[Senate Hearing 108-732]
[From the U.S. Government Printing Office]
S. Hrg. 108-732
HARBERT AND SHAW NOMINATIONS
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
TO
CONSIDER THE NOMINATIONS OF KAREN ALDERMAN HARBERT TO BE ASSISTANT
SECRETARY FOR THE OFFICE OF POLICY AND INTERNATIONAL AFFAIRS AND JOHN
SPITALERI SHAW TO BE ASSISTANT SECRETARY FOR THE OFFICE OF ENVIRONMENT,
SAFETY AND HEALTH
__________
SEPTEMBER 21, 2004
Printed for the use of the
Committee on Energy and Natural Resources
______
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee RON WYDEN, Oregon
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana EVAN BAYH, Indiana
GORDON SMITH, Oregon DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky CHARLES E. SCHUMER, New York
JON KYL, Arizona MARIA CANTWELL, Washington
Alex Flint, Staff Director
Judith K. Pensabene, Chief Counsel
Robert M. Simon, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
C O N T E N T S
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STATEMENTS
Page
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................ 2
Bunning, Hon. Jim, U.S. Senator from Kentucky.................... 3
Domenici, Hon. Pete V., U.S. Senator from New Mexico............. 1
Harbert, Karen Alderman, Nominee To Be Assistant Secretary for
the Office of Policy and International Affairs, Department of
Energy......................................................... 4
Shaw, John Spitaleri, Nominee To Be Assistant Secretary for the
Office of Environment, Safety and Health, Department of Energy. 7
APPENDIX
Responses to additional questions................................ 13
HARBERT AND SHAW NOMINATIONS
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TUESDAY, SEPTEMBER 21, 2004
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in room
SD-366, Dirksen Senate Office Building, Hon. Pete V. Domenici,
chairman, presiding.
OPENING STATEMENT OF HON. PETE V. DOMENICI,
U.S. SENATOR FROM NEW MEXICO
The Chairman. The hearing will please come to order.
Senator Bingaman, I understand that there is just an awful
lot of simultaneous hearings this morning, and that probably
accounts for the fact that there are not so many Senators here.
So we are going to start with a chairman's remark.
Anybody on the committee that has questions will submit
them in writing and then you all will answer those. What is a
reasonable time for the submission of questions? 5 days?
Senator Bingaman. The end of the week.
The Chairman. End of the week, all right. By the end of the
week, staff, would you inform your Senators that if they have
questions, they should get them in?
Let me welcome both of you: Karen Harbert and John Shaw.
Ms. Harbert will be Assistant Secretary for International
Affairs and Domestic Policy. We wish you the best.
Ms. Harbert. Thank you.
The Chairman. John Shaw will be Assistant Secretary of
Energy for the Environment, Safety and Health. Both of them are
important jobs. As I said, we hope that you have the very best.
Mr. Shaw. Thank you.
The Chairman. Now, before we begin the statements, I would
ask each of you three questions. You have to stand up and raise
your right hands.
Do you solemnly swear that the testimony you are about to
give to the Senate Committee on Energy and Natural Resources
shall be the truth, the whole truth, and nothing but the truth?
Mr. Shaw. I do.
Ms. Harbert. I do.
The Chairman. Thank you. Sit down.
Before you begin your statements, I will ask each of you
three questions addressed to each of you. I will begin with Ms.
Harbert. Will you be available to appear before this committee
and other congressional committees to represent the
Department's position and to respond to issues of concern to
the Congress?
Ms. Harbert. I will.
The Chairman. Mr. Shaw?
Mr. Shaw. I will, sir.
The Chairman. Are you aware of any personal holdings,
investments, or interests that could constitute a conflict or
create the appearance of such a conflict, should you be
confirmed and assume the office to which you have been
nominated by the President?
Ms. Harbert?
Ms. Harbert. Mr. Chairman, my investments, personal
holdings, and other interests have been reviewed both by myself
and the appropriate ethics officials and counselors within the
Federal Government. I have taken appropriate action to avoid
any conflicts of interest. There are no conflicts of interest
or appearances thereof to my knowledge.
The Chairman. Thank you.
Mr. Shaw.
Mr. Shaw. Mr. Chairman, my investments, personal holdings,
and other interests have been reviewed by both myself and the
appropriate ethics counselors within the Federal Government. I
have taken appropriate action to avoid any conflicts of
interest. There are no conflicts of interest or appearances
thereof to my knowledge, sir.
The Chairman. Are you involved or do you have any assets
held in blind trust?
Ms. Harbert. No, Mr. Chairman.
The Chairman. Mr. Shaw?
Mr. Shaw. No, Mr. Chairman.
The Chairman. Thank you.
Now, we are going to move on. If the Senators have some
brief opening statements, if you would like to give them, we
will do that.
Senator Bingaman.
STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR
FROM NEW MEXICO
Senator Bingaman. Mr. Chairman, thank you very much for
recognizing me. Let me just say that I intend to support both
of the nominees based on what I am advised. These are both very
important positions and they have particular relevance to our
State, as you know, in several regards.
I do have some statements that I will submit in writing. I
have another hearing going on in the Finance Committee that I
am required to attend as well. So I do appreciate them being
here and I wish them both well.
Mr. Shaw. Thank you, Senator.
Ms. Harbert. Thank you.
The Chairman. Before I yield to Senator Bunning, I
understand that each of you has some relatives here. That seems
to me to be important because it means that you consider it
important, important enough to have your family here. Ms.
Harbert, would you have your family stand up and quickly
introduce them?
Ms. Harbert. Yes, thank you, Mr. Chairman. I am pleased to
introduce my mother, Josephine Hailey, who hails from the great
State of Tennessee and who raised me to put integrity first. My
husband, Michael Mitchell, and my mother-in-law and father-in-
law, Helen and Jerry Mitchell, all three of them from the great
State of Pennsylvania. Thank you.
The Chairman. Mr. Shaw.
Mr. Shaw. Yes, Mr. Chairman. Thank you very much for this
opportunity. Today I am joined by my wife, Hilary Shaw. My
daughters, Isabelle and Charlotte, are here with me today. My
mother is here as well, Patricia Spitaleri, and I am joined by
my father-in-law, Jim Holman. My mother-in-law and father could
not make it here today. They are traveling on business. Thank
you, Mr. Chairman.
The Chairman. That little one over there is one of them?
Mr. Shaw. Yes, sir, the little redhead is mine.
[Laughter.]
The Chairman. You have her close to the door so if
something happens, they can run out.
[Laughter.]
The Chairman. Senator Bunning.
STATEMENT OF HON. JIM BUNNING, U.S. SENATOR
FROM KENTUCKY
Senator Bunning. Thank you, Mr. Chairman. Obviously, we
have two nominees: Karen Harbert, the nominee to be Assistant
Secretary of Energy for International Affairs and Domestic
Policy; and Mr. John Shaw, nominated to be Assistant Secretary
of Energy for Environment, Safety and Health.
The nomination of Mr. Shaw is especially important, given
the problems we have had that have plagued the DOE operation in
its energy employees compensation program. Many of the workers
at the Paducah gaseous diffusion plant have already received
compensation for their illnesses due to the radiation and
beryllium under subtitle B, the portion of the program run by
the Department of Labor. DOL has processed more than 90 percent
of the nearly 60,000 claims under the energy employment
program.
In contrast, however, more than 3,200 Kentuckians have
requested help from DOE under subtitle D. These are Paducah
workers exposed to toxic substances. These workers are still
waiting to have their cases heard. None--that is zero--Kentucky
workers have received compensation for their illnesses under
DOE's portion of this program. As the Assistant Secretary for
Environment, Safety and Health, it will be Mr. Shaw's job to
oversee DOE's responsibilities under the energy program.
As you are no doubt aware, I, along with bipartisan
supporters of more than 20 Senators, drafted the Bunning-
Bingaman amendment to the defense authorization bill. The
amendment moves the majority of the DOE operation to DOL for
prompt claim processing and assures payment of benefits to
deserving workers. The DOE has opposed these important reforms.
