Alliance of Nuclear Worker Advocacy Groups

634 Pershing Street

Craig, CO 81625

970-824-2260

July 30, 2004

VIA FAX

The Honorable John McHugh

2333 Rayburn House Office Building

Washington, DC 20515

Dear Congressman McHugh:

The Alliance of Nuclear Worker Advocacy Groups (ANWAG) urges the Conferees to retain, intact, the Bunning-Bingaman amendment to the Energy Employee Occupational Illness Compensation Program Act (EEOICPA) that was included in Sections 3151-3156 of the FY 05 Defense Authorization Act. ANWAG is an alliance of groups working to reform EEOICPA composed of workers and survivors in Colorado, Tennessee, and Missouri. Our groups have carefully monitored the enactment of EEOICPA. This letter explains the basis for our support and responds to DOE’s criticisms of the Bunning Bingaman Amendment.

The Bunning-Bingaman amendment goes a long way to honoring a Congressional commitment made 4 years ago to nuclear weapons plant workers made sick while employed in the production of the nation’s nuclear deterrent (and its cleanup). The amendment, passed on June 16, by a unanimous voice vote in the United States Senate, contains reforms correcting many of the problems with EEOICPA.

This legislation removes key bottlenecks in claims processing, improves the quality of the decisions, and establishes a willing payor for all valid EEOICPA claims--a key flaw identified by the GAO report in their recent report to Congress. This is a serious issue for up to 50% of the sick workers nationwide, and affects a number of workers in many states including CO, IA, OH, KY, MO, NV, NM, ID and SC. Some of the workers with a positive finding by the Department of Energy's (DOE) panel of physicians will be left to pursue their claim in an adversarial state workers compensation forum. It would be necessary to re-prove, by a preponderance of evidence, before a state tribunal, that the illness was attributable to the workplace exposures-even though the Department of Energy has already validated that illness claim is genuinely work related. DOE contractors, insurers or exclusive state funds will assert their legal defenses, and the chances that the worker or their survivor would receive just compensation is close to zero.

The Bunning/Bingaman amendment (a bi-partisan effort, as was EEIOCPA) would allow the claimant to collect the compensation due in a timely manner by transferring the responsibility for processing EEOICPA Subtitle D claimants from the Department of Energy to the Department of Labor (DOL). The Department of Labor has an excellent track record for processing the claims under Subtitle B, as well as being responsible for 4 additional compensation programs. They are experts in establishing claims valuation for disability benefits, and they have adjudicative panels to resolve disputes. Notwithstanding the Administration’s formal position asserted in conference, Labor Secretary Chao has recently stated in the Paducah Sun (July 18) that her department will "carry out" whatever Congress requires. DOL past performance indicates that they are diligent and compassionate in getting the deserved compensation to the claimants.

The Department of Energy's most recent proposal to fix EEOICPA (this is the fourth “get well” plan submitted to Congress) was generated in reaction to the Senate enacted legislation. DOE’s plan to reinvent itself is based on (a) expertise that DOE (and it contractor) lacks, (b) infrastructure that DOE lacks, and (c) a track record of implementing plans that have never materialized. NBC Nightly News had it right when it described DOE’s implementation of EEOICPA as a “Fleecing of America”.

After saying for three years that it needs to “study” the willing payor problem and “study” benefit levels, DOE now declares, in the face of the Bunning-Bingaman amendment, that a solution is readily at hand. But in its haste to come up with this latest “plan”, DOE is proffering a willing payor approach which is unproven, untested, and lacks any assurances it will work. To be a willing payor, DOE says it will now reimburse states, insurers, and former contractors and subcontractors. But this requires agreements from former contractors, subcontractors, insurers and states compensation programs to serve as willing payors. DOE knows it cannot legally compel or guarantee that any of these entities will agree to be willing payor on terms and conditions that will assure non-adversarial claims resolution and prompt payments.

