U.S. DEPARTMENT OF LABOR OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
   ILLNESS COMPENSATION
FINAL ADJUDICATION BRANCH

 

EMPLOYEE:

[Name Deleted]

CLAIMANT:

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBER:

20120912-81095-1

DECISION DATE:

May 30, 2013

 

NOTICE OF DENIAL OF

REQUEST FOR RECONSIDERATION

 

This is the response to the May 9, 2013 request for reconsideration of the April 10, 2013 decision of the Final Adjudication Branch (FAB) on this claim for chronic beryllium disease (CBD) under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  In that decision, FAB concluded that while the employee worked for the Allied Chemical Corporation from January 15, 1959 to June 29, 1964 at its facility in Metropolis, Illinois, he was nevertheless not entitled to benefits under Part B for CBD because the Allied Chemical Corporation is an Atomic Weapons Employer (AWE), and employees of AWEs are only potentially eligible to receive Part B benefits for radiogenic cancer.

 

In support of the May 9, 2013 reconsideration request, the employee’s representative raised a number of interwoven and somewhat confusing arguments, all of which he raised previously in the adjudication of this claim for CBD.  To the extent I can discern what they are, those arguments are as follows:

 

1.  Because the Division of Energy Employees Occupational Illness Compensation (DEEOIC) does not dispute that “operations” on behalf of the Atomic Energy Commission (AEC) and the Energy Research and Development Administration (ERDA) took place at the Metropolis plant, FAB should have concluded that there was a contractual relationship between the AEC, and also ERDA, and the Allied Chemical Corporation such that the Metropolis plant meets the definition of a “DOE facility” set out in § 7384l(12) of EEOICPA.[1]

 

2.  DEEOIC has wrongly refused to acknowledge that there are suggestions that beryllium was present at the Allied Chemical Corporation’s Metropolis plant.

 

3.  DEEOIC has wrongly refused to recognize the presence of uranium “daughter” products that were associated with the processing work that occurred at the Allied Chemical Corporation’s Metropolis worksite.

 

4.  The Metropolis worksite will be designated for remediation under the Formerly Utilized Sites Remedial Action Program (FUSRAP), and therefore workers employed there doing clean-up will be covered under Part E.

 

5.  DEEOIC failed to follow prior FAB decisions regarding atomic weapons employees, as well as EEOICPA Circular No. 08-05 (issued May 2, 2008) on the status of the Office of Scientific and Technical Information (OSTI) worksite in Oak Ridge, Tennessee as a DOE facility and EEOICPA Bulletin No. 07-15 (issued May 9, 2007) on the class of Allied Chemical Corporation employees added to the Special Exposure Cohort (SEC), in its adjudication of the employee’s Part B claim for CBD.

 

6.  Employees of a contractor that had allegedly concealed transuranics at the Metropolis worksite from the NRC were hired by DEEOIC to compile both Site Exposure Matrices (SEM) information for the Metropolis worksite, as well as for the site profile used by NIOSH to perform dose reconstructions for workers at that same worksite, and this created an impermissible conflict of interest.

 

In support of the above arguments on reconsideration, the representative submitted additional copies of the following evidence that was already in the employee’s file:  (1) copies of 5 U.S.C. §§ 702 and 706; (2) a report of a June 22, 2006 public meeting that NIOSH held on the site profile used for performing dose reconstructions for workers at the Metropolis worksite; (3) a partial copy (provenance unknown) of an agreement by which the Allied Chemical Corporation undertook to covert natural uranium concentrates owned by an unidentified entity into uranium hexafluoride[2]; (4) a partial manifest (provenance also unknown) purporting to list chemicals that the Allied Chemical Corporation stored at an unspecified location for DOE; (5) extracts from EEOICPA Circular No. 08-05; (6) extracts from EEOICPA Bulletin No. 07-15; (7) extracts of general information from the FUSRAP website; (8) extracts from November 5, 2012 DOE memoranda on allegations of conflicts of interest among contractors performing remediation work for DOE at the Portsmouth Gaseous Diffusion Plant and at the Oak Ridge Reservation; (9) a copy of a September 1, 2010 medical report already in the case file; (10) a copy of the employee’s August 13, 2012 statement already in the case file; and (11) extracts from EEOICPA Fin. Dec. No. 10043931-2006 (Dep’t of Labor, March 10, 2008).  In addition, the employee’s representative also submitted new evidence consisting of extracts from EEOICPA Fin Dec. No. 2158-2003 (Dep’t of Labor, July 11, 2008), EEOICPA Fin. Dec. No. 25833-2004 (Dep’t of Labor, October 20, 2004), and EEOICPA Fin. Dec. No. 55211-2004 (Dep’t of Labor, September 16, 2004).

 

After careful consideration of the above arguments and evidence, and for the reasons set forth below, the employee’s request for reconsideration is hereby denied.

 

With regard to the first argument, the benefits available under Part B of EEOICPA are only payable to claimants who meet their burden of proof to satisfy the eligibility requirements set out in the statute.  In this Part B claim for CBD, the employee alleges that he qualifies as a DOE contractor employee because he worked at the Allied Chemical Corporation’s Metropolis plant, which he asserts fits within the statutory definition of a DOE facility set out in § 7384l(12).  However, even though DEEOIC does not dispute that “operations” occurred at the Metropolis plant, since there is ample evidence showing that the Allied Chemical Corporation processed natural uranium concentrates into uranium hexafluoride for the AEC at that location, first under a processing contract with the AEC that ran from 1959 through June 30, 1964[3], and thereafter for both the AEC and ERDA on an “as needed” basis through 1976[4], it is not enough to merely establish that “operations” occurred at a worksite.  The representative contends that the Allied Chemical Corporation’s Metropolis plant meets the statutory definition of a DOE facility because DOE or one of its predecessor agencies “entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services” as required by § 7384l(12)(B)(ii).  However, FAB concludes that none of the submissions from the representative contained any persuasive arguments or factual evidence in support of the assertion that the contractual relationship between the Allied Chemical Corporation and the AEC/ERDA satisfies the statutory requirements of § 7384l(12)(B)(ii) of EEOICPA.  Therefore, the employee has not met his burden of proof to establish this crucial point.