I have worked hard and long with many of my Senate colleagues
on this amendment and am hopeful it will stay in the
conference.
This is a big job and I expect Mr. Shaw will be receptive
to suggestion and comments by Members of Congress. I hope that
if the Senate confirms Mr. Shaw, he will work hard to make sure
that DOE effectively manages the part of the energy employees
program that they retain, such as record retrieval from the DOE
facilities. I also hope he can assure a smooth transfer of
operations if the program is moved to DOL.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator.
Now, as you can tell, things are getting rather slim up
here. So what we are going to do is ask that you make your
statements, and they are both made a part of the record right
now. So they are part of this transcript. I would ask each of
you to summarize them as briefly as you can. I understand they
are brief, but maybe make the statements even briefer. Let us
start with you, ma'am.
TESTIMONY OF KAREN ALDERMAN HARBERT, NOMINEE TO BE ASSISTANT
SECRETARY FOR THE OFFICE OF POLICY AND INTERNATIONAL AFFAIRS,
DEPARTMENT OF ENERGY
Ms. Harbert. Yes, thank you, Mr. Chairman and members of
the committee.
I am honored to appear today before you as President Bush's
nominee for Assistant Secretary for International Affairs and
Domestic Policy, and I am grateful for the opportunity to serve
President Bush and Secretary Abraham to build upon the
excellent relations that DOE currently enjoys with the members
of this committee.
The Assistant Secretary is DOE's principal liaison to the
Federal Government, other agencies, and other nations to ensure
a unified policy voice on our energy sector. We live in a time
when national security issues such as energy are no longer
either domestic or international in nature. Fortunately, I have
excellent road maps to guide my efforts, President Bush's
National Energy Policy and National Security Strategy. The
experience and knowledge I have gained throughout my career and
by serving in senior positions in the Federal Government and
the private sector will be a strong foundation to lead the
Department's efforts to keep energy issues at the forefront of
our national agenda here and abroad.
Currently, as you may know, I serve at the United States
Agency for International Development in charge of overseeing
our foreign assistance programs in South America and the
Caribbean. With an increasing appreciation for development
assistance as an invaluable tool in achieving our national
security objectives, I have established relationships across
the foreign affairs agencies of the executive branch that will
afford a ready-made interagency network, should I be confirmed.
In my current position, I viewed USAID's relationships with
Congress as a high priority and have expended significant
effort to keep members and staff apprised of our programs, our
budget needs, our successes, and our shortcomings. If
confirmed, I can assure you that I will also endeavor to
continue the development of a good working relationship with
this committee and be proactive in keeping you abreast of DOE
initiatives.
I have lived and worked abroad all of my professional life
with an emphasis on Latin America and the Caribbean. My job now
is to improve people's lives and improve U.S. relationships
with countries in the hemisphere. During my tenure at a private
energy firm, it was my job to liaison with host governments and
demonstrate to them the necessity of making their energy sector
a priority for improvement. As Assistant Secretary, my job
would be to find that common ground where we can improve our
energy relationships around the world, make the energy sector a
priority, and do it in a way that improves people's lives,
protects our national assets, and protects the environment for
generations to come.
My experience with countries in this hemisphere is both
broad and deep. As both the chairman and the ranking member
know, our energy relationships within this hemisphere are
growing in importance. In the private sector, I have also
worked on energy issues in Asia, the Middle East, and Africa,
and I have been a part of pioneering privatization programs
around the world, opening up other sectors to private sector
investment. I look forward to returning to these parts of the
world, if confirmed as Assistant Secretary.
I have witnessed firsthand the value that DOE offers in
commercializing environmentally friendly technologies to help
us and other committed countries address global climate change.
Should I be confirmed, I want to assure you that our work on
global climate change will continue and be an expanding part of
our international dialog.
Our government has some of the most experienced
professionals in their specific career areas around the world.
I currently oversee about 1,000 employees, extremely capable
and committed individuals, at USAID. And at DOE I have met the
International and Domestic Policy staff, and I would be very
privileged to lead that great team. Sound management practice
is an important part of an Assistant Secretary's mandate, and
you have my assurance that, if confirmed, I will attend to the
management needs of the office to allow the talents and
contributions of the office to be fully realized.
In conclusion, as you know, we face many great challenges
in further expanding our national energy mix. Internationally,
we see countries such as China and India vastly increasing
their energy demands, and at home we must protect and modernize
our energy infrastructure and promote the use of technology to
ensure a constant, fairly priced supply of environmentally
friendly energy.
Mr. Chairman, it is a rare occurrence when an opportunity
presents itself that allows you to bring forth all of your
experience and knowledge for one job. I thank the President and
the Secretary for this opportunity and I thank the members of
this committee for considering my nomination.
This concludes my statement and I would be happy to address
any questions the committee may have. Thank you.
[The prepared statement of Ms. Harbert follows:]
Prepared Statement of Karen Alderman Harbert, Nominee To Be Assistant
Secretary for the Office of Policy and International Affairs,
Department of Energy
Chairman Domenici, Senator Bingaman and members of the Committee, I
am honored to appear before you today as President Bush's nominee for
Assistant Secretary for International Affairs and Domestic Policy. I am
grateful for the opportunity to serve President Bush and Secretary
Abraham and to build upon the excellent relations that the Department
of Energy (DOE) enjoys with the members of this Committee.
First, Mr. Chairman, please allow me to introduce two important
people here with me today. My mother Josephine Hailey here from Senator
Alexander's home state who raised me to put integrity first, and my
husband Michael Mitchell, my most valued and cherished partner in life.
The Assistant Secretary for International Affairs and Domestic
Policy is DOE's principal liaison to other nations and to other Federal
agencies to ensure a unified voice for our energy policy. We live in a
time when national security issues such as energy are no longer either
domestic or international in nature. On both the domestic and
international components of the office's portfolio, I have excellent
road maps to guide my efforts, President Bush's National Energy Policy
and the National Security Strategy. The experience and knowledge I have
gained throughout my career and by serving in senior positions in the
Federal government and in the private sector will be a strong
foundation to lead the Department's efforts to keep energy issues at
the forefront of our national agenda here and abroad.
Currently, I serve at the U.S. Agency for International
Development, charged with overseeing our foreign assistance programs in
South American and the Caribbean. With increasing appreciation for
development assistance as an invaluable tool in achieving our national
security objectives, I have established relationships across the
foreign affairs agencies of the executive branch that will afford a
ready made interagency network should I be confirmed. In my current
position, I viewed USAID's relationships with Congress as a high
priority and have expended significant effort to keep members and staff
apprised of our programs, our budget needs, our successes and our
shortcomings. If confirmed, I can assure you that I will also endeavor
to continue the development of a good working relationship with this
Committee and be proactive in keeping you abreast of DOE initiatives.
I have lived and worked in the international arena all of my
professional life, with a particular emphasis on Latin American and the
Caribbean. I was born in Argentina to American parents during a time
when the U.S. and Argentina did not see eye-to-eye on many issues,
which ultimately didn't serve either's interests well. My job now is to
improve people's lives and improve U.S. relationships with the
countries in this Hemisphere. During my tenure at a private energy
firm, it was my job to liaison with host governments and demonstrate to
them the necessity of making their energy sector a priority for
improvement. As Assistant Secretary my job would be to find that common
ground where we can improve our energy relationships around the world,
make the energy sector a priority and do it in a way that improves
people's lives and protects the environment for generations to come.
My experience with countries in this Hemisphere is both broad and
deep and as both the Chairman and Ranking Member know our energy
relationships with our hemispheric partners are growing in importance.
In the private sector I also worked on energy issues in Asia, the
Middle East and Africa. I have been part of pioneering energy
privatization programs working with governments to open up to private
investment. I look forward to returning to these parts of the world to
solidify and expand U.S. interests.
