Chapter 2-0500 Establishing Covered Employment

1. Purpose and Scope. The EEOICPA lays out a set of employment criteria which must be satisfied before a claim can be considered for compensability. These criteria, taken together, form the basis of covered employment. This section of the EEOICPA Procedure Manual lays out the guidance to be followed by the Claims Examiner (CE) for gathering and evaluating evidence to determine whether a claimant meets the necessary employment criteria specified in EEOICPA.

2. Facility Coverage. The EEOICPA provides facility definitions that serve as the basis for determining covered employment. The following summaries provide a general definition of each type of facility covered:

a. Atomic Weapons Employer (AWE) Facilities. An AWE facility means a facility, owned by an atomic weapons employer that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling. Coverage at the facility may be further extended after the period of processing or production of radioactive material for use in a weapon, if there is a finding in a NIOSH report on residual radioactive contamination that the potential exists for residual radioactive contamination at that facility. AWE facilities are designated by the Department of Energy (DOE).

(1) Coverage extends only to the employees who worked directly for the AWE at the facility. Contractor or subcontractor services provided on-site or off-site for an AWE are not covered.

(2) Atomic weapons employees are covered under Part B of the EEOICPA for cancer only. No coverage is afforded these employees under Part E.

(3) Designating additional AWE facilities is the responsibility of DOE; however, applicable time frames for AWE production activities at a particular facility are determined by DOL.

(4) Determinations on whether an AWE facility has a period of residual radioactive contamination and the length of that period are the responsibility of the NIOSH. Periodic reports are issued listing affected sites. Facilities with residual radioactive contamination are covered as AWE facilities even if there is a change in the owner or operator of the facility.

b. Beryllium Vendor (BE Vendor) Facilities. Be Vendor facilities are companies which are either named in the Act or DOE has determined that they processed or produced beryllium for sale to, or use by DOE. The Act names several beryllium vendors by corporate name and these are known as statutory beryllium vendors. Any employee of a statutory beryllium vendor who worked for the vendor during periods when the company was engaged in activities related to the production or processing of beryllium for sale to or use by DOE, has covered employment, regardless of work location. Other beryllium vendors, which are location-specific, were designated by DOE through publication in the Federal Register. The final list of designated beryllium vendors was issued on December 27, 2002.

(1) Beryllium vendor coverage extends to direct employees of the vendor, its contractors or subcontractors, or any Federal employee who may have been exposed to beryllium at a facility owned, operated or occupied by the vendor.

(2) Coverage for beryllium vendor employment is limited to those benefits available under Part B of the EEOICPA for beryllium sensitivity and chronic beryllium disease.

c. Department of Energy (DOE) Facilities. A DOE facility means any building, structure, or premise, including the grounds upon which such building, structure, or premise is located in which operations are, or have been, conducted by, or on behalf of, the DOE (except for buildings, structures, premises, grounds, or operations covered by Executive Order 12344, dated February 1, 1982, pertaining to the Naval Nuclear Propulsion Program); and with regard to which the DOE has or had either (A) a proprietary interest; or (B) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

(1) The extent of benefits available to those who worked at DOE facilities is dependent on the type of employment, specifically whether the employee was a DOE federal employee or an employee of a DOE contractor or subcontractor. Under Part B, coverage extends to both DOE federal employees and contractor or subcontractors employees working at the site, while under Part E coverage is only extended to contractor or subcontractor employees.

(2) The definition of DOE includes its predecessor agencies including:

(a) Manhattan Engineer District (MED)(August 13, 1942-December 31, 1946)

(b) Atomic Energy Commission (AEC)(January 1, 1947 – January 18, 1975)

(d) Department of Energy (October 1, 1977 – present)

(3) Designations of DOE facilities or changes in DOE facility time frames are the responsibility of DOL. Further information regarding how DOL assesses claims for DOE facility status is discussed later in this chapter.

d. Remediation Employment. At many AWE facilities, there is a DOE period of remediation designated sometime after the years of active processing ended. In those instances when a facility is designated as a DOE facility for remediation only, in order to have covered employment at that location, the employee must have been employed by the contractor performing the remediation work. Such remediation workers are eligible for the full range of benefits under both Parts B and E of EEOICPA.

e. Facilities with multiple designations. Many facilities covered under the EEOICPA have multiple designations. There can exist any combination of AWE, Beryllium Vendor and DOE facility designation at the same facility. For those instances in which an employee works at such a facility during periods separately designated for different facility types, the employee will have eligibility for every category for which he/she has verified employment.

f. RECA Section 5. This is a special category of employment that involves miners, millers and ore transporters at uranium mining facilities. For the purposes of this chapter, RECA Section 5 employees are not addressed. For information regarding handling these types of claims, please refer to Chapter 2-1100 of the EEOICPA Procedure Manual.

