Revised May 21, 2000 Discussion Draft, subject to further revisions.

          A BILL

          S. __________

          H.R. ____________

Nuclear Weapons Workers, Atomic 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 (NWWAVARCHA) 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 or foreign nationals 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 significant 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;  that few States provide benefits for death or total or partial 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 or partial 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 by the physicians and health care providers of their own choice, and to assure that those responsible are held accountable.

(b) (1) Since World War II Federal nuclear activities have been explicitly recognized by the United States Government as an a ultra‑hazardous activity under Federal law. Nuclear weapons production and testing involved serious dangers, including potential catastrophic nuclear accidents that private insurance carriers would not cover, as well as chronic exposures to radioactive and hazardous substances, such as beryllium and silica, that even in small amounts could cause medical harm.

(2) Since the inception of the nuclear weapons program and for several decades afterwards, large numbers of nuclear weapons workers at Department of Energy and at vendor sites 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.

(3) Numerous previously secret records documented unmonitored radiation, beryllium, silica, heavy metals, hydrogen fluoride, cyanide, and other toxicant exposures and continuing problems at the Department of Energy and vendor sites across the country, where since World War II the Department of Energy and its predecessors have been self‑regulating with respect to nuclear safety and occupational safety and health. No other hazardous Federal activity has been permitted to have such sweeping self‑regulatory powers.

(4) The Department of Energy policy to litigate occupational illness claims has deterred workers from filing workers compensation claims and imposed major financial burdens for workers who sought compensation. Department of Energy contractors have been held harmless and the Department of Energy workers were denied workers compensation coverage for occupational disease.

(5) Over the past 20 years more than two dozen scientific findings have emerged that indicate that certain Department of Energy workers are experiencing increased risks of dying from cancer and non‑malignant diseases at numerous facilities that provided for the nation's nuclear deterrent. Several of these studies also establish a correlation between excess diseases and exposure to radiation, beryllium, and silica.

(6) While linking exposure to occupational hazards with the development of occupational disease is sometimes difficult, scientific evidence supports the conclusion that occupational exposure to dust particles or vapor of beryllium, even where there was compliance with the standards in place at the time, can cause beryllium sensitivity and chronic beryllium disease. Furthermore, studies indicate than 98 percent of radiation induced cancers within the Department of Energy complex occur at dose levels below existing maximum safe thresholds. Workers at Department of Energy sites were exposed to silica, heavy metals, hydrogen fluoride, cyanide and other toxicants at levels that will lead or contribute to illness and diseases. DOE and its contractors have refused to perform biological sampling of workers raising concerns about such substances.

(7) State workers' compensation law is not a uniform or reasonable means to provide adequate compensation for the types of occupational illnesses and diseases related to the prosecution of the Cold War effort.

(8) The civilian men and women who performed duties uniquely related to the Department of Energy's nuclear weapons production and testing programs over the last 50 years should have fair, equitable, compassionate, efficient, uniform, and adequate compensation for occupational disease conditions.

(9) Likewise, the Downwinders, residents, Atomic Veterans and other persons injured by nuclear weapons should be entitled to compensation pursuant to the same standards, with the same Due Process rights, for similar reasons.

(10) This Act is enacted pursuant to the United States Constitution, Article I, Section 8, clauses 1,3,7,9,10,11,12,13,14,16,17 & 18; and by Amendment I, & Amendment XIV, Section 5..

(c). This subchapter may be cited as the “Nuclear Weapons Workers, Veterans and Residents Compensation Act (NWWAVARCHA) of 2000.”

(d).  This legislation is intended as a remedial entitlement to assure equal justice for injured workers, veterans and residents, their dependents and survivors, and future persons injured (including children, grandchildren and other offspring suffering genetic damage).  This legislation is not intended as a welfare benefit, a discretionary 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, 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 person named in a decedent’s will, or the wife or husband who is a member of the same household as the worker, person or decedent, or is receiving regular contributions from the worker, person or decedent for her support, or whose husband is a worker, person or decedent 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 worker, person or decedent shall be made in accordance with section 416(h)(1) of title 42 as if such worker, person or decedent 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 worker, person or decedent, or is receiving substantial contributions from the worker, person or decedent (pursuant to a written agreement), or there is in effect a court order for substantial contributions to her support from such worker, person or decedent.