In the private sector, I witnessed first hand the value DOE labs
offer in commercializing environmentally friendly technology to help us
and other committed countries address global climate change. Should I
be confirmed, our work on Global Climate Change will continue and be an
expanding part of our international dialogue.
Our government has some of the most experienced professionals in
their specific career areas in the world. I currently oversee almost
1,000 extremely capable and committed individuals at USAID. DOE is no
exception. I have met the International and Domestic Policy Staff and
would be privileged to lead that great team. Sound management practice
is an important part of the Assistant Secretary's mandate. You have my
assurance that if confirmed, I will attend to the management needs of
the office to allow the talents and contributions of the office to be
fully realized.
We face many great challenges in further expanding our national
energy mix. Internationally, we see countries such as China and India
vastly increasing their energy demands. At home, we must protect and
modernize our energy infrastructure and promote the use of technology
to ensure a constant, fairly-priced supply of energy.
Mr. Chairman, it is a rare occurrence when an opportunity presents
itself that allows you to bring forth all of your experience and
knowledge for one job. I thank the President and the Secretary for this
opportunity and I thank the members of the Committee for considering my
nomination. This concludes my statement and I would be happy to address
any questions the Committee may have. Thank you.
The Chairman. Thank you.
Mr. Shaw.
TESTIMONY OF JOHN SPITALERI SHAW, NOMINEE TO BE
ASSISTANT SECRETARY FOR THE OFFICE OF ENVIRONMENT, SAFETY AND
HEALTH, DEPARTMENT OF ENERGY
Mr. Shaw. Mr. Chairman and members of the committee, it is
my honor and privilege to appear before you today as President
Bush's nominee to serve as the Assistant Secretary for
Environment, Safety and Health.
Mr. Chairman, I can think of no other position in
government that offers the challenges and potential rewards as
that of Assistant Secretary for Environment, Safety and Health.
Should I be confirmed, I will seek to provide leadership and
help the men and women in EH continue to meet their goal of
assuring the health and safety of DOE employees and the
protection of the environment in communities near DOE
facilities.
I appreciate your consideration of my nomination and I very
much look forward to working with you and members of the
committee. Thank you for the opportunity to appear before you
today, and I look forward to answering your questions. Thank
you, Mr. Chairman.
[The prepared statement of Mr. Shaw follows:]
Prepared Statement of John Spitaleri Shaw, Nominee To Be Assistant
Secretary for the Office of Environment, Safety and Health, Department
of Energy
Chairman Domenici, Senator Bingaman, and members of the Committee,
it is my honor and privilege to appear before you today as President
Bush's nominee to serve as the Assistant Secretary of Energy for
Environment, Safety and Health (EH). As you know, on July 22, 2004, I
was also appointed Acting Assistant Secretary for Environment, Safety
and Health in order to fill a position that had been vacant for several
months.
Before being appointed Acting Assistant Secretary, I held two
senior positions at the Department of Energy (DOE)--first as Principal
Deputy Assistant Secretary for Environment, Safety and Health, and then
as the Deputy Chief of Staff and White House Liaison. Prior to joining
DOE, I practiced law in the private sector here in Washington, D.C. and
also served as Majority Counsel for former Senator Fred Thompson on the
Senate Committee on Government Affairs during the committee's 1997
special investigation into alleged illegal and improper campaign
finance activity.
As Principal Deputy Assistant Secretary for Environment, Safety and
Health, I became familiar with the wide range of critical functions
played by the Office. As the Department's Deputy Chief of Staff, where
it was my responsibility to coordinate Secretarial initiatives with the
various program offices, I again saw firsthand how EH serves the DOE
program offices throughout the Department. In short, it became clear
that it is the Office of Environment, Safety and Health that the DOE
community comes to for the help they need not only to do their jobs
safely, but to do them well.
Secretary Abraham has made a personal commitment that the safety of
our workers, respect for the environment, and the protection of the
public health are paramount in all that we do. The Secretary looks to
EH to help provide the leadership and tools needed to keep this
commitment. The Department today has an excellent safety record--for
example, over the past six years the numbers of workdays lost because
of safety concerns has been cut in half and is now less than half that
of private industry.
While that is a record to be proud of, our data tells us we need to
do better. Our data tells us that we have to improve our performance in
two areas in particular--electrical safety and the safety performance
of subcontractors who come on to our sites for brief periods. As
Assistant Secretary, one of my top priorities would be to improve the
Department's performance in these areas.
In the short time that I have served as the Acting Assistant
Secretary, I have become familiar with the wide range of
responsibilities this office entails--from the Office of Facility
Safety to Office of Health, the Office of Corporate Performance
Assessment, the Office of Price Anderson Enforcement, and the Office of
Environment. I know that many of the activities of these offices are of
great importance to the members of the Committee and I pledge to work
closely with this Committee and other Members of Congress on each of
these areas of interest.
An example of the breadth of EH activities is the Office of
Environment. The Office conducts independent reviews of Environmental
Impact Statements prepared by DOE Program offices to ensure they are
technically adequate, legally sufficient, and compliant with all
requirements; they ensure radiation protection of the public and
environment through policies and guidance; and they promote the
adoption of sound pollution prevention practices through the use of
environmental management systems. They are providing DOE-wide
leadership in helping meet the goals of Executive Order 13148,
``Greening the Government through Leadership in Environmental
Management'' by having environmental management systems in place at all
DOE sites by December 31, 2005.
I know that one of the issues of particular concern to this
Committee is implementation of Subtitle D of the Energy Employees
Occupations Illness Compensation Program Act and the Worker Safety and
Health rule and I look forward to discussing these issues with the
Committee members.
Mr. Chairman, I can think of no other position in government that
offers the challenges and potential rewards as that of Assistant
Secretary for Environment, Safety and Health. Should I be confirmed, I
will seek to provide leadership to help the men and women in EH
continue to meet their goal of assuring the health and safety of DOE
employees, and the protection of the environment and communities near
DOE facilities.
I appreciate your consideration of my nomination, and I very much
look forward to working with you and members of the Committee. Thank
you for the opportunity to appear before you today, and I look forward
to answering your questions.
The Chairman. Thank you very much, Mr. Shaw.
Senator Bunning, do you have any questions?
Senator Bunning. I have got lots of questions, but I do not
know if I should submit them all. I am going to ask some of Mr.
Shaw because it is very important.
The Chairman. Please do. You are in charge now, Senator
Bunning.
Senator Bunning. All right. Thank you, Mr. Chairman.
The Chairman. Thank you very much. We will call a meeting
to confirm you as soon as possible.
Mr. Shaw. Thank you, Mr. Chairman.
Ms. Harbert. Thank you, Mr. Chairman.
The Chairman. You are welcome.
Senator Bunning [presiding]. Mr. Shaw, as you know, the
Department of Energy has many issues with Paducah from cleanup
to workers' compensation. I helped set up a Kentucky DOE office
so that headquarters could more efficiently deal with that in
Lexington, Kentucky.
Given the complexities at the Paducah plant--have you ever
been to Paducah?
Mr. Shaw. Not yet, Senator. I look forward to coming down
there shortly.
Senator Bunning. The sooner, the better.
Mr. Shaw. Yes, sir.
Senator Bunning. Mr. Shaw, DOE continues to fight against
the bipartisan workers' compensation amendment. DOE has
squandered the past 4 years and $90 million of taxpayers' money
on this program. The result is still zero Kentucky workers and
only 31 claimants from other States have been paid. What are
you going to do to assure that ill workers are taken care of
not only in Paducah but around the country?
Mr. Shaw. Thank you, Senator. I know that you and other
members of the committee have worked very hard on this issue
and that you care very deeply about DOE workers. I know that
you have been very frustrated with the Department's performance
in this area. I also know that you know Secretary Abraham and
his staff and myself are working very hard to improve this
performance, and his commitment to this program and former DOE
workers is without question.
