May 1, 2000 Discussion Draft
A BILL
S. __________
H.R. ____________
Nuclear Weapons Workers, Veterans And Residents Compensation and Health Act (NWWVARCHA) of 2000
Be it enacted, by the United States Congress assembled, an Act, to be designated as the Nuclear Weapons Workers and Residents Compensation and Health Act (NWWVARCHA) of 2000.
To establish an independent Due Process compensation program for present and former DOE and contractor employees, Downwinders, Atomic Veterans, to provide Equal Protection for all United States residents persons suffering illnesses or conditions related in whole or in part to nuclear weapons production and testing; to apologize for their exposures and suffering; and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. CONGRESSIONAL FINDINGS AND PURPOSES; SHORT TITLE.
(a) Congress finds and declares that there are a significant number of Americans living today who are disabled due to diseases arising out of their employment or exposures from nuclear weapons production; that there are a number of nuclear weapons workers, veterans and residents (Downwinders) whose deaths were due to nuclear weapons production related diseases; that the Veterans Administration has compensated only some 50 of 18,000 affected Atomic Veterans; and that few States provide benefits for death or disability due to nuclear weapons production related diseases to workers, Downwinders or their surviving dependents. It is, therefore, the purpose of this subchapter to provide benefits, to workers, veterans and residents who are totally disabled or sick due to nuclear weapons production related diseases and to the surviving dependents of those whose deaths were due to such diseases; and to ensure that in the future adequate benefits are provided to nuclear weapons plant workers, veterans and Downwinders in the event of their death or total disability due to nuclear weapons plant related illnesses. The United States Government hereby sincerely apologizes to all Americans who have been hurt by nuclear weapons production and testing activities, resolutely determines never again to wreak such suffering upon its own people, resolves to pay just and full compensation and lifetime medical benefits, and to assure that those responsible are held accountable.
(b) This subchapter may be cited as the Nuclear Weapons Workers, Veterans and Residents Compensation Act (NWWVARCHA) of 2000.
(c). This legislation is intended as a entitlement to assure justice for injured workers, veterans and residents and not as a welfare benefit, a Department of Energy program, or a Veterans Administration benefit. Therefore, upon enactment, this subchapter is to be codified in 29 U.S.C. (Labor) and not in 42 U.S.C. (Public health and welfare).
SECTION 2. APPLICABILITY OF LONGSHORE AND HARBOR WORKERS’ COMPENSATION PROCEDURES The provisions of Public Law 803, 69th Congress (44 Stat. 1424, approved March 4, 1927), as amended (33 U.S.C. 901 et seq.), and as it may be amended from time to time (other than the provisions contained in sections 1, 2, 3, 4,, 8, 9, 10, 12, 13, 29, 30, 31, 32, 33, 37, 38, 41, 43, 44, 45, 46, 47, 48, 49, 50, and 51 thereof) (33 U.S.C. 901, 902, 903, 904, 908, 909, 910, 912, 913, 929, 930, 931, 932, 933, 937, 938, 941, 943, 944, 945, 946, 947, 948, 948a, 949, 950), shall (except as otherwise provided in this subsection or by regulations of the Secretary and except that references in such Act to the employer shall be considered to refer to the trustees of the fund, as the Secretary considers appropriate and as is consistent with the provisions of section 9501(d) of title 26), be applicable to each operator of a nuclear weapons facility with respect to death or disability due to workers and Downwinders’ diseases arising out of nuclear weapons facilities, or with respect to entitlements established in this Act. In administering this part, the Secretary of Labor is authorized to prescribe in the Federal Register such additional provisions, not inconsistent with those specifically excluded by this subsection, as he deems necessary to provide for the payment of benefits by such operator to persons entitled thereto as provided in this part and thereafter those provisions shall be applicable to such operator.
