFORCE
The worth and integrity of SC&A's technical work derives directly
from our corporate ethic and the people that staff this project. As
with our other contracts, SC&A has assigned only the most qualified
professionals to this contract. These include specialists in internal
and external radiation dosimetry, environmental and medical
radiological programs, and nuclear facility operations and safety. We
have strived for a diversity of expertise and experience, because we
believe that gives us the capability to add true value to the highly
technical assessments that NIOSH performs, and facilitates professional
discourse on issues of science and technical judgment. We have also
looked for individuals who have a proven talent for analyzing complex
technical issues that require inquisitiveness and a probing mind to
uncover errors and discrepancies. Finally, while we rigorously and
openly apply internal conflict-of-interest requirements to preclude
individual conflicts of interest, we have also been open to a diversity
of backgrounds, including former DOE federal auditors, non-profit
interests, and industry consultants, with the common denominator being
professionals who do not have conflicts of interest, who are experts on
the subject, and who are experienced in performing independent
technical inquiries.
Before closing, it is important to emphasize that the very nature
of the support services SC&A provides to the government requires the
highest level of oversight of conflict-of-interest issues. This is
especially true for the services we are providing to the Board under
this contract. SC&A's conflict-of-interest plan was submitted in final
form in October 2004, and was approved by the Board. Fundamental
provisions of the plan include that no individual can work on this
project if (1) they currently work for NIOSH or (2) if they have ever
defended the government against workers compensation claims. In
addition, no SC&A team member that has worked in the past at a Federal
facility can serve in a lead capacity on any task issued under this
contract dealing with that facility. These and other conflict-of-
interest requirements are enforced by SC&A's COI Plan Administrator,
and each member of the project team is required to submit a conflict-
of-interest disclosure statement that is maintained current and
published on SC&A's web site (http://www.scainc.com/niosh--
disclosures.html).
CONCLUSION
In closing, we believe the audit role that SC&A has provided in
support of the Board for the EEOICPA program has proven effective and
is becoming more influential and efficient as experience is gained by
all parties. We believe our success to date results from our efforts to
build program value by focusing on high priority findings, balancing
scientific soundness with the practical constraints of a compensation
program, and identifying instances of over-conservatism as well as
deficiencies requiring more claimant favorability. We appreciate the
imperative of avoiding conflicts of interest amongst our staff and
organization, and have a very rigorous conflict-of-interest program in
place. Moreover, we believe that the diversity of our team and its
dedication to scientific rigor have resulted in the objective and
careful analyses mandated by the charge of the Board. We also believe
that the careful consideration that SC&A has given to claimant, site
expert, and public comments has led to better science, fairer
procedures for dose reconstruction, and higher confidence of the public
in the program.
As various SC&A reviews progress, we are addressing a number of
issues that are common to many future DOE and AWE sites, thereby
providing a generic means to achieve closure at multiple sites with an
anticipated net savings in time and costs. Increasing efficiencies
being realized due to experience gained by all parties--particularly
more recently with SEC evaluations--are likewise leading to
efficiencies that should translate into cost savings.
We appreciate the opportunity to submit this testimony and to be a
part of this important national program to compensate civilian veterans
of the Cold War.
Responses of Shelby Hallmark, Director, Office of Workers Compensation
Programs, U.S. Department of Labor, to post-hearing questions from the
Honorable John N. Hostettler
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Responses of John Howard, M.D., M.P.H., Director, National Institute
for Occupational Safety and Health, Centers for Disease Control and
Prevention, U.S. Department of Health and Human Services, to post-
hearing questions from the Honorable John N. Hostettler
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Responses of James Melius, M.D., DRPH, Administrator, New York State
Laborers Health and Safety Trust Fund, Member of the Advisory Board on
Radiation and Worker Health, to post-hearing questions from the
Honorable John N. Hostettler
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Responses of Richard D. Miller, Senior Policy Analyst, Government
Accountability Project, to post-hearing questions from the Honorable
John N. Hostettler
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Letter from Sanford Cohen, President, S. Cohen Associates, Inc.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
<all>