Having said that--and I know this is your amendment, sir--
Congress will soon make a decision on whether to move the
overall responsibility for this program over to the Department
of Labor, a change a number of members of this committee,
including yourself, support. Regardless of what that decision
is--and I know you know the administration's position is that
it should stay with DOE--it will be critical during this time
that DOE maintain a robust and healthy records retrieval
capability.
That has been my focus since assuming responsibility as
acting Assistant Secretary. Based on your statement earlier, I
want to pledge to you that should the program move to the
Department of Labor, you will have not only my personal but my
entire office's full cooperation. The bottom line is my office
needs to work harder and we need to work together to get the
workers paid the compensation that they deserve, sir.
Senator Bunning. Mr. Shaw, DOE has still not identified a
payor for as many as half of all the claimants who may be ill
from their DOE work. It is now letting a new contract for all
of the claims processing activities, and after 4 years, only 6
percent of the 25,000 claims have made it through the physician
panels. Given these facts, how will DOE be able to finish
processing all 25,000 claims within its projected 2-year
timeframe?
Mr. Shaw. Well, Senator, to answer your question in two
parts. First, the current contract that exists is under review
by procurement because my understanding is that there is an
awards process going on right now and no final decision has
been made regarding a contractor to carry out this important
part of the mission.
As far as the Department of Energy's ability to continue to
ramp up production and continue to try to process claims
through the physicians' panels, I do not want to sit here and
give you an exact date because I think you have heard exact
dates from my office before. What I would like to be able to do
is go back and look at the numbers that we have and give those
to your office and staff so I have a chance to review them more
thoroughly in order to give you a better answer.
Senator Bunning. At the last meeting we had on this
specific issue, Mr. Card gave us a 2-year. That is why I
brought it back.
Mr. Shaw. I understand, sir. I think that it is my
responsibility, as the acting Assistant Secretary and the
nominee for this post, to make sure that I review these numbers
thoroughly and give them to you and assess what I believe they
are.
[The information follows:]
DOE is currently processing approximately 150 cases per
week through the physician panels. If that rate were to
continue, we could assume that about 2,500 cases would complete
physician panel review in approximately a 17 week period.
Senator Bunning. Mr. Shaw, prior to your being nominated,
the Department of Energy indicated that the early lung
screening program that I fought to establish at the gaseous
diffusion plant was a bad idea and should be stopped. Do you
share this opinion about this valuable program? If not, what
are your plans for the future of the program?
Mr. Shaw. You are referring to the CT scan, Senator?
Senator Bunning. Yes.
Mr. Shaw. I met with Dr. Markowitz recently and he brought
to my attention this program that he works with at several
locations. Quite frankly, Dr. Markowitz and I had a very good
conversation. We discussed some of the science and technology
behind this, what I consider an important avenue for workers to
have available to them, should they choose to look into
obtaining these scans. I look forward to working with you and
your office to see if this is something that should be provided
in a more efficient fashion to workers. At this point in time,
I know it is not widely available, but we are looking at ways
to proceed and see whether or not it is the right thing to
continue to do.
Senator Bunning. In other words, you have not made an
opinion on this program at all?
Mr. Shaw. No, sir.
Senator Bunning. It has been in effect for quite a while.
Mr. Shaw. Yes. I know it has been in effect for quite a
while, and right now my understanding is that my predecessor
adopted an opinion that was against this. I certainly am
willing to meet with all the parties involved and see if this
is appropriate.
Senator Bunning. The Department of Energy has asserted that
its path forward will provide a payor for every claimant. Yet,
its proposal only indicates the Department will look for a
payor but does not guarantee a payor for every claimant. What
steps has the Department taken to ensure that all claims
approved by the Department of Energy's physician panels for
illnesses suffered at the Paducah plant will be paid, including
those who also have employment with USEC and those that could
affect the Kentucky special compensation fund?
Mr. Shaw. My immediate answer to you, Senator, is that the
Department of Energy will continue to work hard to seek willing
payors. We are not in a position, unfortunately, to order these
people to pay. We do our best to seek out willing payors and
have them pay the claims that these people deserve.
In regards to USEC and the special cadre of workers that
you mention, I would like to be able to provide those answers
for you in writing. I am aware of it, but I would prefer, sir,
if it is OK, to submit those to your staff.
[The information follows:]
In Kentucky, specifically at the Paducah Site, DOE has
identified Bechtel Jacobs as the ``willing payer'' for Paducah
Plant employees of Union Carbide, Martin Marietta Energy
Systems or Lockheed Martin Energy Systems who had exposures to
toxic substances prior to July 1998. Based on the applications
to date, we estimate that many of these workers will have a
willing payer for occupational exposures for which DOE will
issue ``do not contest'' orders, although in some instances
this will require additional coordination with other state
agencies. DOE continues to work with the current commissioner
to identify means for allowing the Kentucky State fund to waive
their defenses. DOE also continues to investigate mechanisms to
pay claims without ``willing payers.''
Senator Bunning. Okay, you can do that.
Mr. Shaw. Yes, sir.
Senator Bunning. This will be the last question. The DOE
just sent a request for proposal, RFP, out for a new contractor
to replace SEA, the current contractor that the Government
Accountability Office, GAO, the General Services
Administration, GSA, Inspector General, and others have found
significant problems with. How long will it take DOE to
transition from its current contractor to a new one? How can we
be sure that the DOE will select a qualified contractor? Have
any claimant experts, workers comp experts, or State workers
comp agencies endorsed the DOE's path forward, the DOE's
request for proposal, RFP, or the small list of companies to
whom it was sent?
Mr. Shaw. First, Senator, you raise and the GSA Inspector
General and the GAO have raised some very serious issues.
Please be assured that the Secretary takes this matter very
seriously, and at this time we are responding accordingly. The
Secretary appointed an internal review group to research the
history of DOE's relationship with several of the contractors
that are applying for this, and right now we are going to have
responses to provide to the GSA by September 24, in a few days.
One of the things I would also like to do, Senator, is take
again your question and provide you more thorough answers on
paper, sir.
[The information follows:]
During our market research, DOE did not hear from or learn
of companies that were interested in participating in this
procurement that would not be able to participate in a GSA
schedule procurement, nor had DOE received inquiries from any
such companies.
Because of uncertainties concerning the Subtitle D program,
the Department terminated the procurement in question and
initiated a short term bridge contract with SEA. DOE is working
closely with the Department of Labor to best meet the
programs's needs should the program be transferred to the
Department of Labor.
Senator Bunning. OK. You realize that the chairman of the
Finance Committee is also doing a very intensive study about
this same program?
Mr. Shaw. Yes, sir. I am aware of Senator Grassley's
concerns.
Senator Bunning. That is all the questions I have. I want
to thank you both for being here to testify.
This meeting is adjourned.
[Whereupon, at 10:24 a.m., the hearing was adjourned.]
APPENDIX
Responses to Additional Questions
----------
Department of Energy,
Congressional and Intergovernmental Affairs,
Washington, DC, October 8, 2004.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: On September 21, 2004, John Spitaleri Shaw,
Acting Assistant Secretary for the Office of Environment, Safety and
Health, testified as President Bush's nominee to serve as the Assistant
Secretary for the Office of Environment, Safety and Health.
Enclosed are the answers to questions that were submitted by
Members of the Committee for the hearing record.
If we can be of further assistance, please have our staff contact
our Congressional Hearing Coordinator, Lillian Owen, at (202) 586-2031.
Sincerely,
Rick A. Dearborn,
Assistant Secretary.
[Enclosures.]
Question From Senator Domenici
Question 1. Please outline the Office of Environment Safety and
Health's historical, current, and future plans for the Marshall Islands
Program.
Answer. Medical Program. On March 1, 1954, 253 people on Rongelap
and Utrik Atolls were exposed to radiation resulting from fallout
during the U.S. nuclear test Castle Bravo. Medical care was immediately
assumed by the Atomic Energy Commission and has continued under
successor agencies--the Energy Research and Development Agency and DOE.