SECTION 3. DEFINITIONS. For purposes of this subchapter -
(a) The term 'dependent' means:
(1) a child as defined in subsection (g) of this section without regard to subparagraph (2)(B)(ii) thereof; or
(2) a wife who is a member of the same household as the miner, or is receiving regular contributions from the miner for her support, or whose husband is a miner who has been ordered by a court to contribute to her support, or who meets the requirements of section 416(b)(1) or (2) of title 42. The determination of an individual's status as the 'wife' of a miner shall be made in accordance with section 416(h)(1) of title 42 as if such miner were the 'insured individual' referred to therein. The term 'wife' also includes a 'divorced wife' as defined in section 416(d)(1) of title 42 who is receiving at least one-half of her support, as determined in accordance with regulations prescribed by the Secretary, from the miner, or is receiving substantial contributions from the miner (pursuant to a written agreement), or there is in effect a court order for substantial contributions to her support from such miner.
_(b) The term “nuclear weapons related disease” means any cancer, heart disease, depression, thyroid disease, heavy metal poisoning, lung disease, including respiratory and pulmonary impairments, arising out of nuclear weapons production and testing.
(c).The term 'Secretary' means the Secretary of Secretary of Labor.
(d) The term 'miner' means any individual who works or has worked in or around a uranium mine or uranium preparation facility in the extraction or preparation of uranium. Such term also includes an individual who works or has worked in uranium mine construction or transportation in or around a coal mine, to the extent such individual was exposed to uranium dust as a result of such employment.
(e) The term 'widow' or ‘widower’ includes the wife or husband living with the decedent at the time of his death, or living apart for reasonable cause or because of desertion, or who is not married and living together as life partners, without respect to any provision of state law. Such term also includes a 'surviving divorced spouse' who for the month preceding the month in which the decedent died, was receiving at least one-half of his/her support, as determined in accordance with regulations prescribed by the Secretary, from the decedent, or was receiving substantial contributions from the miner (pursuant to a written agreement) or there was in effect a court order for substantial contributions to her support from the miner at the time of his death.
(f) The term 'total disability” means that one or more nuclear weapons related diseases prevents him or her from engaging in gainful employment requiring the skills and abilities comparable to those of any employment in which he or she previously engaged with some regularity and over a substantial period of time.
(g) The term 'child' means a child or a step-child who is -
(1) unmarried; and
(2)(A) under eighteen years of age, or
(B)(I) under a disability as defined in section 423(d) of title 42,
(ii) which began before the age specified in section 402(d)(1)(B)(ii) of title 42, or, in the case of a student, before he ceased to be a student; or
(C). a student. The term 'student' means a 'full-time student' as defined in section 402(d)(7) of title 42, or a 'student' as defined in section 8101(17) of title 5. The determination of an individual's status as the 'child' of the decedent, widow or widower as the case may be, shall be made as if such widow or widow were the 'insured individual' referred to therein.
(h) The term 'fund' means the Nuclear Weapons Worker, Veterans and Resident Disability Trust Fund established by section _______ of title 26.
(I) The term “decedent” means a deceased person whose death is attributable in whole or in part to nuclear weapons related diseases.
(j) ‘beryllium illness’ means any of the following conditions:
(1) Beryllium Sensitivity, established by an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells;
(2) Chronic Beryllium Disease or sensitivity, established by--
(A) beryllium sensitivity, as defined in subparagraph (A), or
(B) lung pathology consistent with Chronic Beryllium Disease, such as–
(I) a lung biopsy showing granulomas or a lymphocytic process consistent with Chronic Beryllium Disease,
(II) a computerized axial tomography scan showing changes consistent with Chronic Beryllium Disease, or
(III) pulmonary function or exercise testing showing pulmonary deficits consistent with Chronic Beryllium Disease; or
(3). any injury or illness sustained as a sequelae or consequence of a beryllium illness as defined in subparagraph (1) or (2) of this paragraph;
(k) ‘Department of Energy’ includes the predecessor agencies of the Department of Energy;
(l) ‘Department of Energy facility’ means any building, structure, or premises, including the grounds upon which they are or were located, in which operations are or were conducted by, or on behalf of, the Department of Energy and with regard to which the Department of Energy has or had a proprietary interest or has or had entered into a contract with an entity to provide management and operating, management and integration, testing, research, environmental remediation or uranium, beryllium or other feed material;
(m) ‘radiation’ means ionizing radiation in the form of alpha or beta particles or gamma rays.
(n) “hazardous waste” and “toxic substance” shall have the same meaning as under the Toxic Substances Control Act and the Comprehensive Environmental Resource Conservation and Liability Act.
