EEOICPA BULLETIN NO.05-02

Issue Date: April 13, 2005

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Effective Date: April 13, 2005

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Expiration Date: April 13, 2006

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Subject : Processing Residual Contamination Site Claims

Background :An amendment to the National Defense Authorization Act for Fiscal Year 2002 mandated that the National Institute for Occupational Safety and Health (NIOSH) identify and report on all facilities covered under the EEOICPA where the potential for significant residual contamination existed outside of the period in which weapons-related production occurred.

NIOSH identified certain facilities with the potential for significant residual contamination outside of the EEOICPA covered time periods. The current report, “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,” was revised in June 2004. Appendix A-2 of the NIOSH report lists 96 facilities that have been identified to date. Of these facilities, 49 have defined residual contamination periods, 29 require continued NIOSH review (as part of the Congressionally-required NIOSH review discussed further below), and 18 sites have AEC/DOE activities indistinguishable from non AEC/DOE activities. i.e., NIOSH cannot determine with certainty which activities contributed the residual contamination.

On October 28, 2004 , the President signed into law an amendment to Part B of the EEOICPA mandating that NIOSH prepare an updated report regarding all facilities where the potential for significant residual contamination existed outside of the originally covered employment period. This updated report must be submitted to Congress not later than December 31, 2006 . NIOSH continues to assess other facilities to determine if the potential for significant residual contamination existed at those sites for inclusion in its updated report to Congress.

In addition, the new amendment extends coverage for work performed during the time periods identified by NIOSH in which the potential for significant residual contamination existed at a facility. As such, significant residual contamination periods identified by NIOSH are now included as covered timeframes under Part B of the EEOICPA, and work performed during these periods is deemed covered.

Due to the nature and levels of radioactivity at most sites, employment during just the residual contamination period will probably not provide sufficient dose to result in a probability of causation of at least 50% based upon NIOSH cancer risk computer models, as the health endangerment model generally exhibits a relatively low corresponding radiation dose value. As such, the fact that residual contamination was identified during any given period of employment does not necessarily mean that the presence of such contamination actually caused an individual any adverse health effect.

Nonetheless, now that such residual contamination periods are considered covered under the EEOICPA, claims denied based upon the covered time frame issue may be reopened and forwarded to NIOSH for the preparation of a dose reconstruction. In addition, all future claims arising out of such facilities identified by NIOSH must undergo the dose reconstruction process. Finally, in all such cases, only claims with verified employment exclusively within the residual contamination period will be evaluated by NIOSH based upon the residual contamination model.

References : Energy Employees Occupational Illness Compensation Act of 2000, 42 U.S.C. § 7384 et seq.; FY 2005 Defense Authorization bill, Public Law 108-375, which contains amendments to the Energy Employees Occupational Illness Compensation Program Act (EEOICPA); and the NIOSH “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,” revised June 2004.

Purpose : To provide procedures for processing claims for workers with employment at AWEs identified by NIOSH as having the potential for significant residual contamination outside of the original covered time periods under Part B of the EEOICPA.

Applicability : All staff.

Actions :

1. The addition of residual contamination periods to the covered periods for AWEs encompasses both claims already denied due to employment outside of the covered employment period, i.e., t he period in which weapons-related production occurred, as well as future claims yet to be submitted. The DEEOIC has identified all Part B claims denied due to work performed during a non-covered time period now covered as a result of the new amendment. All affected claimants will be contacted and afforded the opportunity to request a reopening of their claim for benefits based upon the findings provided by NIOSH. In the future, DEEOIC will allow other claimants to request a reopening if their claim for benefits was denied and NIOSH found that the potential for significant residual contamination existed at a facility during the time in which employment took place.

When a previously denied claim is reopened, a claim is remanded by FAB, or a new claim for compensation is submitted, the claims examiner (CE) reviews the documentation submitted with the EE-1 or EE-2 and EE-3 forms . Based on this review, the CE determines whether the claimant has identified employment that falls exclusively within some portion of the expanded covered period based on the presence of significant residual contamination. NIOSH already considers exposure from residual contamination in the dose reconstruction of any claim with employment within any portion of the original covered period. The attached table is a summary of Appendix A-2, “Residual Radioactivity Summary” of the NIOSH report, which identified 96 facilities as having the potential for significant residual contamination as a result of weapons-related production .

This table lists the 96 facilities NIOSH identified as having the potential for significant residual contamination outside of the periods in which weapons-related production occurred and lists the time periods for residual contamination. This list is not exhaustive, as other facilities may be identified and added by NIOSH. The CE must identify the facility on the table where the employee worked and proceed according to Actions # 2 through 4, as appropriate.

2. Some facilities are listed in the table with defined time periods, i.e., with both a start and end year. This period includes both the original AEC/DOE covered period and the additional period of residual contamination. For these facilities, proceed to Action #5.

3. Some facilities are listed in the table as “ NIOSH facility review continuing.” As noted earlier, NIOSH is charged with reviewing these facilities and submitting an updated report to Congress not later than December 31, 2006 . If the facility in question is listed as one of these facilities, the claim must be denied, citing the continued evaluation of the facility’s residual contamination period by NIOSH staff.

4. Some facilities are listed in the table with a time period and the phrase, “ AEC/DOE activities indistinguishable from non AEC/DOE work.” The time period also has a “+” sign following the end year of the period, which denotes NIOSH’s uncertainty as to the whether the end date for the residual contamination period may be later than the listed year. For these facilities, proceed to Action #5. If the cancer diagnosis year is after the last year listed, NIOSH will include additional dose from residual contamination through the year of diagnosis.

5. Development of medical and employment information should proceed in the usual manner. If the evidence is unclear as to whether employment falls within the period of significant residual contamination, the claimant should be asked to provide clarification. The CE must review any documentation submitted by the claimant and undertake any additional development necessary to clarify the individual’s medical and employment status.

6. Once the CE has determined that the person named in the claim has a diagnosed primary cancer (other than chronic lymphocytic leukemia (CLL)) and covered employment the claim must be prepared for referral to NIOSH for a dose reconstruction per Sections 7 and 8 of Chapter 2-600 of the Federal (EEOICPA) Procedure Manual. Mere exposure to residual radioactive contamination at any of the facilities identified by NIOSH is not sufficient to establish that a diagnosed cancer is work related. A dose reconstruction is required to determine the probability that a diagnosed cancer was “at least as likely as not” (a 50% or greater causation value) caused by occupational exposure to radiation.

7. Upon receipt of the dose reconstruction by the district office, the claim is processed in the same manner as all NIOSH cases and a recommended decision is prepared.

8. FAB personnel must be vigilant for any cases with employees who worked at the listed facilities and that have a recommended decision to deny. If the case does not have a NIOSH dose reconstruction and falls under Action # 2 or 4, FAB must remand the case to the district office for referral to NIOSH.

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, and District Office Mail & File Sections

Attachment 1: Significant Residual Contamination Outside Of the Periods in Which Weapons-Related Production Occurred