DOE is required to pay for a program of ``adequate medical care and
treatment for any person who has a continuing need for the care and
treatment of any radiation illness or illness directly related to
Castle Bravo.'' Public Law 108-188, The Compact of Free Association
Amendments Act of 2003, continues this commitment into the future.
The original medical program provided annual medical screening
examinations, with an emphasis on detection and treatment of radiation
related illness. Treatment for other diseases and conditions found upon
examination was and currently is provided by the National Health Care
System in the Marshall Islands. During the program's early years,
services were delivered aboard ship. In 1997, the program was changed
to a land based program with doctors available to see enrolled persons
in Majuro City and those living on Ebeye Island near Kwajalein Island.
Quarterly visits to several remote islands filled out the land based
program.
During Fiscal Year 2005 execution, DOE will make funds available to
provide medical screening examinations and treatment for the affected
population.
Environmental Program. The DOE environmental monitoring program was
mandated in Public Laws 96-205 and 99-239 (Section 177). As originally
authorized, it was to include periodic environmental characterization
of Bikini, Enewetak, Rongelap, and Utrik Atolls to support decisions
about resettlement. After more than 20 years of characterization
activities, the program now answers specific scientific questions
related to resettlement decision making. The implementing agreement for
Section 177 included whole body counting and access to DOE scientists
for consultation and special studies. The historical agricultural and
environmental studies performed on Bikini Island will be completed in
FY 2005.
The current program supports environmental monitoring technical
support for resettling and settled populations on three of the four
Atolls. Most activity is directed to Enewetak Island and Rongelap
Island. This year the environmental contractor, Lawrence Livermore
National Laboratory, was directed to complete the backlog of studies
and technical summaries. DOE has exceeded the requirements of the
Section 177 implementing agreement by building and training local
technicians to operate three whole body counters in the Marshall
Islands. These devices are the standard for determining a person's
actual intake of radioactive materials from locally grown foods. Any
Marshallese citizen with a concern can arrange to have the procedure.
Results to date show insignificant exposures.
During Fiscal Year 2005 execution, DOE will make funds available to
support a core program of whole body counting and reporting of results
to the public, active resettlement environmental monitoring for
Rongelap, and special studies of new food crops.
Questions From Senator Bingaman
SANDIA NEW MEXICO MEDICAL SCREENING
Question 1a. The former worker medical screening program at Los
Alamos has been conducted by occupational physicians from Johns Hopkins
and University of New Mexico, and is scheduled to be closed down this
year. DOE has not initiated a former worker medical screening program
at Sandia Labs in New Mexico.
Has the DOE's model used over the past 7 years been effective in
serving the needs of the former workers across the DOE complex?
Answer. It is my understanding that these pilot projects, which
have served former workers from 11 DOE sites, have been very effective
in identifying possible exposures, identifying the appropriate medical
screening tests for workers with these exposures, conducting outreach,
and in offering medical screening in convenient locations.
Question 1b. Has this model been effective in serving the needs of
former workers at Los Alamos?
Answer. Yes, it is my understanding that this model has been very
effective in serving the needs of former workers at Los Alamos.
Question 1c. Would you support initiating a stand-alone medical
screening project at Sandia Labs, similar to the model used at Los
Alamos over the past five years?
Answer. I am committed to the availability of appropriate medical
screening for former DOE employees at all sites, including Sandia.
Before we make a decision on how to best proceed with any change in the
existing program, I believe we need to undertake a thorough review of
the Former Worker Medical Screening Program in order to evaluate the
effectiveness of the program, the results achieved and the operational
costs associated with the program. One of my first actions as Acting
Assistant Secretary was to direct that plans to award a contract for a
national screening program be put on immediate hold, until a thorough
analysis of existing projects and the needs of DOE sites currently
without screening programs can be concluded. If confirmed, I would look
forward to working with you and your staff on this important matter.
NIOSH-DOE MEMORANDUM OF AGREEMENT ON HEALTH STUDIES
Question 2a. DOE's Memorandum of Agreement with HHS with respect to
Health Studies expires at the end of September 2004. This MOA covers
health studies performed by ATSDR, CEH and NIOSH.
A key area of concern is the impact of a new MOA on health studies
on atomic workers by NIOSH's Health Energy Related Branch (HERB). HERB
performs epidemiological studies with funds transferred under this MOA.
Congress had contemplated assigning this research function to HHS as
part of the legislation in the late 1980s and early 1990s, but a
compromise was struck with the Secretary, Admiral James Watkins, to
have HHS perform this research through an interagency Memorandum of
Agreement. For NIOSH to credibly and effectively perform health related
research, it must have independence from DOE's involvement in the
selection of research areas, the types of studies, the methods of peer
review, the establishment of committees, and the types of research
proposals (extra mural and intramural). We are concerned that NIOSH's
independence could be eroded by DOE efforts to micromanage NIOSH and
its energy related research agenda.
What is your schedule for renegotiating this MOA?
Answer. The MOU has been renegotiated by the staffs of HHS and DOE
and is expected to be signed shortly by the Secretary of Energy and the
Secretary of HHS.
Question 2b. As a party to the MOA, will you work to assure that
NIOSH retains the independence which it deems necessary to credibly and
effectively carry out its research, including the selection of research
topics, the methods of peer review, the establishment of review
committees, and the use of both intramural and extramural researchers.
Answer. Yes, NIOSH independence is one of the factors important to
the success of this program. The MOU was intended to provide
independent scientific support as a means of restoring congressional
and public trust in the results of worker health studies and public
health activities at DOE facilities and in host communities. HHS and
DOE agree that the program has been successful. The new MOU, as
drafted, will continue NIOSH's independence in the conduct of the
studies, while responsibility for selecting and prioritizing the
studies will be shared by the two agencies.
Question 2c. What is the DOE's FY 05 budget for worker health
studies by NIOSH? For ATSDR studies? For CEH studies?
Answer. The FY 2005 budget request for these activities is $13.5
million, which assumes $5.0 million for NIOSH, $5.0 million for ATSDR,
and $3.5 million for NCEH.
Question 2d. Are any new studies of DOE sites by ATSDR required by
CERCLA or otherwise necessary at this point in time?
Answer. It is my understanding that no new studies of DOE sites by
ATSDR are required by CERCLA at this time.
LOS ALAMOS HISTORICAL DOCUMENT RETRIEVAL AND ASSESSMENT, LAHDRA,
PROJECT
Question 3a. Under the DOE-CDC Memorandum of Understand referenced
in question 2, the Department of Energy funds the CDC to review
historical documents at the Los Alamos National Laboratory to assess
the radiation dosage that may have been released to the surrounding
public the since the laboratory began operations. This project is a
continuation of other successful projects carried out at Hanford and
Oak Ridge's Y-12 facility. There have been some concerns regarding the
ability of the CDC to access the LANL documents due to security
classification and funding from the DOE to the CDC to carry forth this
project.
Does the Department support this project?
Answer. Yes, this project is a very high priority for both DOE and
HHS.
Question 3b. What is the status of this project?
Answer. I understand that NCEH will award the contract in the near
future.
Question 3c. Has the issue of document access by the CDC and its
contractors been resolved?
Answer. Yes, an effective special security procedure to deal with
access issues has been developed with NNSA support.
Question 3d. What is the funding for this project in FY2005?
Answer. FY 2004 funding is $1.0 million and FY 2005 funding is
expected to be $1.8 million.
radiation effects research foundation
Question 4a. The Department has historically funded the Radiation
Effects Research Foundation to study the long-term effects of atomic
bomb survivors in Japan.
What is the FY2004 funding level?
Answer. The FY 2004 funding level is $13.5 million.
Question 4b. What is the FY2005 funding level, and if it has been
reduced from FY2004 why?
Answer. The DOE FY 2005 budget request for all Health programs,
which includes the RERF program, is $45 million. During Fiscal Year
2005 execution, DOE will make funds available to support RERF
activities.