SECTION 4. INTERIM PRESUMPTION. For a period of no less than ten years after enactment of this Act, there shall be an irrebuttable “interim presumption” of entitlement to full benefits under this Act in the case of a worker, veteran, resident, child, student, widow, widower or person who was or whose decedent was:
(a) employed in or around a nuclear weapons plant, testing site, uranium mine, uranium mill, uranium tailings site, exposed to fallout as an Armed Service member, or lived in a surrounding or affected community, and qualifies under at least one of the following conditions:
(1) was found upon medical examination to have levels of radiation or toxic substances or hazardous wastes in his or her body that are at least 2 standard deviations above the mean on hair, urine, blood, biopsy or other biological samples and associated with nuclear weapons production and testing;
(2) suffered two or more heart attacks before age 50;
(3) suffered one or more strokes before age 55;
(4) suffered loss of at least five IQ points after toxic exposures;
(5) suffered cancer or required surgery or chemotheraphy due to cancer;
(6) was found to have been exposed to toxics from nuclear weapons production activities with resulting disease patterns;
(7) suffers from chemical encephalopathy or chemically induced depression;;
(8) has dosimetry or medical records said to have been “lost” or “misplaced” or which have been materially altered;
(9) has biopsy samples, surgical removals or other live or dead body parts that have been unaccountably destroyed, removed or lost while under the care, custody or controls of DOE, its contractors or hospitals and physicians under their sphere of control or influence;
(10) suffers from chronic beryllium disease or sensitivity or other lung disease related to toxic exposures;
(11) was hospitalized at a facility conducting experiments for the AEC, NASA, ERDA or DOE without proper knowing and voluntary consent;
(12) died of cancer, heart disease, or stroke or its sequelae.
SECTION 5. LIFETIME MEDICAL CARE AND BENEFITS.
(a) All persons entitled to benefits under this Act shall be entitled to lifetime medical care, to be paid by the Fund. Health care will be provided by independent health care providers with no ties, directly or indirectly, to the organizations taxed to establish and maintain the Fund. Health care will include objective medical testing and shall be used by the Secretary of Labor to propose refined standards for entitlement to benefits to be enacted by Congress after the expiration of ten years.
(b) All persons entitled to benefits under this Act shall be entitled to payment of $250,000 for each worker, miner, resident, decedent or survivor;
(c). All persons entitled to benefits under this Act shall, in addition, be entitled to compensation at the current monthly rate provided under the Black Lung Benefits Act or Federal Employee Compensation Act, whichever is greater.
(d) Benefits paid under this act shall not be taxable as income.
SECTION 6. PROMULGATION OF FUTURE MEDICAL STANDARDS; TIME FOR FILING OF CLAIMS; RECONSIDERATION OF DENIED CLAIMS.
(a) After the expiration of ten years, after consultation with medical professional and other persons and organizations, the Secretary of Labor shall promulgate, subject to notice and comment rulemaking, proposed regulations to refined standards for entitlement to benefits under this Act.
(b) There shall be no statute of limitations or repose for filing of claims under this Act. Any claim denied under this Act may be reconsidered at any time based upon new or substantially new evidence.
SECTION 7. FIELD OFFICES; INFORMATION AND OUTREACH; “PLAIN ENGLISH” AND USE OF NATIVE AMERICAN AND ALASKA NATIVE LANGUAGES
(a) The Secretary of Labor shall establish and operate such field offices as may be necessary to assist workers, residents and survivors in the filing and processing of claims under this subchapter. Such field offices shall, to the extent feasible, be reasonably accessible to such workers, residents and survivors. The Secretary, in connection with the establishment and operation of field offices, may enter into arrangements with other Federal departments and agencies, and with State agencies, for the use of existing facilities operated by such departments and agencies. Where the establishment of separate facilities is not feasible the Secretary may enter into such arrangements as he deems necessary with the heads of Federal departments, agencies, and instrumentalities and with State agencies for the use of existing facilities and personnel under their control.
(b) The Secretary of Labor shall disseminate to all interested persons and groups, and shall undertake, through public service television and radio advertising, the Internet, E-mail, 800 numbers, posters, appropriate organizations, groups, and coal mine operators, to notify individuals who are likely to have become eligible for benefits by reason of such changes. Individual assistance in preparing and processing claims shall be offered by the Secretary of Health and Human Services and the Secretary of Labor and provided to potential beneficiaries.