 

In response to the second argument listed above, the question of whether or not beryllium was present at the Metropolis plant is irrelevant to the employee’s claim for CBD under Part B, because atomic weapons employees are not eligible for benefits due to that particular “occupational illness.”  Under § 7384l(7) of EEOICPA, the term “covered beryllium employee” only refers to employees who worked at either DOE facilities or beryllium vendor facilities, while the employee here worked at an AWE facility.

 

As for the third argument, this concerns the amount of radiation to which the employee was exposed while working at the Allied Chemical Corporation’s Metropolis plant, and that question is within the exclusive jurisdiction of the National Institute for Occupational Safety and Health (NIOSH), not DEEOIC, as noted in 20 C.F.R. § 30.2(b) (2013).  In addition, the radiation to which he was exposed is irrelevant to his Part B claim for CBD, which was the only claim of the employee that was addressed by FAB on April 10, 2013.

 

With respect to the fourth argument, the assertion that the Allied Chemical Corporation’s Metropolis plant will be designated for remediation is based on a belief that such designation will be made in the future.  However, as of the present time, the Metropolis plant has not been so designated under FUSRAP.[5]  Furthermore, even if the Metropolis plant had been designated for remediation under FUSRAP, such designation would be irrelevant to the employee’s Part B claim for CBD.

 

As for the fifth argument set out above, the FAB decisions in question are irrelevant to this CBD claim because they provide no support for the argument that the Metropolis plant is a DOE facility.  Also, the reason why DEEOIC determined in EEOICPA Circular No. 08-05 that OSTI was a DOE facility was based, in part, on the fact that DOE and its predecessor agencies had a “proprietary interest” in that worksite under 42 U.S.C. § 7384l(12)(B)(i), and neither DOE nor any of its predecessor agencies has ever had such an interest in the Metropolis plant, which has always been owned by the Allied Chemical Corporation and its corporate successors.  In addition, EEOICPA Bulletin No. 07-15 only concerns the class of Allied Chemical Corporation employees, all of whom are atomic weapons employees, that was added to the SEC and does not support the employee’s belief that the Metropolis plant is a DOE facility.

 

And finally, with respect to the sixth argument, DEEOIC did not hire the contractors that prepared the site profile used by NIOSH to perform dose reconstructions for workers at the Allied Chemical Corporation’s Metropolis plant, NIOSH did.  Also, there is no toxic substance exposure profile for the Metropolis plant in SEM because it is an AWE facility, and SEM only contains profiles of worksites that are either DOE facilities or uranium mines and mills covered under Part E.  And more importantly, this argument is irrelevant to both the employee’s Part B claim and his representative’s assertion that the Metropolis plant satisfies the statutory definition of a DOE facility.

 

Therefore, I must deny the employee’s request for reconsideration because he has not submitted any arguments or evidence that would justify reconsideration of the April 10, 2013 final decision on his Part B claim for CBD.  That decision of FAB is therefore final on the date of issuance of this denial of the request for reconsideration.  See 20 C.F.R. § 30.319(c)(2).

 

Washington, DC

 

 

 

 

David F. Howell

Hearing Representative

Final Adjudication Branch



[1]  The representative apparently believes that the Nuclear Regulatory Commission (NRC) is a predecessor agency of DOE.  This is incorrect, since the NRC and DOE were created simultaneously when ERDA was split into two agencies on October 1, 1977 by the “Department of Energy Organization Act,” Pub. L. 95-91, 91 Stat. 565.

 

[2]  While the representative may believe that this agreement is a contract between DOE (or one of its predecessor agencies) and the Allied Chemical Corporation, the language used in the part of the agreement in the file suggests that it was actually an example of the type of agreement that the Allied Chemical Corporation entered into to process uranium concentrates owned by private nuclear power plants.  These agreements became possible following passage of the Private Ownership of Special Nuclear Materials Act, Pub. L. No. 88-489, 73 Stat. 602 (August 26, 1964).  See 42 U.S.C. § 2011 note.  See also Opinion No. B-207463 (Comp. Gen. December 27, 1984), 1984 WL 47145.

 

[3]  See http://www.converdyn.com/metropolis/mtwhistory.html and http://www.Honeywell-metropolisworks.com/about-metropolis.php (both sites last visited on March 26, 2013).  See also “Annual Report to Congress of the Atomic Energy Commission for 1964” (January 1965), p. 48.

 

[4]  E.g., “Annual Report to Congress of the Atomic Energy Commission for 1959” (January 1960), p. 63; “Annual Report to Congress of the Atomic Energy Commission for 1964” (January 1965), p. 48; “Annual Report to Congress of the Atomic Energy Commission for 1965” (January 1966), p. 37; “Annual Report to Congress of the Atomic Energy Commission for 1966” (January 1967), p. 362; “Annual Report to Congress of the Atomic Energy Commission for 1967” (January 1968), p. 274.

 

[5]  A comprehensive listing of all covered worksites designated for remediation under FUSRAP can be found at the following DOE website:  http://energy.gov/lm/sites/lm-sites/considered-sites (last visited May 21, 2013).  A review of the website reveals that the Allied Chemical Corporation’s Metropolis plant is not listed as a covered worksite under FUSRAP.