MARSHALL ISLANDS PROGRAM
Question 5a. The Office of Environment, Safety and Health is
responsible for providing mandated medical care for the residents of
Rongelap and Utrik who were exposed to acute radiation from the
``Bravo'' thermonuclear test in 1954, and for monitoring radiological
conditions in all of the Northern Marshall Islands in support of
cleanup and resettlement activities. DOE's budget for these activities
for FY 2002, FY 2003, and FY 2004 was $6.3 million, but there is no
longer a line item in FY 2005.
What is DOE's FY 2005 budget request for the Marshall Islands
Program?
Answer. The DOE FY 2005 budget request for all Health programs,
which includes the Marshall Islands program, was $45 million.
Question 5b. Please explain the new approach and assure the
Committee that DOE will continue to help meet our nation's unique
responsibility to those individuals and communities that were so deeply
affected by our weapons testing program.
Answer. DOE will provide appropriate medical screening examinations
and treatment of cancer for the remaining 109 people who were present
on Rongelap and Utrik Atolls during the 1954 Castle Bravo test. In
addition to this group, medical examinations and care are provided to
about 90 others. The current program supports environmental monitoring
technical support for resettling and settled populations on three of
the four Atolls. Most activity is directed to Enewetak Island and
Rongelap Island. This year the environmental contractor, Lawrence
Livermore National Laboratory, was directed to complete the backlog of
studies and technical summaries. DOE has exceeded the requirements of
the Section 177 implementing agreement by building and training local
technicians to operate three whole body counters in the Marshall
Islands. These devices are the standard for determining a person's
actual intake of radioactive materials from locally grown foods. Any
citizen of the Marshall Islands with a concern can arrange to have the
procedure. Results to date show insignificant exposures.
Question From Senator Craig
energy employees occupational illness compensation program act
Question 1. Mr. Shaw, I am certain that the members of this
Committee will explore with you their views and concerns regarding the
Energy Employees Occupational Illness Compensation Program Act. I have
met with a number of Idahoans--retired workers from the INEEL and
Argonne West--who have filed claims under this program.
I believe the DOE has made many efforts under the leadership of
Secretary Abraham and Deputy Secretary McSlarrow to get this claims
processing system on track somehow. I understand that some Senators
feel that the Labor Department will do a better job. It is their right
to hold that view.
But when I have met with my constituents, the thing they want most
of all is just to get access to the information they need, in a timely
fashion, and to keep the claims process moving. Although I do worry
that by ``switching horses mid stream'' from Energy to Labor--we might
slow the system down--I support any solution that will move these
people through this program with expediency and fairness.
Whatever ends up happening with the transfer of this program, do
you commit to working with all of our offices when we have individuals
workers that cannot get access to their exposure records--or the
history of what they were exposed to? If workers from Idaho feel they
are being stonewalled by DOE, or denied access to information about
their work history, will you work with me to resolve it?
Answer. I want to assure you and the Members of Congress, along
with DOE workers and their families, that no matter how the issue of
overall management of the program is resolved, DOE will aim to maintain
a healthy and robust program to obtain the worker health and exposure
records needed to address EEOICPA applications. Should Congress
transfer responsibility for administering certain EEOICPA
responsibilities to the Department of Labor, we will work closely with
them for a seamless transition and effective working relationship. If
any worker feels stonewalled or denied access to information about
their work history, my office will work with you to resolve their
concerns.
Question From Senator Kennedy
Question 1. The Office of Environment, Safety and Health has been
funding beryllium screening for former employees of DOE's beryllium
vendors in Massachusetts through the former worker medical screening
program. Boston University was assigned the responsibility to carry out
this medical screening program for former employees of Wyman Gordon and
Norton (now St. Gobain) by DOE with a $250,000 cooperative agreement.
The program has been very effective and additional beryllium-exposed
workers have been identified in eastern Massachusetts.
Will you ensure that additional funding is provided to complete
this beryllium screening program?
Answer. It is my understanding that this program has been very
effective in identifying beryllium disease in former employees of
beryllium vendors. Should I be confirmed we will complete medical
screening of former Norton employees and initiate medical screening for
beryllium-exposed workers in eastern Massachusetts consistent with
funding availability.
Questions From Senator Cantwell
Question 1. Mr. Shaw, I know you are aware of the screening program
for former Hanford workers exposed to on-the-job hazards, and I
appreciate your willingness to meet with my office on this subject.
While the larger DOE Energy Employees Compensation Program has been
mired in controversy and mismanagement, at least the Hanford screening
program has been successful. It has led to the early detection of
cancers, provided ongoing screening for long-latency illnesses and
resulted in more than 360 successful compensation claims through the
State of Washington. Frankly, it is one of the few success stories in
our effort to take care of those workers the federal government
inadvertently put in harms way.
That is why I'm troubled by the notion that DOE now wants to
reinvent the wheel and dismantle programs that are actually working, in
favor of a centralized program that could very well offer fewer
services and less care. Essentially, that's what DOE proposed earlier
this year before you arrived--with existing programs originally
scheduled to end on October 1, or in two weeks. While that deadline in
some cases was extended until next spring, workers are still being left
with nowhere to go. Since June, the program administered by the
University of Washington has had to turn away more than 500 former
Hanford workers who want to be examined. These programs--and the
workers they serve--have been left in limbo.
Mr. Shaw, will you commit to extending the Hanford former worker
program as soon as possible, so these workers on waiting lists can get
the medical screening, follow-up care and assistance they so richly
deserve?
Answer. Recognizing the concerns expressed by you and other Members
of the House and Senate, one of my first actions as Acting Assistant
Secretary was to direct that plans to award a cooperative agreement for
a national screening program be put on immediate hold until a thorough
analysis of existing projects and the needs of DOE sites currently
without screening programs could be conducted. If I am confirmed as
Assistant Secretary, I commit to working with Hanford stakeholders in
conducting that analysis. I further directed that all existing
programs, including the former worker medical screening program at
Hanford, continue offering full services through next Spring. At that
time, we will have the results from our analysis and a better
understanding of the financial resources required and availability of
funds for these important programs.
Question 2. I am aware that the extension through March of next
year was issued last month. But even if DOE were to approve a change in
``scope of work,'' to make it possible for more workers to get exams in
the next few months, it is my understanding that there would not be
enough time to provide the follow-up care and assistance for those
workers. And even if the program were able to ramp up from a stand-
still to granting the maximum number of exams per month, that would
still leave in limbo more than half of the more than 500 workers now on
the medical exam waiting list. And that's to say nothing of the more
than 3,000 who are at an earlier stage in the process, who have been
identified and have an interest in taking advantage of the screening.
We believe that, to get through this backlog, the program needs to
remain in place for three years--and that's even before another 30,000
workers have been located. But in the very least, can you commit to
extending this program through all of fiscal year 2005? I see that as
the only way that this program can continue to function in a way that
will not result in workers getting the rug pulled out from underneath
them.
Answer. As I mentioned previously, I have directed a complete and
through analysis of the Former Worker medical screening program. When
we have the results from that analysis, with a better understanding of
financial resources required to best meet the needs of former workers
at Hanford and all DOE sites, we will be able to make such a
determination.
Question 3. Mr. Shaw, I know that you are also aware of the
concerns that are being raised about the health and safety of current
workers at the Hanford tank farms. Earlier this summer, the National
Institute for Occupational Safety and Health (NIOSH) published a Health
Hazard Evaluation for the tank farms, and ``determined a potential for
significant occupational exposures and health effects from vapors
released from the hazardous waste storage tanks'' at Hanford.