(c). All regulations, public outreach information, decisions, notifications of appeal rights and other writings produced by the Department of Labor pursuant to this Act will be written in “Plain English,” with consultation with appropriate linguists, writers and educators, to assure maximum understanding by the affected persons. The Secretary shall use Social Security disability regulations as a model for “Plain English,” including its use of questions and answers.
(d) All regulations, public outreach information, decisions, notifications of appeal rights and other writings produced by the Department of Labor pursuant to this Act will be written and distributed by radio in the appropriate Native American and Alaska Native languages, with consultation with Tribal members, Tribal councils, linguists, writers and educators, to assure maximum feasible understanding by the affected persons of their rights and remedies.
(e) There are authorized to be appropriated for the purposes of subsections (a) and (b) of this section such sums as may be necessary.
SECTION 8.RIGHT TO HEARINGS, APPEALS, JUDICIAL REVIEW AND SUBPOENAS; APPLICABILITY OF THE ADMINISTRATIVE PROCEDURE ACT; TRANSLATORS; HEARING LOCATIONS; REASONABLE ACCOMMODATION; STATEMENT OF REASONS; REASONABLE ATTORNEY FEES, COSTS AND EXPENSES; CRIMINAL PENALTIES
(a) Any person denied benefits under this Act is entitled to a hearing before an Administrative Law Judge of the United States Department of Labor, appointed pursuant to 5 U.S.C. § 3105, in the same manner as hearings under the Longshore and Harbor Workers Compensation Act (LHWCA) and Black Lung Benefits Act.
(b) Any person denied benefits after an Administrative Law Judge hearing shall have the right to an expedited review by the Department of Labor Benefits Review Board.
(c). Any person denied benefits by the Department of Labor Benefits Review Board shall have the right to appeal to the Circuit Court of Appeals pursuant to the Administrative Procedure Act.
(d) All of the provisions of the Administrative Procedure Act shall apply to hearings, appeals, rulemaking and public information under this Act: sections 551 to 559 and sections 701 to 706 of title 5 shall not apply to the making of any order, notice, or decision made pursuant to this chapter, or to any proceeding for the review thereof.
(e) The Secretary shall have and use full subpoena power to assist claimants in obtaining discovery and securing the attendance of witnesses, documentary, electronic and physical evidence at trial. In the event of evidence purported to be “classified,” the Administrative Law Judge and the Benefits Review Board shall have the power to order declassification or to require that such information shall be evaluated in camera. In no event may the Department of Energy require or suggest that a plaintiff’s attorney obtain a security clearance in order to review discoverable or admissible evidence. In the event of contumacy of a person issued a subpoena, the Secretary shall apply to the United States District Court nearest the contumacious witness to seek an order requiring compliance with the subpoena and shall be authorized to seek Contempt of Court sanctions against recalcitrant witnesses, including the Department of Energy and any of its employees, instrumentalities or contractors, or those acting in concert with them.
(f) Any claim, hearing or appeal pursuant to this Act involving either a claimant or witness whose primary language is not English shall be assisted with translation into the appropriate language.
(g) The Secretary of Labor shall utilize the assistance of the Department of those Interior Administrative Law Judges who decide Native American probate cases through the judicial loan program of the Office of Personnel Management to assure that independent Administrative Law Judges familiar with the culture of Native Americans will be available to conduct hearings in a sensitive and appropriate manner.
(h) All hearings required by this Act shall be conducted in a public place within 75 miles of the worker’s current residence at the time of the hearing, provided further, that the Administrative Law Judge will reasonably accommodate the disability of any claimant or witness in the scheduling and location of hearings.
(I) All hearings shall be open to the public, and subject to written consent of the claimant and regulation by the Administrative Law Judge, shall be open to coverage by electronic news media.
(m) Any individual whose claim for benefits under this subchapter is denied shall receive from the Secretary a written statement of the reasons for denial of such claim, and a copy of the administrative record and transcript.