   (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 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 domestic partner or other person named in the decedent’s will, 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)(1) 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

     (f)(2) The term “partial disability” shall have the meaning set forth in 31 U.S.C. § 908, Section 8 of the Longshore and Harbor Workers’ Act of 1928, as amended.

.     (g) The term 'child' mean s 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 (1), 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, nickel 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, except that there shall be no exemption for Special Nuclear Materials in this Act.

(o) The term “DOL whistleblower laws” shall include all whistleblower laws over which DOL has jurisdiction, including but not limited to the following laws: Clean Air Act, 42 U.S.C. § 7622; Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9610; Energy Reorganization Act, 42 U.S.C. § 5851; Federal Water Pollution Control Act, 33 U.S.C. § 1367; Federal Water Pollution Control Act, 33 U.S.C. § 1369; Safe Drinking Water Act, 42 U.S.C. § 300j-9; Solid Waste Disposal Act, 42 U.S.C. § 6971; Surface Transportation Assistance Act, 49 U.S.C. § 31105;Surface Transportation Assistance Act of 1982, 49 U.S.C. app. § 2305; Toxic Substances Control Act, 15 U.S.C. § 2622.

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, beryllium vendor or supplier, exposed to fallout, nuclear weapons, Depleted Uranium or other nuclear weapons related toxicants 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 toxicants 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)(a)  suffered or suffers from leukemia or cancer of the  pharynx/larynx, salivary glands, skin, small intestine, colon/rectum, lung, liver, bone, brain, ovary, pancreas, breast, stomach, thyroid, esophagus, nasal cavity, urinary tract, parathyroid, prostate, lymphoma, uterus or, testis.

(2)(b)  suffered or suffers from fibromyalgia, pre‑cancerous tumors, nasal polyposis, polymiocitis, porphyria, Graves’ disease, chronic fatigue (CFS),  amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease), heart disease, neuromuscular disease, arthritis, suppressed immune system,  immunosupression/infection, autoimmune thyroiditis, non‑ cancerous Thyroid disease, irritable colon syndrome, irritable colon syndrome, Crohn’s disease,  infertility, birth defects and their sequelae, miscarriages, Down’s syndrome (Mongolism), or any all secondary cancers resulting from treatment of first radiogenic cancer.      

(3)  suffered two or more heart attacks before age 50 or  suffered one or more strokes before age 55;

(4)  suffered loss of at least five IQ points after toxicant exposures;

(5)  suffered cancer or required surgery or chemotheraphy due to cancer;

(6)  was found to have been exposed to toxicants 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 toxicant 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; or

(13) has suffered neurotoxicity damage as shown on PETor Spec scans;

SECTION 5.  ENTITLEMENTS TO LIFETIME MEDICAL CARE AND BENEFITS.   

(a) All persons entitled to benefits under this Act shall from the date of their application be entitled to lifetime medical care, to be paid by the Fund, including payment for health care services required to establish eligibility for benefits.  Health care will be provided by independent health care providers of the patient’s choice, 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) (1)      All persons entitled to benefits under this Act shall be entitled to payment of $350,000 for each worker, miner, resident, decedent or survivor. 

      (2)      In the case of any decedent, the survivors shall be entitled to collect a sum equal to the present value of their future average life span earnings, uncompensated medical expenses, reasonable funeral expenses as determined by local custom or a schedule established by the Federal Trade Commission, and reimbursement of any unreimbursedcosts associated with probate, sale of farms or residences; 

      (3) the survivors of any person receiving or entitled to receive a pension from his or her employer shall, upon the death of their decedent, be entitled to receive the aggregate amount of their accrued pension benefits subject to the decedent’s last will and testament or state, territorial or Tribal laws of intestacy, as applicable, subject to interpretation by the Department of the Interior Administrative Law Judges in the case of a decedent whose estate is subject to DOI jurisdiction under Native American probate law.