3. Comparing initial claimed employment to the covered facilities database. The first step the CE takes in assessing covered employment is determining which claimed employment on the EE-3 Employment History form corresponds with a known covered AWE, Be Vendor or DOE facility. The CE does this by comparing what is written on the EE-3 with the facilities identified on a web utility located at: http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm

When performing the comparison between the claimed employment and the facility database, the CE must be diligent in assessing the evidence. While in many instances, employment at a particular location or facility will be obvious, in other situations it may not. Evidence presented by a claimant must be scrutinized against the database to assist in determining the location where employment occurred. In some situations, the claimant may use various words, phrases or other descriptors to identify a work location. Moreover, the CE must be mindful that often the name of a facility is different from the employer name provided by the claimant. Given these realities, the CE must cross reference the data provided by the claimant with the information in the facility database. This can involve searching by facility name, state or location, or key word. The “Find this Keyword” search feature is particularly helpful as it is the broadest possible way to look for potential covered employment based on claimant statements.

a. Certain employers should be screened out of the review process if it is clearly discernable that there is no affiliation to the atomic weapons industry. For example, employment as a clerk at a shoe store or cashier at a department store would not require action on the part of the CE to further consider as part of the review for potentially covered employment.

4. Matching claimed employment. The outcome of the initial employment facility screening will result in either part or all of the claimed employment having possibly occurred at a covered facility, or none of the claimed employment being linked to a facility. In any instance where all claimed periods of employment are linked to a location identified on the facility database, the CE is to proceed to employment verification as discussed later in this chapter. Alternatively, if the CE is only able to match a portion of the claimed employment to a facility listed in the facility database, or there is no match found, action must be taken to communicate the findings to the claimant. The CE is to contact the claimant to notify him or her as to which employment can form the basis of a claim and which does not appear linked to a covered facility. The claimant is to be afforded the opportunity to provide clarifying evidence. The process for this action is further discussed in paragraphs 17 and 18 of this chapter. It should be noted that this development may occur concurrently with other actions being taken in conjunction with the claim such as requests for additional medical or factual evidence.

When there is sufficient evidence to conclude that employment may have occurred at a covered facility, the CE may then proceed with the verification of employment as described later in this chapter. If the claimant does not respond to the inquiry or does not provide any type of clarifying evidence, the CE may proceed with adjudication of the claim based on the evidence of record. If there is no match between any claimed employment and a covered facility, the CE may proceed to deny the claim. In any instance where claimed employment is not verified, it must be described in any recommended decision.

5. Resource Center Actions. As outlined in Chapter 2-0200, resource center staff take initial employment verification steps for those cases originating at a resource center. This includes matching claimed employment to covered employment and initiating action outlined in paragraphs 6 through 12, below, as appropriate.

6. Verification of Employment. Once matches are established between claimed employment and a covered facility, the next step is employment verification. Employment verification is the process by which the CE establishes the factual accuracy of the claimed employment history. Evidence must be collected that establishes that:

a. The employer qualifies for consideration under the law as an AWE, Be Vendor, DOE, or DOE contractor or subcontractor.

b. The employee worked for claimed employer.

c. The employee performed duties at that covered AWE, Be Vendor or DOE facility.

The process of employment verification is recognized as a difficult and challenging hurdle in many cases. Because the atomic weapons program dates back to the early 1940s, the large number of public and private organizations involved, the high level of security involved, and the shear scope of the industrial process, locating pertinent individual employment records can be difficult. Moreover, it is also a reality that records are missing, degraded, lost or destroyed. This imperfect situation presents particular difficulties to the CE when attempting to establish the factual accuracy of claimed employment.

As the statute allows latitude in the assessment of evidence, it is not necessary for the CE to collect evidence that establishes that the claimed employment is proven beyond a reasonable doubt, but merely that a reasoned basis exists to conclude that the employment occurred as alleged. This ensures that the claimant receives favorable treatment during the employment verification process. Once the CE has conducted an examination of the available factual evidence in support of the claimed employment, he or she must decide whether a sufficient basis exists to verify that each of the three elements of covered employment are satisfied.

a. SEC employment. In matching claimed employment to covered employment, the CE is to be mindful that there are numerous classes in the Special Exposure Cohort (SEC), described in Chapter 2-0600. It is important that the CE always consult the most current list of SEC classes so that claims fitting into the class can be promptly adjudicated, without overdevelopment of covered employment.