Obviously, this is of grave concern to all of us concerned about
Hanford. One of the NIOSH recommendations, in particular, grabbed our
attention. Specifically, NIOSH recommended medical monitoring for
current tank farm workers who want it. Already, current worker
monitoring programs exist at sites in Kentucky, Tennessee and Ohio. And
in reviewing the legislation that created the existing monitoring
program, it seems that DOE already has the statutory authority to put
one in place at Hanford. A few questions on this topic:
Do you agree with NIOSH that establishing an independent
medical monitoring program for current Hanford tank farm
workers would be beneficial?
Do you believe this could be accomplished by expanding DOE's
existing cooperative agreement with the University of
Washington, which has run the screening program for former
production workers at Hanford?
Would you commit to working with us to put this program in
place?
Answer. I know that this is an important issue your office has been
following closely over the past several months. I have reviewed the
NIOSH report and concur with their recommendation that tank farm
workers ``concerned about possible work-related health problems should
be fully evaluated by a physician, preferably one familiar with
occupational conditions . . . and that individuals with definite or
possible occupational health problems should be protected from
exposures that are presumed to cause or worsen disease.''
I understand that AdvanceMed Hanford, the current health care
provider at Hanford, with input from tank farm workers, has developed a
comprehensive medical surveillance program for tank farm workers,
especially those workers with potential exposures to the head space
gases (waste intrusive workers). A second medical screening program is
available for workers potentially exposed to mercury. There is also a
separate program designed for workers in the tank farm area (such as
maintenance and custodial workers) but who are not identified as
hazardous waste workers.
If confirmed as Assistant Secretary, I will work closely with the
program management at DOE headquarters and the Office of River
Protection to evaluate the effectiveness of these programs and
determine if they are adequate to protect the tank farm workers. My
office will work with you and the Members of Congress, Environmental
Management, site management, and the affected workers to ensure that
the occupational medical needs of the tank farm workers are met.
Question 4. I want to return to DOE's proposal, issued earlier this
year, to consolidate its existing medical screening programs into a
single national vendor. The DOE proposal would consolidate sites that
have not had screening programs (but certainly need them), with those--
such as Hanford--that have had 5 years of program activities.
I am concerned that this one-size-fits-all screening program, as
described on the DOE's web site, appears to eliminate some of the most
desirable elements contained in the existing medical screening
programs--substantial local presence, independent physicians, active
involvement of workers in education and outreach, and a credible way to
tailor medical examinations to the specific hazards at a given site. It
appears that DOE's national vendor proposal was developed without an
external review, and without the input of affected stakeholders.
I have already asked that you take action to ensure that the
successful Hanford program be continued this year. However, I also
recognize the fact that DOE may want to extend screening programs to
other sites that have not yet benefited from them.
In charting a ``path forward'' for this program, would you agree to
set up a consultative process to solicit the views of the affected
workers, occupational medical professionals, the existing screening
programs and NIOSH?
Answer. Absolutely. As I mentioned earlier, one of my first
directives as Acting Assistant Secretary was to postpone plans to award
a contract to establish a national program until such an analysis can
be conducted. If confirmed as Assistant Secretary, I will certainly
consult with affected workers, occupational medical professionals, the
existing screening programs and NIOSH in conducting that analysis.
Question 5. Mr. Shaw, as I know you are aware/as I've previously
mentioned, there has been growing concern about the safety of today's
Hanford cleanup workers. I have already mentioned the report issued
this July by NIOSH, which found that ``vapor constituents may be
present at sufficiently high concentrations to pose a health risk to
workers.'' Partially as a result of that NIOSH report, more concerns
have been raised about potential hazards posed to tank farm workers,
resulting from the presence of a dangerous form of mercury recently
discovered at Savannah River. And meanwhile, the Chairman of the
Defense Nuclear Facility Safety Board earlier this month weighed in,
questioning the effectiveness of DOE's Integrated Safety Management
System for Hanford. As I understand it, the office you would head has
oversight of these Integrated Safety Management Systems.
Mr. Shaw, these are a few of the reasons I've felt like the DOE
Environment, Health and Safety Office has been missing in action over
the past few years. If confirmed, what are you going to do differently
in your approach to safety of Hanford cleanup?
Answer. I understand your frustrations. As you know, it is the
mission of the Office of Environment, Safety and Health to provide the
corporate leadership, performance goals, assistance, policies, programs
and feedback to enable DOE to excel in mission performance while
achieving excellence in safety and environmental stewardship. As you
stated, ISM is an integral part of achieving our goals. A major concept
of ISM is the integration of safety awareness and good practices into
all aspects of work so that work is conducted in such a manner that
protects workers. Safety must be embedded in every element of each
job--not a stand-alone program or a program that is imposed after the
fact.
Under the concept of ISM, safety is the responsibility of line
management and managers must be accountable. Oversight of ISM is
provided by the Office of Security and Safety Performance Assurance, an
independent office that reports directly to the Secretary. If confirmed
as Assistant Secretary, it will be my responsibility to provide
corporate leadership for ISM. I will take an aggressive approach to
assuring full and effective implementation at all DOE sites, including
Hanford, by being a leader, a hands-on manager, and a motivator. It
will be my intent to work with the Office of Environmental Management
and River Protection to augment their technical expertise in the
development of a comprehensive worker safety and health program
appropriate to the hazards present at the Hanford Tank Farms. We will
also bring in any additional technical expertise needed to assure that
Line Management and the contractor embrace any such program and
implement it in an efficient and cost effective manner.
As Acting Assistant Secretary, my philosophy is to work very
closely with line management at headquarters and the field on the
implementation of ISM and Quality Assurance programs at DOE sites. EH
understands the issues facing the entire complex and brings the unique
ability to bridge program lines and share best practices to correct
deficiencies. I have worked with line mangers and the Deputy Secretary
to issue a DOE Policy on environment, safety and health goals that
establishes a goal of zero injuries and accidents and will require
goals and metrics for improving safety performance. ISM implementation
is essential to accomplishing these goals and I am responsible for
reporting on our progress to the Secretary and Deputy Secretary. Should
I be confirmed I look forward to reporting our progress to Congress as
well and being accountable for the overall safety and health program
for DOE.
Question 6a. In that same report from this July, NIOSH references a
previous study it completed in 2000. NIOSH noted in its report this
summer that DOE has not yet implemented its recommendations from four
years ago. In it, NIOSH found that, even today:
Complete rosters of current and former DOE cleanup workers
do not exist;
Accurate and complete chemical exposure, work history and
medical records data are not available;
Individual workers cannot consistently be linked to their
exposure and medical data, as DOE has failed to standardize
data collection; and that
At the present time, the necessary information is not
available to conduct exposure assessments and hazard studies of
cleanup workers.
Over the past few months, we have debated how to compensate former
energy employees we inadvertently made sick during the Cold War and
World War II--and how difficult that is, because of the poor records we
kept at the time. I would like to think DOE has learned some lessons
since then about worker health and safety, and how to track
occupational hazards. Unfortunately, that doesn't seem to be the case.
Have you reviewed the 2000 NIOSH study, which recommends the
creation of ``rule-based, enforceable, complex-wide monitoring and data
collection standards'' for workers at DOE cleanup sites?
Answer. I have reviewed the 2000 NIOSH study recommending ``rule-
based, enforceable, complex-wide monitoring and data collection
standards.'' If confirmed as Assistant Secretary, I plan a review of
activities related to worker safety and health at the Hanford Tank
Farms. Working with the Congress and other stakeholders, we will create
a meaningful path forward to address this issue.
Question 6b. If confirmed, would you commit to developing
standards, consistent with NIOSH's recommendations?
Answer. Yes, I believe it is important that appropriate worker
safety and health standards are developed and enforced. In the course
of developing our Worker Safety and Health rule (10 CFR 851) we will
work with OSHA, NIOSH and stakeholders to be sure that the appropriate
standards are in place to protect workers from these types of chemical
exposures.
Questions From Senator Landrieu
Question 1. I understand that as part of the reprogramming request
to Congress, there was a plan proposed to get the program moving
aggressively. I believe that included a ramping-up of claims processed
by the contractor and sent to the physician panel at a rate of 200-300
per week, or clearing the backlog of claims by the end of next year. Is
the contractor that processes claims currently meeting that 200-300 per
week promise and on track to meeting that goal?