(c). All persons entitled to continuing benefits under this Act shall, in addition, be entitled to receive monthly compensation for either total or partial disability 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 and shall not be attachable by any creditor, insurance company, third party payor, employer or other entity.

SECTION 6.  PROMULGATION OF FUTURE MEDICAL STANDARDS; TIME FOR FILING OF CLAIMS; ACTION‑FORCING MECHANISMS; RECONSIDERATION OF DENIED CLAIMS. 

(a) After the expiration of ten years, after consultation with medical professionals, unions, community groups 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. 

(c). Any claim filed with OWCP not denied within 90 days shall be granted by automatic force and effect of this Act. Any appeal filed with DOL OALJ not granted within 120 days shall be granted by automatic force and effect of this Act.  Any claim filed with DOL ARB not granted within 120 days shall be granted by automatic force and effect of this Act.  Any claim denied without good cause shall receive enhanced benefits and attorney fees and costs of 25%, applicable to both lump sum payments and monthly benefits 

(d) Reconsideration.  Any claim denied under this Act may be reconsidered upon motion of the claimant at any time based upon new or substantially new evidence, including but not limited to autopsies, medical reports, objective medical tests, testimony or declarations.

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, in all Post Offices through posters, in all mailboxes through annual IRS form mailings, a seperate pamphlet to be made available at all Social Security offices and Veterans facilities and hospitals, on the Internet, in E‑mail, and through 800 numbers, posters, unions, State, county, municipal and Tribal governments, appropriate organizations, groups, uranium mines, and nuclear plant operators, to notify individuals who are likely to be 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 in languages used by the claimants in their daily lives. Public information about eligibility to apply for benefits shall be distributed in writing, by radio and other means 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, provided further that failure to make a timely decision triggers the action-forcing mechanism set forth in Section 6(c). of this 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,  provided further that failure to make a timely decision triggers the action-forcing mechanism set forth in Section 6(c). of this Act.

(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, , provided further that failure to make a timely decision triggers the action-forcing mechanism set forth in Section 6(c) of this 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)(1) 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.

(e)(2) Any claimant shall have the right to have interrogatories, requests for production of documents, requests for admissions, request to enter onto and inspect land, requests for medical examinations and other discovery requests answered by the Department of Energy, any DOE contractor or subcontractor, any beryllium vendor or producer, or any other entity now or formerly in contractual privity with the United States Government in the same manner as if such party were named as a respondent in a Department of Labor proceeding.  Any such entity objecting to or seeking modification of such requests may file a limited intervention with the Administrative Law Judge for that limited purpose.

(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 at no expense or delay to the claimant.  Initial DOL claim forms and communications shall be written in as many languages as are necessary to reach all of the people whom this Act is intended to reach. 

(g) With the assistance of the Office of Personnel Management, 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, in order to assure that the U.S. 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.  All hearings shall be open to the public.

(i) All members of any Department of Labor appellate boards, including the Benefits Review Board and Administrative Review Board, shall, 30 days from the date of the enactment of this Act, shall be required to be qualified as either Administrative Law Judges appointed pursuant to 5 U.S.C. § 3105, or a person appointed to the position by the President pursuant to the Advice and Consent of the United States Senate.

(j) 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.

(k) Settlements; Prohibition on “Gag”Orders, Impermissible Alternative dispute resolution methods.   There shall be no “gag”orders inserted or approved in any settlement under this Act or under any of DOL whistleblower provision.  This section takes precedence over the Alternative Dispute Resolution Act.  The only “alternative dispute resolution” (ADR) authorized for claims under this act is the use of Department of Labor Administrative Law Judges as settlement judges. [29 C.F.R. 18.9 (2000).]   No other DOL, DOE, VA, DOD, contractor or consultant mediator, facilitator, convenor, enabler or other ADR personnel shall have jurisdiction to meet with claimants about “settlement” of claims under this Act or any of the DOL whistleblower laws.  Each violation of this provision shall be subject to a $10,000 fine and one year imprisonment.