(n) (1) Prevailing claimants’ attorneys shall be awarded a fee to be paid from the Fund based upon their reasonable hourly rate and the hours reasonably incurred in prosecution of the claim. Prevailing claimants or their attorneys shall be entitled to receive full payment for expenses and costs (including expert witness fees and expenses) reasonably incurred by either the attorney or the claimant or anyone else acting to assist the claimant. The Secretary of Labor shall order fee “multipliers” for high quality legal work that is successful in establishing the entitlement of a claimant to benefits, not to exceed three (3) times the “lodestar” amount (the product of the reasonable hourly rate and the number of hours reasonably expended on the case).
(2) No contingency fee shall be charged for representation of a claimant under this act. Claimants may however pay attorneys to work on their pending claims subject to a full refund upon receipt an award of attorney fees from the Fund, subject to advance approval by the Secretary of Labor of the fee arrangement.
(3)
A person who receives any fee, gratuity, or other consideration on account
of services rendered as a representative of a claimant, unless the consideration
is approved by the Deputy Commissioner, Administrative Law Judge, Board,
or court, or who makes it a business to solicit employment for a lawyer,
or for himself, with respect to a claim or award for compensation under
this Act, shall, upon conviction thereof, for each offense be punished
by a fine of not more than $1,000 or be imprisoned for not more than one
year, or both. (4) Attorney
fees ordered under this provision are nonrefundable and nonreimbursable.
DOL payment from the fund of attorney fees shall be subject to the provisions
of the Prompt Payment Act.
(o) The
BRB, Office of Administrative Law Judges and Deputy Commissioner shall
keep and publish on the Internet detailed statistical on the time
it takes to decide claims and fee petitions under this Act, and to disburse
funds to claimants and their attorneys, showing for each office, judge
and type of case the time that is taken to reach decisions after the close
of the record.
SECTION 9.
MEDICAL EVIDENCE AND EXAMINATIONS.UTILIZATION OF PERSONNEL
AND PROCEDURES; EVIDENCE REQUIRED TO ESTABLISH CLAIM; MEDICAL EVIDENCE;
AFFIDAVITS; AUTOPSY REPORTS; REIMBURSEMENT OF EXPENSES In carrying
out the provisions of this part, the Secretary shall to the maximum extent
feasible (and consistent with the provisions of this part) utilize the
personnel and procedures he uses in determining entitlement to disability
insurance benefit payments under the Black Lung Benefits Act and Longshore
and Harbor Workers Compensation Act (LHWCA) , but no claim for benefits
under this part shall be denied solely on the basis of the results of a
chest roentgenogram. In determining the validity of claims under this part,
all relevant evidence shall be considered, including, where relevant, medical
tests such as blood gas studies, X-ray examination, electrocardiogram,
pulmonary function studies, or physical performance tests, and any medical
history, evidence submitted by the claimant's physician, declarations pursuant
to 28 U.S.C. § 1746, and in the case of a decedent, other appropriate
affidavits of persons with knowledge of the person's physical condition,
and other supportive materials. Where there is no medical or other relevant
evidence in the case of a deceased person, such declarations, from persons
not eligible for benefits in such case, shall be considered to be sufficient
to establish that the person was totally disabled due to nuclear weapons
related diseases or that his or her death was due in whole or in part to
nuclear weapons related diseases. In any case, in which there is other
evidence that a person or decedent has a pulmonary or respiratory impairment,
the Secretary shall accept a board certified or board eligible radiologist's
interpretation of a chest roentgenogram which is of a quality sufficient
to demonstrate the presence of beryllium or other lung disease submitted
in support of a claim for benefits under this subchapter if such roentgenogram
has been taken by a radiologist or qualified technician, except where the
Secretary has reason to believe that the claim has been fraudulently represented.