Answer. Upon receipt of appropriations transfer funds in June 2004
in the amount of $23.3 million, DOE authorized the Navy to authorize
the claims processing contractor to ramp up its operations to process.
Currently, the contractor is processing more than cases per week. If
there is continuity of funding into FY2005, we should be able to meet
out goal.
Question 2. One of the problems raised over the past year is the
requirement that there be a ``willing payer'' in each state. In other
words, someone to cut the check. Can you tell me if the DOE contractor
that processes claims has anything to do with that problem?
Answer. The responsibility for paying claims or for identifying
``willing payers'' for claims does not involve the DOE claims
processing contractor.
Question 3. Another issue that has been raised is the piling up of
processed claims now needing a final decision by a physician panel. Can
you tell me if the DOE contractor that processes claims has anything to
do with that problem?
Answer. Physician Panel activities are not the responsibility of
the DOE claims processing contractor.
Question 4. Let me close by then asking you what I asked Mr. Card
in March. I would be interest in your perspective. Do you believe the
contractor that processes EEOICPA claims for DOE has performed its
duties as tasked and directed by the Department?
Answer. Yes.
Questions From Senator Murkowski
Question 1. Has DOE found a willing payer for Alaskan claimants?
If yes, please identify the willing payer(s) DOE has found.
What percentage of Alaskan claims will each willing payer be
responsible for?
If no, has DOE completed its search for willing payers for
Alaskan claimants?
If DOE has not completed its search for a willing payer for
Alaskan claimants, please state when DOE believes it will
complete its search.
Please list all entities (including all levels of
subcontractors) that DOE has determined are not available as
willing payers for Alaskan claimants.
Answer. DOE has identified contractual relationships with the
following contractors in the respective time frames that will allow DOE
to issue a ``do not contest'' order. DOE can only issue such an order
if the particular worker was employed by the contractor at the time
frame specified for the contractor in the chart, and the worker's
illness was caused by exposures to toxic substances at DOE facilities
during that timeframe. To date, no such cases have arisen. If such
cases do arise, DOE will issue appropriate ``do not contest orders.''
Contractors for whom
Dates ``do not contest'' Issue ``Do Not
order can be issued: Contest'' Order to:
------------------------------------------------------------------------
1965-72, 1995................ REECo............... Bechtel Nevada (BN)
1965-72, 1995................ EG&G Measurements, Bechtel Nevada (BN)
Inc..
1995......................... Raytheon Services Bechtel Nevada (BN)
Nevada.
1965-72...................... Holmes & Narver..... Bechtel Nevada (BN)
1965-72...................... Fenix & Scisson of Bechtel Nevada (BN)
Nevada.
1965-72...................... Wackenhut Services, Wackenhut Services,
Inc.. Inc.
------------------------------------------------------------------------
DOE has not found a legal way to order contractors other than those
above to ``not contest'' workers' compensation claims. Although DOE's
search for ``willing payers'' continues, DOE, at this time, does not
expect additional ``willing payers'' to be identified for Alaska. The
following are contractor employers identified on applications for which
DOE has not identified a legal way to order the companies to ``not
contest'' State workers compensation claims:
Contractors for whom ``do not contest'' order can not be issued:
Beck CRK
Universal Services
Kiewit Centennial
Grasle Electric
S.S. Mullins
Chris Berg
Piquniq Management Corp.
Taywood, Berg, Riedel
Walsch Co
Western Marine
Parco
AP&H
J B International Construction
Alaska Plumbing and Heating
Alaska State Trooper
TVA Muscle Shoals
USI
Evergreen Helicopters
City Electric
Scofield Electric
ERA Helicopters
Question 2. A number of Alaskans have had claims pending with the
DOE for an unacceptably long time. Please explain what DOE is doing to
expedite the processing of claims for Alaskans.
Answer. DOE has increased the pace of its EEIOCPA Subtitle D case
processing operations. As of September 27, 2004, DOE has received 101
cases that involve employment at an Alaska facility. Of these,
29 have been completed.
an additional 28 have been prepared for physician panel
review, and are either under panel review or pending assignment
to a physician panel.
38 are under development.
7 are awaiting development.
Question 3. Several Alaskans with positive Physician Panel
determinations have not received any meaningful assistance from DOE in
pursing their positive determinations with the Alaska Workers
Compensation Board. Please provide a narrative explanation of what DOE
believes are its responsibilities to assist claimants who have received
positive Physician Panel determinations.
Answer. EEOICPA authorizes DOE to assist workers in seeking State
workers' compensation for illnesses caused by exposure to toxic
substances at DOE facilities. That assistance includes helping
applicants retrieve records from DOE sites and providing those records
to a panel of physicians appointed by NIOSH. The panels provide
determinations as to causation and applicants who receive a positive
determination also may be entitled to have a ``do not contest'' order
issued to their DOE contractor employers in the State workers'
compensation proceeding. DOE also assists applicants receiving positive
physician panel rulings with the State workers' compensation
application process. DOE cannot, however, provide legal advice or
represent applicants in State proceedings. In addition, the Alaska
resource center provides assistance to Subtitle D applicants who have
received a positive physician panel determination by providing
information on the Alaska workers' compensation system and processes;
the workers' compensation forms; and assistance with gathering required
medical information.
Questions From Senator Bunning
Question 1. According to your DOE web site, 'cases at panel' is the
number of cases that are currently being reviewed by a Physicians
Panel. 2,504 cases are currently 'at panel'. On the same site, DOE says
there are 190 physicians reviewing cases. That means that there are
more than 13 cases with each and every doctor. At DOE's claimed rate of
review--20 working days, or one month per case per doctor--there is
more than a year's backlog currently at panels. It has taken 4 years to
get the first 1,500 cases through panels, now another 2,500 are
languishing at panels. How long will these reviews really take?
Answer. DOE is currently processing approximately 150 cases per
week through the physician panels. If that rate were to continue, about
2500 cases would complete physician panel review in approximately a 17
week period.
Question 2. According to DOE's web site, as of July, 107 claims had
been filed in state workers' compensation. What is DOE doing for the
other 424 claimants with positive panel findings? Has DOE contacted
these claimants or 'assisted them in filing with the state'? What is
DOE doing for claimants without 'willing payers'--in states like
Kentucky?
Answer. DOE is contacting applicants with positive determinations
who have not yet filed for State workers' compensation. Resource Center
staff assists applicants in filing compensation applications,
particularly in the States where applicants must initiate the process.
DOE contractors are expediting their filings, reviews, and payments of
these cases.
In Kentucky, specifically at the Paducah Site, DOE has identified
Bechtel Jacobs as the ``willing payer'' for Paducah Plant employees of
Union Carbide, Martin Marietta Energy Systems or Lockheed Martin Energy
Systems who had exposures to toxic substances prior to July 1998. Based
on the applications to date, we believe many of these workers will have
a willing payer for occupational exposures for which DOE will issue
``do not contest'' orders. DOE continues to work with Kentucky State
officials to identify means for allowing the Kentucky State fund to
waive its defenses. DOE also continues to investigate mechanisms to pay
claims without existing ``willing payers.''
Question 3. The DOE's proposed regulations for worker health and
safety at DOE sites did not follow Congressional intent of DOE having
similar safety rules as OSHA has. After many Congressional offices,
including mine, told the DOE this, it agreed to rewrite the
regulations. Do you know when the DOE plans to issue new proposed
regulations for worker health and safety at DOE?
Answer. Recognizing the concerns expressed by you and other Members
of Congress, as well as the Defense Nuclear Facilities Safety Board and
other stakeholders, the Secretary directed that the draft rule be
pulled back and rewritten to better reflect these concerns. I believe
the revised proposed rule will be issued shortly for public comment. I
look forward to hearing your views on this revised version once it is
issued.