EEOICPA BULLETIN NO.08-07
Issue Date: November 1, 2007
Effective Date: November 1, 2007
Expiration Date: November 1, 2008
Background: 42 U.S.C. § 7384l(7) defines “covered beryllium employee” in three different contexts. In § 7384l(7)(C), a “covered beryllium employee” is defined as a person who was exposed to beryllium in the performance of duty and is also “a current or former employee of a beryllium vendor, or of a contractor or subcontractor of a beryllium vendor, during a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the Department of Energy” (DOE). This means that a “covered beryllium employee” under § 7384l(7)(C) can be an employee of a vendor during a period when the vendor was producing or processing beryllium for DOE, as well as during a period when the vendor was engaged in “activities related to” producing or processing beryllium for DOE. In 20 C.F.R. § 30.205(a)(2)(iii) (2006), one of these “activities related to” is identified as environmental remediation of a vendor’s facility pursuant to a contract between the vendor and DOE, and the Division of Energy Employees Occupational Illness Compensation (DEEOIC) took the position in a Part B claim by an employee who only worked for a vendor after it had ceased producing or processing beryllium for DOE that there were no vendor “activities related to” such producing or processing other than the one described in § 30.205(a)(2)(iii). After DEEOIC denied the claim, the employee filed a petition for review of that denial in U.S. District Court, and in Brigham v. Office of Workers’ Compensation Programs, 477 F.Supp.2d 160 (D.D.C. 2007), it was held that § 30.205(a)(2)(iii) did not describe the only vendor activity “related to” producing or processing beryllium for DOE. This Bulletin describes the additional vendor activity that DEEOIC found was related to producing or processing beryllium for DOE in the final decision that it subsequently issued in the employee’s Part B claim, and the type of findings of fact and conclusions of law that were needed in the final decision. This Bulletin also provides guidance regarding some other beryllium vendor activities that DEEOIC considers to be related to producing or processing for the purpose of § 7384l(7)(C), and general procedures to be followed in all other claims where none of an employee’s work for a beryllium vendor occurred while the vendor was producing or processing beryllium for DOE.
References: 42 U.S.C. § 7384l(7)(C); 20 C.F.R. §§ 30.205(a)(2)(iii) and 30.206.
Purpose: To provide guidance regarding vendor activities that are considered by DEEOIC to be related to processing or producing beryllium for DOE, and procedures to be followed in all claims where the employee only worked for a beryllium vendor either before or after the covered period shown for that vendor in ECMS.
Applicability: All staff.
1. In the claim noted above, the claimant submitted a number of documents showing that the beryllium vendor where he had worked had contracted with another firm (not DOE) to remediate and demolish a building at the vendor’s facility in which it had processed beryllium for the Atomic Energy Commission (AEC) in the 1960’s. The beryllium vendor had last processed or produced beryllium for the AEC in 1975 (this was also the end date for that vendor in ECMS). The employee started working for the beryllium vendor in June of 1983, and the remediation and demolition of the building in question occurred during the single calendar year 1985.
2. Because this evidence suggested that the employee could have been exposed to residual beryllium contamination due to the vendor’s former work for the AEC, further development of the record was necessary. To accomplish this, the Director of DEEOIC issued an administrative subpoena directing the vendor to produce all relevant evidence in their possession regarding the beryllium work they did for both the AEC/DOE and the private sector.
3. Because the evidence submitted by the beryllium vendor in response to the subpoena met the criteria in 20 C.F.R. § 30.206(d) for persuasiveness, DEEOIC considered whether the evidence supported enlarging the time frame for the vendor under § 30.206(b). It determined that in addition to the expansion for all beryllium vendors already contained in § 30.205(a)(2)(iii) noted above, it would be appropriate to expand the covered time period for that particular vendor to include the additional year 1985 because it was engaged in “activities related to” its prior producing or processing of beryllium for the AEC/DOE when the vendor’s management took conscious action by contracting with a firm to remediate more than a “de minimus” amount of residual beryllium contamination remaining from that producing or processing, as supported by the determination of the National Institute for Occupational Safety and Health (NIOSH) that there was a “potential for significant residual contamination outside of the period in which weapons-related production occurred” at the beryllium vendor’s facility in its revised June 2004 Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities, at Appendix B-2, page 4. The final decision in the Brigham claim is EEOICPA Fin. Dec. No. 23005-2002 (July 31, 2007); this decision will be posted to the FAB Decision Database on the DEEOIC website.