In order to insure that any such roentgenogram is of adequate quality to
allow it for diagnostic purposes, and in order to provide for uniform quality
in the roentgenograms, the Secretary of Labor may, by regulation, establish
specific requirements for the techniques used to take roentgenograms of
the chest. Unless the Secretary has good cause to believe that an autopsy
report is not accurate, or that the condition of the decedent is being
fraudulently misrepresented, the Secretary shall accept such autopsy report
concerning the presence of a nuclear weapons related disease and
the stage of advancement of that disease. Claimants under this part shall
be fully and promptly reimbursed for reasonable medical expenses incurred
by them in establishing their claims. For purposes of determining total
disability under this part, the provisions of subsections (a), (b), (c),
(d), and (g) of section 221 of the Black Lung Benefits Act (42 U.S.C. 421(a)
to (d), (g)) shall be utilized where applicable. The provisions of sections
204, 205(a), (b), (d), (e), (g), (h), (j), (k), (l), and (n), 206, 207,
and 208 of the Social Security Act (42 U.S.C. 404, 405(a), (b), (d), (e),
(g), (h), (j), (k), (l), and (n), 406, 407, 408) shall be utilized where
applicable under this part with respect to a worker, resident, miner, widow,
child, parent, brother, sister, or dependent, as if benefits under this
part were benefits under title II of such Act (42 U.S.C. 401 et seq.).
Each worker, resident, miner or person who files a claim for benefits under
this subchapter shall upon request be provided an opportunity to substantiate
his or her claim by means of a complete medical evaluation.
SECTION 10.
“FUND” DEFINED; LIABILITY OF OPERATORS TO UNITED STATES FOR REPAYMENTS
TO FUND; PROCEDURES APPLICABLE; RATE OF INTEREST
a) For purposes
of this section, the term 'fund' has the meaning set forth in section 3(h)
of this Act.
(b) (1) Operators
of nuclear weapons facilities, test sites, uranium mines, uranium mills
and uranium tailing facilities and beryllium vendors shall be taxed on
the basis of their past, current and future production and pollution, at
the rate of $1000 for every: (1) pound of uranium or special nuclear
material or mill tailings produced; (2) pound of mercury “lost” into
the air, land or waters of the United States; (3) cubic feet of radioactive
waste created and disposed of; (4) or pound of other pollutants, contaminants
and hazardous waste created and disposed of.
(2) If any operator
liable to the fund under paragraph (1) refuses to pay, after demand, the
amount of such liability (including interest), then there shall be a lien
in favor of the United States for such amount upon all property and rights
to property, whether real or personal, belonging to such operator. The
lien arises on the date on which such liability is finally determined,
and continues until it is satisfied or becomes unenforceable by reason
of lapse of time. (3)(A) Except
as otherwise provided under this subsection, the priority of the lien shall
be determined in the same manner as under section 6323 of title 26. That
section shall be applied for such purposes -
(i) by substituting
'lien imposed by NWWVARCHA' for 'lien imposed by section 6321'; 'operator
liability lien' for 'tax lien'; 'operator' for 'taxpayer'; 'lien arising
under NWWVARCHA' for 'assessment of the tax'; 'payment of the liability
is made to NWWVARCHA' for 'satisfaction of a levy pursuant to section 6332(b)';
and 'satisfaction of NWWVARCHA liability' for 'collection of any tax under
this title' each place such terms appear; and
(ii) by treating
all references to the 'Secretary' as references to the Secretary of Labor.
(B) In the case
of a bankruptcy or insolvency proceeding, the lien imposed under paragraph
(2) shall be treated in the same manner as a lien for taxes due and owing
to the United States for purposes of the Bankruptcy Act or section 3713(a)
of title 31.
(C). For purposes
of applying section 6323(a) of title 26 to determine the priority between
the lien imposed under paragraph (2) and the Federal tax lien, each lien
shall be treated as a judgment lien arising as of the time notice of such
lien is filed.
(D)
For purposes of this subsection, notice of the lien imposed under paragraph
(2) shall be filed in the same manner as under subsections (f) and (g)
of section 6323 of title 26.
(4)(A)
In any case where there has been a refusal or neglect to pay the liability
imposed under paragraph (2), the Secretary may bring a civil action in
a district court of the United States to enforce the lien of the United
States under this section with respect to such liability or to subject
any property, of whatever nature, of the operator, or in which he has any
right, title, or interest, to the payment of such liability.