(l) Disclosures and Recusal.   All Department of Labor Administrative Law Judges and associated Attorney-Advisors shall file public annual disclosures readily accessible to all party-litigants and their counsel, regarding past and future employment, contacts, job searches, references, relatives and financial holdings.  Any Department of Labor party-litigant shall have the right to make one request for recusal of an Administrative Law Judge or Appeal Board member as a matter of right, without supporting affidavits.

(m) Judicial Independence; Peer Review.  It is fundamental requirement of this Act that any Department of Labor adjudication must be free from bias.  To assure this occurs, any party litigant, counsel, observer, reporter, organization or other person observing the behavior of Judge in any DOL proceeding shall have the right to file a request for Peer Review with The Chief Administrative Law Judge of the U.S. Department of Labor, who shall convene a panel of judges and attorneys selected on the basis of diversity principles.  The identity of persons filing Peer Review complaints shall be kept confidential by the Office of Administrative Law Judges: the name of persons filing complaints shall not be disclosed to DOL judges or any other natural or jural person.  Each violation of any part of the this subsection shall be subject to a $10,000 fine and one year imprisonment.

(n) (1) Attorney feees.    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, whether before the Office of Workers’ Compensation Programs, the Office of Administrative Law Judges, the Benefits Review Board, the Circuit Court of Appeals or the United States Supreme Court.  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 $10,000 or be imprisoned for not more than one year, or both.

 (4) Interim attorney fees ordered under this provision are nonrefundable and nonreimbursable, even in the event an award of benefits is reversed 

(5) DOL payment from the fund of benefits, medical expenses, and attorney fees costs and expenses shall all be subject to the provisions of the Prompt Payment Act (payment within thirty days).

(o)  The Benefits Review Board (BRB) Office of Administrative Law Judges and Deputy Commissioner shall keep and publish on the Internet detailed statistical information on the location, number, type and disposition of claims, reasons for denials, results of hearings, appeals and judicial review, 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.  This information shall be published pursuant to the Electronic Freedom of Information Act and shall be published in a newsletter comparable to those provided on Black Lung and Longshore cases.  All such newsletters shall be reviewed by a Board of Visitors comprised of  legal scholars, practitioners and claimants, to assure thoroughness of presentation.

(p)   There shall be no written or unwritten Memorandum of Understanding (MOU), agreement, contract, understanding or relationship of any kind between the Department of Labor and the Department of Energy respecting the provisions of this Act.  There shall be no private or ex parte arrangements of any kind between DOE and DOL that are in any manner inconsistent with completely independent adjudications, investigations and decisions in cases brought pursuant to this Act.  No control or influence, directly or indirectly, is to be asserted or attempted by the Department of Energy or any other entity or person over decisions on claims pursuant to this Act. Any violations of this provision shall be a felony, punishable by a $10,000 fine and one year of imprisonment.

SECTION 9.  MEDICAL EVIDENCE AND EXAMINATIONS.   UTILIZATION OF PERSONNEL AND PROCEDURES; EVIDENCE REQUIRED TO ESTABLISH CLAIM; MEDICAL EVIDENCE; DECLARATIONS; 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 declarations 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) Past and present Operators of nuclear weapons facilities, test sites, uranium mines, uranium mills and uranium tailing facilities and beryllium vendors shall be required to pay a onetime ultrahazardous environmental cleanup fee, calculated 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 NWWAVARCHA' for 'lien imposed by section 6321'; 'operator liability lien' for 'tax lien'; 'operator' for 'taxpayer'; 'lien arising under NWWAVARCHA' for 'assessment of the tax'; 'payment of the liability is made to NWWAVARCHA' for 'satisfaction of a levy pursuant to section 6332(b)'; and 'satisfaction of NWWAVARCHA 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.

(c) 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.

(d). 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.