4. As a result of the adjudication of the above-noted claim, DEEOIC has determined that effective immediately, the expansion beyond the period during which a vendor is engaged in the processing or producing of beryllium for DOE is not limited to the one situation found in § 30.205(a)(2)(iii), which involves time periods during which “environmental remediation of a vendor’s facility was undertaken pursuant to a contract between the vendor and DOE.” Instead, DEEOIC will consider whether additional activities of a vendor are “related to” that vendor’s processing or producing in future claims. Except as described in Action Item Nos. 5-8 below, when a claims examiner (CE) encounters a claim in which the employee worked for a beryllium vendor completely outside of the period for that vendor that appears in ECMS, and it is alleged that the vendor was “engaged in activities related to” its processing or producing of beryllium for DOE at some point during the time the employee worked for the vendor, the CE must forward the case file to the Policy Branch for consideration of whether the employee is a “covered beryllium employee.”
5. With respect to claims where the “activities related to” are activities of the vendor involving remediation of its facility after the time period for that vendor listed in ECMS, the CE checks Appendix B-2 of NIOSH’s revised 2004 Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities to see if NIOSH found “potential for significant residual contamination outside of the period in which weapons-related production occurred” at the facility. If there is such a finding for the vendor in question, the CE proceeds to develop the factual evidence with respect to the issue of “conscious” management action.
6. If the evidence in the case file is not sufficient to establish that the management of the beryllium vendor took some form of “conscious” action to remediate the residual beryllium contamination (actions of the employee alone are not actions of the vendor’s management), but the claimant has made a threshold showing sufficient to convince the CE that further development is warranted, a request should be sent to the vendor asking for evidence of management action taken to remediate the residual beryllium contamination. If after the CE received additional evidence in response to the request there is still some doubt as to whether the action taken is the equivalent of the management action that led to the acceptance of the Brigham claim, or if the CE encounters a lack of cooperation on the part of the vendor, refer the case file to the Policy Branch for further action.
7. Once the appropriate development is completed, the CE determines whether there is sufficient evidence to show that the beryllium vendor’s management took “conscious” action to remediate residual beryllium contamination as demonstrated by NIOSH’s revised 2004 Report, and if there is, the period of time during which this “conscious” action took place. If the CE can answer the first one of these inquiries in the affirmative, and the employee worked for the vendor at the vendor’s facility for at least one day during the period of the “conscious” action, the CE proceeds to adjudicate the case using the normal procedures of Chapter 2-700 (February 2007) of the Federal (EEOICPA) Procedure Manual. In the findings of fact for the recommended decision (as well as the final decision), the CE must make findings on the period of time during which the vendor was processing or producing beryllium for DOE, NIOSH’s determination that there was residual beryllium contamination at the facility, what the “conscious” action of the vendor’s management was, and how that “conscious” management action remediated more than a “de minimus” amount of residual beryllium contamination at the facility after the vendor ceased producing or processing beryllium for DOE.
8. In addition to the above-noted situation, DEEOIC has determined that certain other activities of a beryllium vendor are considered to be “related to” the production or processing of beryllium for sale to, or use by, DOE under § 7384l(7)(C) of EEOICPA. Those activities are:
(a) Packing/shipping activities necessary for the delivery of beryllium or machined beryllium to the AEC/DOE after production or processing has stopped.
(b) Relocation of AEC/DOE-owned beryllium machining equipment from one building to another at a beryllium vendor facility, after producing or processing under one contract has stopped and before it begins under another contract.
Disposition: Retain until incorporated in the Federal
(EEOICPA) Procedure Manual.
PETER M. TURCIC
Director, Division of Energy Employees
Occupational Illness Compensation
Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, District Office Mail & File Sections