(B)
The liability imposed by paragraph (1) may be collected at a proceeding
in court if the proceeding is commenced within 6 years after the date on
which the liability was finally determined, or before the expiration of
any period for collection agreed upon in writing by the operator and the
United States before the expiration of such 6-year period. The running
of the period of limitation provided under this subparagraph shall be suspended
for any period during which the assets of the operator are in the custody
or control of any court of the United States, or of any State, or the District
of Columbia, and for 6 months thereafter, and for any period during which
the operator is outside the United States if such period of absence is
for a continuous period of at least 6 months. (5) The rate
of interest under this subsection -
(A) for any
period during calendar year 1982, shall be 15 percent, and
(B) for any
period after calendar year 1982, shall be the rate established by section
6621 of title 26 which is in effect for such period.
SECTION
11: NON-EXCLUSIVE REMEDY AGAINST CONTRACTORS,
AND SUBCONTRACTORS.
(a)
In General.--The liability of the United States or any contractor or subcontractor
of the United States with respect to a nuclear weapons related disease
cancer, beryllium illness, beryllium-related pulmonary condition, or death
of an employee shall in addition to any other civil, criminal or administrative
liability--
(1)
of
(A)
the United States;
(B) any instrumentality
the United States;
(C).
any contractor that contracted with the Department of Energy to provide
management and operating, management and integration, or environmental
remediation of a Department of Energy facility;
(D)
a subcontractor that provided services, including construction, at a Department
of Energy facility;
(E)
an beryllium vendor or uranium mining company;
(F)
an employee, agent, or assign of an entity specified in subparagraphs (A)-(E)–
(2)
to–
(A)
the worker or resident;
(B)
the worker or resident' legal representative, spouse, dependents, survivors,
and next of kin; and
(C).
any other person, including any third party as to whom the employee has
a cause of action relating to the illness or death, otherwise entitled
to recover damages from the United States, the instrumentality, the contractor,
the subcontractor, or the employee, agent, or assign of one of them,because
of that disease or death in any proceeding or action including a direct
judicial proceeding, a civil action, a criminal prosecution, a proceeding
in admiralty, or a proceeding under a tort liability statute or the common
law.
(b)
For actions not created by this Act, the Seventh Amendment right to jury
trial and all other rights and remedies created under state or federal
civil or criminal law shall be preserved inviolate.
SECTION 12.
COLLATERAL SOURCE RULE; NONRECOUPMENT.
(a)
No lump sum or monthly benefit compensation pursuant to this Act shall
be reduced by a source collateral to this Act, including but not limited
to benefits paid pursuant to heath, life or other insurance; state workers’
compensation; Social security disability; short-term or long-term disability;
or other employee or resident benefit or entitlement.
(b)
No recoupment may be sought for previously paid benefits paid pursuant
to heath, life or other insurance; state workers’ compensation; Social
security disability; short-term or long-term disability; or other employee
or resident benefit or entitlement. Notwithstanding any other provision
of federal or state law, the Courts of the United States shall have no
jurisdiction to hear any action for recoupment by any employer, insurance
company or other entity.
SECTION 13.
REPORTS. The Secretary of Labor shall prepare an
annual report on the administration of this title and the effectiveness
of the program in meeting the compensation needs of the persons protected
by this legislation.
SECTION 14.
STATUTORY CONSTRUCTION. This is
remedial legislation and is to be liberally construed.
SECTION 15.
NON-DISCRIMINATION, WHISTLEBLOWERS AND PROHIBITED ACTIVITY.
(A)
Section 211(a)(1) of the Energy Reorganization Act of 1974 (42 U.S.C. 5851(a)(1))
is amended by–
(1)
in subparagraph (E), striking “or;” and inserting “;”,
(2)
in subparagraph (F), striking the period and inserting “; or”, and (3)
after subparagraph (F) inserting a new subparagraph as follows:
(G) Department
of Energy employees;
(H) filed
an application for benefits or assistance under title XXXI of the Energy
Policy Act of 1992.”.
(B)
Discrimination prohibited
_
(1)
No person shall discharge or in any other way discriminate against any
person by reason of the fact that such person is suffering from a nuclear
weapons related disease or seeks compensation for such disease. No person
shall cause or attempt to cause another person to violate this section.
II.