7. Employment Pathways Overview Document(EPOD). The EPOD is a document that has been created to assist the resource center staff and CEs in identifying the appropriate pathway(s) to be taken as part of the employment verification process. This document lists every facility published in the Federal Register that is covered under the Act (except RECA facilities) and provides an outline of the identified methods for verifying claimed employment at each location. EPOD is initially available on the shared drive in the Employment Verification Folder within the Policies and Procedures Folder.

The pathways listed in the EPOD are not intended to provide an exhaustive list of means to verifying employment at a facility, but rather represent what constitutes best practices for verifying employment most efficiently given the programmatic experience gained since passage of the Act in 2000. The CE should locate the facility(ies) identified on the EE-3 in EPOD and ascertain the programmatic implications based upon the claimed employment.

Specifically, EPOD identifies which methods, or combinations thereof, described below are appropriate to pursue to verify covered employment in the most expeditious manner possible. The recommended sequence for utilizing resources follows the numbered items 8 through 13 in this chapter.

EPOD replaces lists 1, 2, 3 and 4 from previous guidance. It also replaces the “CE Employment Verification Referral Sheet.” If EPOD is silent on verification at a facility, the CE is to utilize Social Security Records (Paragraph 11, below) and “other employment evidence” (Paragraph 13, below).

The facilities in EPOD are listed alphabetically by state. On the first page of EPOD there is a list of states and, for those states with a large number of facilities, there are additionally letters after the state name. These letters provide a rough index of the facilities in that state. The state names and letters allow the user to navigate through the document. For example, to navigate to South Carolina the user places the cursor on South Carolina and presses “Cntrl + right click” at the same time and the utility will jump to South Carolina. Alternatively, if a user wants to view the S-50 plant in Tennessee, the most expeditious method would be to move the curser over the letter S after Tennessee and then press “Cntrl + right click” at the same time and the utility will jump to S-50.

For many claims, DOE can provide employment information for employees covered under the Act. Since this is not always the case, it is necessary to include in the case file in every instance in which there is no appropriate referral to DOE, a letter from DOE so stating. (Exhibit 1) Therefore, for every facility in EPOD in which there is no referring DOE contact information, the CE is to place a copy of the DOE letter in the file.

8. Using the ORISE database. For every EEOICPA-covered facility for which there is some employment data in ORISE, EPOD will indicate “ORISE – yes.” When this occurs, resource center staff and/or the CE conduct an ORISE search in ECMS as outlined below. If there is no mention of ORISE in EPOD for the facility, the resource center staff or CE proceeds to the next recommended method for verifying employment noted in the facility description in EPOD or in this chapter.

a. Resource center staff and/or the CE logs into ECMS as described in Chapter 2-2000, and chooses the “Inquiry” tab and selects “Search ORISE data.” A screen appears which provides fields for the first name, last name, and social security number of the employee. To conduct a search, the CE must enter, at a minimum, a partial last name, or social security number for the employee.

b. Once resource center staff and/or the CE enters the employee’s name and/or social security number, the system searches the database and provides the results at the bottom of the page under ORISE Search Results. If the database finds a match, the name and social security number appears. The resource center staff and/or CE select the result to review the employment data.

c. ORISE categorizes information in two rows of data. The first row categorizes the information by Facility and lists all the facilities or employers(for which data exists in ORISE) where the employee worked. The second row categorizes information in columns by Facility, Hire/Terminate Date, Dept. Code, Job Title, and Badge Number. ORISE was not created for the purpose of adjudicating claims, so information therein may be incomplete. In some cases it provides the name of the employer with a notation in the “HT” column, which provides “H” for hire and “T” for termination, with the numbers in the adjacent columns representing the corresponding dates for hire and termination.

