Weapons of Mass Destruction (WMD)

Thank you, Mr. Chairman and Members of the Subcommittee.

I appreciate having this opportunity to testify today in support of legislation to provide an effective system of compensation and care for current and former nuclear-weapons workers made sick as a result of their on-job exposure to radiation, beryllium, and other dangers.

Earlier this year, the House adopted the Whitfield amendment to the Defense Authorization bill. That amendment clearly stated that Congress needs to act this year to make good on the promise of a fairer deal for these people who helped America win the Cold War. I supported that amendment because that is my view of the matter.

This is a very important matter for our country. It's particularly important for many Coloradans because our state is home to the Rocky Flats site, which for decades was a key part of the nuclear-weapons complex. Now that site's military mission has ended, and we are working hard to have Rocky Flats cleaned up and closed.

But while we work to take care of the site, we need to work just as hard to take care of the people who worked there.

The people who worked at Rocky Flats and the other nuclear-weapons sites were part of our country's defense just as much as those who wore the uniform of an armed service. They may not have been exposed to hostile fire, but they were exposed to radiation and beryllium and other very hazardous substances -- and because of that some have developed serious illnesses while others will develop such illnesses in the future.

Unfortunately, they haven't been eligible for veterans' benefits and have been excluded from other federal programs because they technically worked for DOE's contractors - and for far too long the government was not on their side. That has changed, I'm glad to say - the Department of Energy has reversed its decades-old policy of opposing workers claims.

Now we in the Congress need to finish the job by passing legislation. And we need to do the job right.

The importance of this was well put by Len Ackland, a constituent of mine who is an expert on the subject. As he put it in an article in the DENVER POST, "The shape of such legislation will determine whether or not this nation, through its political leadership, will finally accept responsibility for the physical harm to thousands of the 600,000 workers recruited to fight the cold war by producing nuclear weapons."

I very much agree with that judgment, Mr. Chairman. In the past, the government has not done all it should, and has not accepted its full responsibility.

In that connection, I want to draw your attention to testimony prepared for this hearing by Dr. Lee Newman.

Dr. Newman is a Professor at the University of Colorado medical school and also is the Director of the Division of Environmental and Occupational Health Sciences at the National Jewish Medical and Research Center in Denver. As you know, while he was on the original witness list for this hearing he is unable to be here today. I know your staff has received his prepared statement, and I ask that it be included in the hearing record in full.

As noted in his statement, for the past 16 years Dr. Newman has focused his research, clinical practice, and teaching on the health of people exposed to dust and fumes of beryllium - including people who would be covered by the legislation we are discussing today.

In his prepared statement, Dr. Newman says these people - nuclear-weapons workers - were "failed by the Federal Government in at least eight ways," and he lists them:

Mr. Chairman, I think this expert testimony deserves to be given great weight and I suggest that it will lead you - as it has led me - to a fuller understanding of the importance of this legislation.

And, Mr. Chairman, when you consider that testimony you can understand why I was encouraged when the House adopted the Whitfield amendment and went on record as saying that now is the time the Congress to do the right thing and to accept our responsibility for these workers.

By adopting that amendment, the House signaled that we recognize this is a matter of high priority and that it is important for Congress to pass legislation this year to create an efficient, uniform, and adequate system of compensation for these workers.

Since then, Mr. Chairman, both chambers have completed initial action on the defense authorization bill - and as you know that bill as passed by the Senate includes a separate title, Title 35, that would set up a compensation system for these workers.

That title, and the other differences between the House and Senate versions of the defense authorization bill, are now being considered by a conference committee.

I am sure that this Senate-passed legislation could be further refined. But we are rapidly nearing the end of this Congress, and time is of the essence.

That is why, along with more than 100 of our colleagues, I have strongly urged the House's conferees to agree to this part of the Senate bill.

Of course, as everyone here understands, that is not the only legislation on this subject. Along with other Members who are testifying today, I am a cosponsor of several bills, notably H.R. 4398, introduced by our colleague from Kentucky, Mr. Whitfield.

In addition, along with 16 colleagues, last week I introduced H.R. 5189, which includes the provisions of Title 35 of the Senate's version of the defense authorization bill.

I did that, Mr. Chairman, so that you and the other members of the Judiciary Committee would have full opportunity to review those provisions - and, I hope and urge, that you will agree that they are appropriate for inclusion in the conference report on the defense authorization bill.

I remain convinced that having the Senate-passed legislation included in the conference report on the defense authorization bill would be the very best way to take the essential first step toward the vital goal of doing justice to these workers.

That is because I think the defense authorization bill is a bill that is very likely to pass and to be signed into law. The Senate's approval of the language of Title 35 indicates that the Senate is prepared to accept a conference report that includes those provisions - and I think they would enjoy very broad support in the House as well.

In short, I think retaining the Senate language in the defense conference report presents the best opportunity to achieve enactment this year of an essential first step toward providing a long-overdue measure of justice.

I know that more will remain to be done, but enactment of those provisions will lay a good foundation on which to build further in the near future - something that I hope we can do beginning next year.

Thank you, Mr. Chairman.

DIGEST OF PROVISIONS OF H.R. 5189

AND

TITLE 35 OF SENATE AMENDMENT TO H.R. 4205

Title: Energy Employees Occupational Illness Compensation Act of 2000

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% 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 DO