BILL TO COMPENSATE POISONED NUCLEAR WORKERS -- HON. MARK UDALL (Extension of Remarks - September 14, 2000)

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in the House of Representatives


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Title: Energy Employees Occupational Illness Compensation Act of 2000 (based on Title 35, Senate Defense Authorization Act, FY 2001).

Background: After decades of denials, the Administration has conceded that workers who helped make nuclear weapons were exposed to radiation and chemicals that caused cancer and early death. Secretary of Energy Bill Richardson is leading the Administration's efforts to pass as comprehensive a bill as possible in this Congress. The Administration offered a preliminary bill in November 1999 (HR 3418) through Representative Paul Kanjorski. After releasing a National Economic Council Report in April 2000 which outlined the science and policy reasons for implementing a federal workers comp system for nuclear weapons workers, Representative Whitfield, and many cosponsors, introduced HR 4398, a comprehensive bill which covers radiation, beryllium silica, hazardous chemicals and heavy metals.

New Bill/Senate Amendment: The Udall of Colorado bill incorporates the provisions of the Energy Employees Occupational Illness Compensation Act of 2000, which was adopted on the Senate floor as an amendment to the Defense Authorization Act for fiscal year 2001. It provides for payment by the Federal government of lost wages and/or medical costs for employees who died or whose health was damaged by exposure to beryllium, radiation or silica while working for the defense of the United States through defense nuclear programs of the Department of Energy (DOE) and its predecessor agencies. These health hazards were special to DOE and to nuclear weapons, which require both beryllium-containing components and radioactive materials and drilling of tunnels under the Nevada Test Site.

The compensation in this bill is modeled on the coverage federal employees can receive in the Federal Employees Compensation Act. Compensation decisions are to be based on science and expert judgment, and dose information is to be used where it is known or can be estimated. As with FECA, compensation under this bill would be mandatory spending and benefits are tax exempt. CBO has scored Title 35 of the Senate's Defense Authorization bill at $2.3 billion over 5 years and $3.7 billion over 10 years.

Three federal agencies would be involved in the program. The Department of Labor, which already administers FECA, would handle the administrative processing of claims, appeals, and payments. The Department of Health and Human Services (HHS), which currently oversees radiation and beryllium health effects research at DOE sites, would oversee the scientific decisions that must be made. The DOE, which has the detailed information on and access to workers, is to play an advocacy role in informing workers of the programs and facilitating information flow to the Department of Labor.

Hazards and Coverage: Beryllium: Beryllium is a non-radioactive metal that can cause an allergic reaction that ,severely scars the lungs. Beryllium lung damage has unique characteristics and can be traced specifically to beryllium exposure. The first sign of the allergic reaction is beryllium sensitivity, which sometimes progresses to chronic beryllium disease. Beryllium sensitivity must be medically monitored, but is not disabling. Chronic beryllium disease can disable or kill. Under Title 35 and this bill:

Workers who can show beryllium sensitivity (or who have chronic beryllium disease but are not disabled) would be eligible to have the medical costs of monitoring their condition paid by the Federal government.

Workers who contract chronic beryllium disease and who die or are disabled could also receive lost wage benefits, in addition to medical costs.

Radiation: Radiation in high doses has been linked to elevated rates of some types of cancer. Unlike beryllium illness, it is not possible to look at a tumor and know for sure that radiation in the workplace caused it. Scientists have determined the doses at which certain cancers in workers in certain age groups can be confidently be said to be radiation caused. These data on radiation dose and cancer form the basis in the bill for compensating workers who have adequate dose records, as follows.

Workers who have a specified radiogenic cancer that is determined to be work-related under HHS guidelines, but who are not disabled, could have their medical costs of their cancer treatment paid by the Federal government.

Workers who have a work related cancer, as established under the HHS guidelines, and who are disabled or dead, could also receive lost wage benefits, in addition to medical costs.

Silicosis: Miners at the Nevada Test site drilled underground tunnels through hard rock for the placement of nuclear weapons devices that were subsequently tested. DOE failed to adequately control exposure to silica dust and 20 percent of the workers screened by a DOE medical screening program at the Nevada Test Site have found silicosis, a disease that causes irreparable scarring of the lungs.

Workers with Non-Existent Radiation Records. Many worker dose records in DOE are flawed, but this amendment requires HHS to estimate dose, where records exist and it is feasible to do so. In some cases, though, it is not feasible to reconstruct what radiation dose a group of workers received, even though it is clear from their job types that their health may have been endangered by radiation. For these special exposure situations, the bill provides that workers can be placed by the HHS into a `special exposure cohort' that can be compensated for certain types of cancer enumerated in the amendment. Members of the `special exposure cohort' are eligible for the same compensation as workers in the previous section. Because of the unmeasured, probably large, internal radiation doses which they received, and the lack of monitoring, protection, or even warning given by DOE to them, certain employees at the DOE gaseous diffusion plants are placed in the `special exposure cohort' by law under the bill. It was the public outcry over the deliberate deception of these employees by the DOE and its contractors concerning workplace radiation risks that led the Administration to propose the bill on which Title 35 and this bill are patterned.

Lump Sum Payment Option. All of the above classes of workers, if they are disabled, and their survivors, if the workers die before being compensated, would be able to choose a one-time $200,000 lump plus medical benefits in lieu of lost wages and ongoing medical benefits described above. This option is intended mostly for elderly, retired workers, or for survivors of deceased workers.

Administrative Provisions. There are provisions in the bill against receiving lost wages or lump sum payments for more than one disability or cause of death. Benefits under other Federal or state worker compensation statutes for the same disability or death would be deducted from any benefits under the bill. Title 35 and the bill also contain language making payment under the amendment the exclusive remedy for all liability by DOE and its contractors. For vendors, acceptance of payment under this program would waive the right to sue, but employees who seek court relief would have to file within 180 days of the onset of a beryllium or radiation related disease.

Other Toxic Substances: The bill does not provide federal compensation for health effects from exposure to other toxic substances in the DOE workplace, but does authorize DOE to work with States to get workers with these health effects into State worker compensation programs. DOE will maintain an office to review claims and advise contractors not challenge claims deemed meritorious by DOE.