The translations for the codes in the “pay” column are as follows:

H = Hourly

W = Weekly

M = Monthly

O = Operations (hourly)

S = Salaried

C = Construction

d. Because ORISE was not created for the purpose of adjudicating claims, resource center staff and/or the CE must consider the context of the information. For example, there may be data in ORISE confirming that an employee worked at a facility in 1949, but the resource center staff and/or CE must ensure that the covered time period for this facility includes 1949. Additionally, for many employees, the information in ORISE is incomplete. For example, for some employees the database may show the employee’s name and facility, but does not include specific hire and termination dates. If this is the case, the CE develops hire and termination dates using alternate methods described in paragraphs 9 through 13 in this chapter.

e. If the information from the ORISE database is used to verify any portion of employment, a copy of the ORISE employment results is printed and placed in the case file along with the memorandum from DOE stating that the data contained in the ORISE database is reliable(Exhibit 2). These documents may be used as affirmation of employment and are placed in the case file.

f. The absence of data from ORISE may not be used as the basis for stating that an employee did NOT work at a given facility either for the entire time period claimed or for portions of claimed employment.

g. There are some employers and/or facilities in ORISE that are not covered under the EEOICPA. Resource center staff and/or the CE need to carefully review the ORISE results for any non-covered employers. For example, the Puget Sound Shipyard for which ORISE ascribed the acronym PSSY is contained in ORISE, but is not covered under the EEOICPA. In the event that ORISE “confirms” such non-covered employment, it does not render such employment as covered. If an employer is not covered, no degree of verification that a person worked there will serve to extend EEOICPA coverage to that facility. All decisions on adding facilities are made by the National Office through the process described in paragraphs 17 and 18 of this chapter.

9. Contacting DOE. When claimed employment can not be verified in ORISE, the resource center staff/CE use the Form EE-5, found in Exhibit 2 (Forms) of Chapter 0-0500 of this Procedure Manual to obtain employment information. To determine whether the claimed employment is such that an EE-5 referral to DOE is appropriate, resource center staff and/or the CE look up the name of the facility(ies) and/or employers in EPOD. If there is a notation in EPOD signaling “EE-5 Referral to (contact information)” next to the facility, resource center staff and/or the CE proceed with the EE-5 procedures specified in this paragraph. If the employee was employed at multiple work sites for which different DOE operations offices are responsible, resource center staff and/or the CE send separate employment verification packets to each unique DOE operations office that is appropriate given what is claimed on the EE-3.

a. EE-5. The resource center staff and/or the CE complete the top portion of the EE-5 by providing the employee name, SSN, claimed employer, and named claimed facility. Resource center staff and/or the CE also write a cover letter to the appropriate DOE operations office or offices, make a copy of the EE-1 or EE-2, as appropriate, and a copy of the EE-3 to be included in the package with the EE-5. The completed package is then submitted to every appropriate DOE contact listed in EPOD for each facility requiring such a referral. It may be necessary to submit separate employment verification packets to each responsible DOE operations office.

b. Subcontractor employment indicated. Resource center staff and/or the CE review the EE-3 and make a preliminary determination of whether the employee is claiming DOE subcontractor employment. If so, resource center staff and/or the CE note this in the cover letter to DOE and request any information the DOE might have to help substantiate that the company was hired by the DOE or a DOE contractor to provide a service on-site during the time period when the employment is claimed. Questions regarding subcontractor employment are referred to the same operations’ offices as the EE-5 package, and not to DOE Germantown.

c. Upon receipt of an EE-5 from DOE, the CE reviews it for completeness. DOE is responsible for selecting one of three options provided on the form and attaching any relevant information. In addition, the DOE representative completing the form must certify its accuracy. The CE returns any form that does not meet these requirements to DOE for correction. The three options available to DOE and the appropriate procedural responses are as follows:

(1) For any of the claimed employment in which DOE selects “Option 1 – Verified Employment,” the CE accepts this time period as verified and no further action needs to be taken to establish this fact.

(2) If DOE selects “Option 2 – No verification is possible, but other pertinent evidence exists,” this indicates that DOE has some information on the employee, generally suggesting that the individual was on site or somehow associated with the facility, but the information is insufficient for the DOE to provide verification. If Option 2 is selected, the CE develops the case further for employment as outlined in this chapter.

(3) If DOE selects “Option 3 – No evidence exists in regard to the claimed employment,” it indicates that DOE has no evidence at all regarding the claimed employment. If Option 3 is selected, the CE develops the case further for employment as outlined in this chapter.

d. Timeframes. If the CE does not receive a completed form from DOE within 30 days of the initial submission, the CE prepares a second request for the completed EE-5. If DOE is ultimately unable to verify employment, the CE is to utilize other procedures as outlined in this chapter.

e. No Response from DOE. If the CE does not receive a response from DOE within 60 days from the initial request, additional development is necessary.