(2 ) Any person who believes that he has been discharged or otherwise discriminated
against by any person in violation of subsection (a) of this section, or
any representative of such miner may, within one year after such violation
occurs, apply to the Secretary for a review of such alleged discharge or
discrimination. A copy of the application shall be sent to such person
who shall be the respondent. Upon receipt of such application, the Secretary
shall cause such investigation to be made as he deems appropriate. Such
investigation shall provide an opportunity for a public hearing at the
request of any party to enable the parties to present information relating
to such violation. The parties shall be given written notice of the time
and place of the hearing at least five days prior to the hearing. Any such
hearing shall be of record and shall be subject to section 554 of title
5. Each administrative law judge presiding under this section and under
the provisions of subchapters I, II and III of this chapter shall receive
compensation at a rate determined under section 5372 of title 5. Upon receiving
the report of such investigation, the Secretary shall make findings of
fact. If he finds that such violation did occur, he shall issue a decision,
incorporating an order therein, requiring the person committing such violation
to take such affirmative action as the Secretary deems appropriate, including,
but not limited to, the ending of the discrimination or retaliation, or
any form of retaliation, the rehiring or reinstatement of the person to
his former position with back pay and frontpay, where applicable.
SECTION 16.
CONTRACTS AND GRANTS.
(a)
Construction, purchase, and operation of fixed-site and mobile clinical
facilities.The Secretary of Labor is authorized
to enter into contracts with, and make grants to, public and private agencies
and organizations and individuals for the construction, purchase, and operation
of fixed-site and mobile clinical facilities for the analysis, examination,
and treatment of nuclear weapons related illnesses. (b) Research
activities. The Secretary of Labor and Secretary of Health
and Human Services shall initiate research, and are authorized to make
research grants to public and private agencies, non-profit organizations
and individuals for the purpose of devising simple and effective tests
to measure, detect, and treat nuclear weapons related diseases. Any grant
made pursuant to this subsection shall be conditioned upon all information,
uses, products, processes, patents, and other developments resulting from
such research being available to the general public.
(c). Authorization
of appropriations. There is hereby authorized to be appropriated
for the purpose of subsection (a) of this section $50,000,000 for each
fiscal year. There are hereby authorized to be appropriated for the purposes
of subsection (b) of this section such sums as are necessary.
SECTION 17.
PENALTY FOR FALSE STATEMENTS OR REPRESENTATIONS. Any
person who willfully makes any false or misleading statement or representation
for the purpose of obtaining or denying any benefit, payment or contract
under this subchapter shall be guilty of a misdemeanor and on conviction
thereof shall be punished by a fine of not more than $1,000, or by imprisonment
for not more than one year, or both.
SECTION 18.
ASSISTANCE IN CRIMINAL PROSECUTION.
The Secretary
of Labor shall make timely referrals of all persons and organizations,
including Department of Energy employees, contractors, subcontractors and
employees, where there is reasonable cause to believe may have violated
any federal criminal law, including homicide, reckless endangerment, obstruction
of justice, false claims or fraud against the government. It
shall not be a basis for postponing a proceeding under this case that a
criminal investigation has commenced, unless such postponement is sought
by the claimant, for good cause shown.
SECTION 19.
INTERVENTION, AMICUS CURIAE AND PARTIES
(a)
The Secretary of Labor shall allow persons, firms or organizations
to seek status as amicus curiae or intervenors pursuant to the Rules
of Practice and Procedure of the Department of Labor Office of Administrative
Law Judges. However, in no event shall either the Department of Energy
or any DOE contractor or subcontractor be recognized as a party respondent
or defendant in a proceeding under this Act, or to have any right to request
a hearing or present evidence at trial. The purpose of this legislation
is to provide a Due Process procedure to determine eligibility for benefits,
not to allow DOE or its contractors to fight entitlement to benefits.
SECTION 20.
CONFORMING AMENDMENTS. [INSERT HERE -- Abolition
of RECA, etc.] xxxx need help
here!
SECTION
21 AUTHORIZATION OF APPROPRIATIONS.There is authorized
to be appropriated to the Secretary of Labor such sums as may be necessary
to carry out his responsibilities under this subchapter. Such sums shall
remain available until expended.
SECTION 22.
SEVERABILITY. In the event of
any part of this Act being invalidated, such invalidation shall have no
effect upon the remaining provisions.
SECTION 23.
EFFECTIVE DATE. This Act shall
be effective within 30 days of its enactment
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