While it is true that DOE's contracts with their self-insured contractors allows for reimbursement by DOE for workers compensation costs, valid claims are still being contested by its current contractors at the state level. This raises real credibility questions about the ease with which DOE can even make its current contractors serve as willing payors. All 28 claims from Rocky Flats workers approved under Subtitle D are being contested by the contractor, according to DOE data. DOE’s latest “plan” does not address what it will do if insurers won’t accept responsibility to pay claims if their reimbursement is subject to appropriations.

DOE asserts that they can process the backlog of claims by 9/07. In February 2003, Secretary Abraham and Deputy Secretary McSlarrow both DOE projected DOE would move 100 claims per week through the physicians panel by August 2003. In July 2003, DOE promised it would get all claims up to the physicians Panels by August 2004 with added funding, DOE got the money, but is only 20% of the way to that goal. DOE’s projections lack credibility. They are simply invented to get through the crisis-of-the-day.

DOE says they are concerned about the complexity of the DOL's proposed payment schedule (using individual state workers compensation plans). ANWAG agrees that it would have been better to have a standardized plan, such as Federal Employees Compensation Act (FECA) or the Longshore & Harbor Workers Act as a basis for benefit calculations. And if the House would consider this, we would be pleased to support the use of a uniform benefit level. However, the use of state payment schedules, while more complex, is not an insurmountable problem and is one DOE already faces to the extent it has willing payors. The Bunning-Bingaman amendment calls upon individual state workers compensation officials to assist DOL in developing the schedule. If DOE were the willing payor, DOE would still have to calculate the same benefit levels if it were the willing payor. This criticism of the Bunning Bingaman amendment is a double standard in DOE’s position. How is it possible that DOE is qualified to determine the levels of benefits that are appropriate for reimbursement, but DOL cannot pull this off because it is too complex?

DOE says there will be a $300 million shortfall if DOL has to run the program. This is a specious argument. If DOE were the willing payor it would still have to come up with the exact same amount of appropriated funds for benefits as the DOL. Moreover, DOE has administrative costs that are twice as high as DOL, according to the Senate Finance Committee analysis. If DOL runs the program, one option is to have DOE reimburse DOL through a “charge back”. DOE already reimburses the DOL for the costs of federal employee worker compensation claims under FECA. We would prefer mandatory spending to fund benefits.

The amendment also demands that site profiles be completed. The Department of Energy promised this in 2003 as its first “get well” plan, and did not deliver. When appropriators required these profiles, DOE ignored this Congressional directive. The panel of physicians would have operated much more efficiently and produced higher quality decisions had the information of the chemicals and toxic materials used on each major site. GAO recommended site profiles in its report. DOL agrees in its June 17 comments to Congress, particularly if these profiles focused on commonly used substances. With higher quality decisions, there will also be fewer appeals and faster claims processing. Site profiles will provide a positive return on investment. ANWAG issued a white paper on why site profiles are value added.

The Department of Energy has had nearly 4 years to implement this program. It has received $95,000,000 yet only 10 people have been assisted in obtaining benefits. It would be a great injustice to the sick workers and their families if Congress were to allocate additional funding to DOE and allow the current program to continue as is. The Senate's solution is the right one. The DOL is able to accept transfer of Subtitle D and we have no doubt about their expertise, their infrastructure or their track record.

The Alliance of Nuclear Worker Advocacy Groups strongly and respectfully urges you to do all in your power to keep this legislation intact as part of the FY 05 Defense Authorization Act. Please contact me at 970-824-2260, if you have any questions.

Sincerely,

Terrie Barrie

For the Alliance of Nuclear Worker Advocacy Groups

Cc: Hon. Duncan Hunter, Chairman, House Armed Services Committee

Hon. Ike Skelton, Ranking Member, House Armed Services Committee

Hon. James Sensenbrener, Chairman, House Judiciary Committee

Hon. John Conyers, Ranking Member, House Judiciary Committee

Hon. John Boehner, Chairman, House Education and Workforce Committee

Hon. George Miller, Ranking Member, House Education and Workforce Committee