(1) Contact DOE by telephone. If no response is received, the CE contacts the appropriate Operations Office by telephone. The CE asks the contact person identified in EPOD whether a response to employment verification is forthcoming. If DOE responds via telephone that they have no records to verify employment, the CE documents this to the case file with a memo outlining DOE’s response. This serves as the “EE-5” for purposes of a DOE response.

(2) Contact the claimant. After 60 days with either no response or a response that no records are available from DOE, the CE contacts the claimant for additional employment information.

f. Document Acquisition Request (DAR) Processes. For cases involving DOE contractor employees, the CE or resource center makes a request to DOE for records useful for developing information regarding toxic exposures. Although DAR records are predominately used in the adjudication of the toxic exposure component of Part E cases, DAR records can also contribute to the evidence of covered employment, especially in cases involving DOE subcontractor employment, which is further described in paragraph 14 of this chapter. DAR records can include site medical records, job descriptions, radiological records, incident or accident reports and others. Generally, a request for DAR records is only made of DOE once employment is confirmed. However, some DOE operations offices have stated that they prefer to receive the DAR request at the same time as they receive the EE-5. If resource center or district office staff are aware of such a situation, they include the request for DAR records in the EE-5 package. The point of contact at DOE for DAR records is also included in EPOD. For more details on the DAR process, refer to Chapter 2-0700 of this manual.

g. Dosimetry Records. It is general program policy for NIOSH to obtain dosimetry records from DOE as part of the dose reconstruction process. The dosimetry records become associated with the file when the district office receives NIOSH’s dose reconstruction report. Nevertheless, in instances in which dose records may be useful for confirming that an individual was on site or was monitored for radiation exposure the CE may request such records from DOE as part of employment development.

10. Contacting Corporate Verifiers. Many of the facilities designated under EEOICPA are operated by private companies and neither DOE nor any of its predecessors have possession of the employment or personnel records. However, many of these companies are still in business, or have been bought by other companies which have maintained records of past employees. Many of these companies have agreed to provide employment verification for purposes of adjudicating claims under EEOICPA. These companies are referred to as corporate verifiers. For each facility that has been identified as having a corporate verifier, EPOD provides the name and contact information for the corporate verifier. The CE is to follow the instructions listed in EPOD to obtain such employment information. General procedures for handling corporate verifiers include:

a. It is not necessary for the CE to submit a copy of documentation from the case file to the corporate verifier. Instead, a cover letter providing the details of the request is to be submitted. In most cases, the cover letter includes the employee’s name, SSN, date of birth, employer name and the dates of claimed employment.

b. Once the CE has received a response from the corporate verifier, the CE reviews it to determine if it is sufficient to verify the claimed period of employment. If the corporate verifier affirms the entire period of employment being claimed, the CE accepts the period as factual. The CE must obtain the verification from corporate verifiers in writing. While an employment verification can be initiated through a phone call, there must be documentation from the verifier in the case file to substantiate a finding of covered employment. If the corporate verifier is unable to substantiate the claimed period of employment or can substantiate a portion of it, the CE requests additional information. The CE can proceed with a request to the Social Security Administration(SSA) for information as described in paragraph 11 of this chapter, and should also ask the claimant for additional information, as outlined in paragraph 13 of this chapter, as appropriate.

c. If verification is for a beryllium sensitivity or chronic beryllium disease (CBD) case, the CE need not verify all employment, only enough employment sufficient to substantiate the exposure at any time during a covered time period. For additional information regarding development of a beryllium claim, refer to Chapter 2-1000.

d. Corporate verifiers sometimes change. If a CE learns of a change in contact information or locates new contact information, this information should be sent to the National Office Employment Contact in the Policy Branch.

11. Verifying Employment through the Social Security Administration (SSA). Absent confirmation of employment through ORISE, DOE or a corporate verifier, the CE requests additional information from SSA. Also, for those facilities for which EPOD does not provide any suggested employment verification pathway, the resource center and/or CE requests records from SSA by following the procedures outlined below.

a. Obtain a release from the claimant. Once the resource center and/or CE determine that SSA information is required to verify employment, the CE prepares a letter to the claimant for his or her release of SSA information. The claimant is advised that additional employment verification is necessary. A Form SSA-581, “Authorization to Obtain Earnings Data from SSA,” should be enclosed (Exhibit 3). The following information is required on the SSA-581:

(1) For Employee Claims: The employee, the resource center staff or CE complete the following sections of the SSA-581: name; social security number; date of birth of employee; and other name(s) used. The employee or his or her authorized representative must also fill in his or her address/daytime telephone number and sign and date the form.

(2) For Survivor Claims: The survivor, resource center staff or CE complete the following sections of the SSA-581 form: name of social security number holder (employee); employee’s social security number; date of employee’s birth; date of employee’s death; and other name(s) used. The survivor writes in his or her address/daytime telephone number; indicates the appropriate box and shows relationship; signs and dates the form and prints his or her name in the requested space.

The resource center staff or CE explains to the survivor that he or she must provide proof of the employee’s death and his or her relationship to the employee. Proof of death includes: a copy of the death certificate, mortuary or interment record, or court-issued document. Proof of relationship includes: marriage certificate, birth certificate, adoption papers, or other court-issued document(s). SSA requires that these documents be submitted in order to process requests from survivors.

b. Timeframes on the SSA-581. The resource center staff or CE complete the form with the years deemed necessary to verify employment and/or establish wage-loss on the “Periods Requested” line. The CE or resource center staff identify this time period by reviewing the EE-3 and all the related documentation in the file, as well as a review of ECMS.

In the box titled, “Requesting Organization’s Information,” the CE or resource center staff sign the section, “Signature of Organization Official,” and provides the district office toll free telephone and fax numbers.

The resource center staff or CE must ensure that the upper right hand corner of the form allocated for “Requesting Organization” indicates the correct district office where SSA’s response should be sent.

c. The original (signed) SSA-581, and supporting documents (if the request is submitted by a survivor) must be submitted via Federal Express to the SSA, Wilkes Barre Data Operations Center (WBDOC), at the following address:

Social Security Administration

Wilkes Barre Data Operations Center

PO Box 1040

Wilkes Barre, PA 18767-1040

d. Once the claimant’s release has been obtained, the CE or resource center staff prepare a package for SSA referral. The package to SSA includes a cover letter requesting SSA to perform an earnings search on the named employee. Attached to the cover letter is Form SSA-581 that indicates the name of the employee, employee SSN, and the years of employment to be researched. Upon release of the package to the SSA, the CE or resource center staff will input code “SS” into ECMS.

e. Following submission of a Form SSA-581, the CE (or designee) is responsible for determining if SSA has received the earnings request (Form SSA-581) and for obtaining a status update on the employment verification request.

(1) If there has been no response from SSA within thirty (30) calendar days of the date of the submission to SSA, the CE calls to obtain a status update. The telephone call should be documented in the TMS section of ECMS and a printed copy placed in the case file. If SSA indicates that no SSA-581 form has been received, the CE must resubmit the form. Otherwise, the CE obtains the status and monitors for further follow-up.

(2) Inquiries to SSA are made by calling one of ten phone numbers (Modules) depending on the last four digits of the relevant SSN. (Exhibit 4)

(3) In response to the SSA-581, SSA provides a statement of earnings, known as an SSA-L460. If the CE does not receive a completed SSA-L460 within thirty (30) days of the first inquiry call to SSA (the 60^th day), the CE follows-up with a call to determine the status of the request and proceeds as necessary. After 60 days, it is necessary to obtain a newly signed SSA-581 from the claimant and resubmit the form to SSA as outlined above.

f. Tracking SSA requests and costs. After the completed SSA-581 form is sent, and a copy is placed in the case file, a SSA Point of Contact (POC) designated by the District Director ensures that the form is logged into a tracking spreadsheet. Each district office is responsible for developing a system of logging and tracking each claim, but the spreadsheet should contain, at a minimum, the case number and the date sent to SSA.

g. Response from SSA. Depending on the response from the SSA and the circumstances of the employment, the CE does one of three things. The CE either accepts the period of employment as verified; develops for additional information, such as work location or the other elements needed for subcontractor employment, as appropriate; or denies the claimed period of employment. The CE documents receipt of the SSA response by entering code “SR” into ECMS.

12. CPWR. The Center for Construction Research and Training, formerly known as the Center to Protect Workers’ Rights (CPWR), and which continues to utilize the acronym CPWR, is a research, development, and training arm of the Building and Construction Trades Department (BCTD) of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO). DEEOIC has contracted with CPWR to research and provide employment information for construction/trade worker claims where DEEOIC has been unable to obtain reliable information elsewhere. It is especially useful for obtaining information on DOE subcontractors and on workers employed in the trades. Instructions for development of subcontractor employment are provided in paragraph 13 of this chapter. Any time subcontractor employment is suggested on the EE-3, the subcontractor worksheet described in paragraph 14 must be completed. Once that is completed, there are essentially two pathways by which information from CPWR can be obtained for the use of EEOICPA claims adjudication:

a. Web-accessible database. If the resources already covered in this chapter do not provide sufficient documentation for a finding of covered employment, the CE can utilize CPWR, if appropriate. With regard to locating information to substantiate the existence of a contract between DOE and a company, CPWR has created a web-accessible database which the CE can use in identifying and confirming the existence of contractor or subcontractor employers at certain covered facilities. Facilities for which CPWR has contractor and subcontractor information have been identified in EPOD as “CPWR.” If the CE determines that the claimed employment involves subcontractor employment at a facility in which EPOD indicates “CPWR has contractor/subcontractor information,” the CE first reviews the EE-5, the DAR request and any material received from DOE. If this information is insufficient for a finding of covered employment, the CE reviews the CPWR database for any information therein linking the claimed employer to the claimed DOE facility, by following these instructions:

(1) The CE goes to www.btcomp.org. A log-on screen appears. Each district office has been assigned one original user name and password.

(2) Upon access to the web site, a disclaimer notes the database is a general information resource tool. It is not intended to nor does it contain all of the documents that relate to DOE contractors and/or subcontractors. However, the DEEOIC considers the information available in the database to be accurate and correct. Once the CE accepts the disclaimer, the database opens into basic search mode. The database allows various ways to search for information: by subcontractor name, by site, or by scrolling down the subcontractor master list.

(3) To search by contractor/subcontractor name, the CE enters the name of the company identified in the evidence from the case record. The company name may be the current recognized employer name, an acronym for the employer, or a previous version of the name. The CE searches the database using various combinations of spellings or aliases for the employer name. This increases the likelihood of a positive outcome and reduces the number of false negative results. For example, if a CE enters the name “Bowles Construction Company” the database returns a negative result. However, if the CE enters “Bowles” or “Bowles Construction” the employer appears in the return.

(4) To search by site, i.e. covered facility, the CE clicks on the list box labeled “by site” on the left hand side of the screen and selects the facility for which he or she is seeking contractor or subcontractor information. This returns all employers known by CPWR linked to that facility. It may be necessary for the CE to scroll down to view all named employers. To view detail for a named employer, the CE merely needs to access the “view” link under the options category. In some instances, a contractor or subcontractor name might be linked to multiple covered facilities. In these instances, the detailed return for the employer is separated into sections by covered site.

(5) It is also possible for the CE to search the comprehensive listing (master list) of all contractor employers listed in the database which appears if no name or site search criteria are applied or if the option “show all” is selected. A unique document identification (Doc Id) has been assigned to each contractual finding. The Doc Id is used by CPWR as a means of tracking and is not accessible by the CE.

(6) After the CE has accessed the database and conducted appropriate research to locate a contractor/subcontractor, the CE documents the case file. In the case of a positive result, the CE prints a copy of the screen for the case file. The printout must show all the results of the database search including the employer name, site name, contractual relationship indicator, dates verified, type of work performed, description of evidence, document ID, and date of database update. Generally, this information must be printed based on a “landscape” print mode setting. The printout should also list the date of the database search, the date of the latest update of a facility and any of the pertinent facts. In the situation where a database search does not return any result, the CE completes a “Memorandum to the file” noting the lack of information in the database for the claimed contractor/subcontractor. The memorandum is dated and signed by the CE. Caution: The database contains records on employers linked to DOE, but for which no probative documentation has been located. Any employer found in the database that does not have the “contractual relationship” indicator checked cannot be used to confirm that the employer is a valid contractor or subcontractor and should not be printed out for the file.

(7) The purpose of the database is solely to show a relationship between a DOE facility and a contractor or subcontractor employer. A positive result may return varying levels of information about an employer linked to a facility. For example, a database return may merely list that a contractor or subcontractor was linked to a particular facility, but not when. In addition to the database results, additional development may be needed independent of the database to ensure that such evidentiary gaps are filled.

(8) If the contractor or subcontractor is not listed in the database, additional development is necessary. The CE is not to assume that a search of the database that does not return any results establishes that the claimed employer was not a contractor or subcontractor. The CE must use all other resources that may potentially establish a contractual relationship.

b. Referrals to CPWR. If information beyond that which is listed in the CPWR database is needed, CPWR can be asked to provide certain types of information to assist in these cases. The types of information CPWR can provide includes proof of a contractual relationship between DOE at a covered facility and an identified employer (contractor or subcontractor) during a specific time period, evidence that an employee worked for a specific employer during the claimed time period and, as appropriate proof that the employee worked on the premises of a DOE facility during a covered time period. CPWR is not permitted to offer an opinion as to the validity of the evidence presented to substantiate a claim. Weighing and evaluating the evidence is solely the responsibility of DEEOIC, with guidance provided in this chapter. Procedures for handling requests for information from CPWR are as follows:

(1) For any of the claimed contractor or subcontractor employment at a DOE facility for which CPWR has information, the CE is to determine whether the employee worked in an occupation for which CPWR has information. CPWR has information about the following:

• Asbestos Workers (can include those who worked with insulators and pipe coverings)

• Boilermakers (includes Riggers)

• Bricklayers (can also be called brick mason, mason, stone mason, tile layer, tile setter, terrazzo worker)

• Carpenters (can include latherers, millwrights, pile drivers, drywall hangers, framers and finishers)

• Electrical Workers (can include electricians, line men, power installers, wireman, telephone workers, instrument mechanic, telephone installer)

• Elevator Constructors

• Iron Workers (can include erectors, structural steel erectors, ornamental erectors, glaziers, welders, connectors and rodmen)

• Laborers (can include flaggers, miners/tunnel workers, shaft drillers at the Nevada Test Site & Amchitka, and machinists and janitors)

• Machinists

• Operating Engineers (includes heavy equipment operators such as operators of bulldozers, graders, cranes and front end loaders, also includes well drillers, mechanics and stationary engineers who operate boiler rooms, electrical generators and heating and cooling systems)

• Painters (can include glaziers, drywall finishers)

• Plasters and Cement Masons (can include masons, cement finishers, concrete pourer)

• Plumbers and Pipefitters (can include fitters, sprinkler fitters, gas welders, instrument mechanics and steamfitters)

• Roofers

• Security Guards

• Sheet Metal Workers (includes duct worker, shop worker)

• Teamsters

(2) If the employee worked at a facility for which CPWR has information and in a trade for which CPWR has employment information, the CE is to confer with the district office Point of Contact (POC) for CPWR referrals. The POC is selected by each district office to serve as the principal liaison between DEEOIC and CPWR. There is one POC per district office who is responsible for all communication between the district office and CPWR. Also, the POC is responsibility for certifying outgoing referrals and reviewing incoming responses.

(3) If the POC agrees that the claim requires a CPWR referral, the POC or CE prepares three forms. These forms are a Subcontractor Worksheet (guidance for use is in paragraph 14 of this chapter), a CP-1 Referral Sheet (Exhibit 5) and a CP-2 Employment Response Report (Exhibit 6). The subcontractor worksheet apprises CPWR of the established documentation on record relevant to establishing covered employment. The CP-1 provides general information concerning the employee’s case file. The CP-2 is a form CPWR uses to respond to employment data requests.

(4) The CE or POC complete the CP-1. Section 1 requires information concerning the case to be listed, such as employee name, claim type, file number and Social Security Number. In Section 2, the referring District Office is to be identified along with the number of attached CP-2 Employment Response Reports. Any special requests or other relevant information for CPWR is to be listed in the comment section.

(5) For each claimed employer at a facility where CPWR can provide assistance, the CE or POC prepare a separate CP-2 Employment Response Report. The CE or POC may prepare as many copies of the form as necessary. The CP-2 contains two sections. The CE or POC completes Section 1 and describes the employment to be researched by CPWR. It is important that the information specify both the periods of employment requiring verification and the type of evidence being requested, such as evidence of a contractual relationship, proof of employment with the claimed employer, or evidence of employment on the premises of the claimed facility. Section 2 of the CP-2 is reserved for CPWR to report any findings pertaining to the claimed employment.

(6) Upon completion of the DEEOIC portions of the CP-1 and CP-2, the POC reviews all the material. He or she ensures that the information contained on the referral forms is reported accurately and satisfies all of the requirements for submission to CPWR. Once the review is complete and the POC is satisfied that the forms are completed correctly, he or she signs and dates the CP-1. The CP-1 Referral Sheet is certified on the day the referral is mailed out of the district office.

(7) A copy of the completed package is kept for the case file. The original package, to include the CP-1, CP-2 and the subcontractor worksheet is express mailed to CPWR.

(8) On the same day that the referral package is mailed to CPWR, all claimants and/or the authorized representative in the case are to be notified of CPWR involvement. The CE or POC must prepare a letter for each claimant that describes CPWR’s involvement in the case (Exhibit 7) and send it to each of the claimants and/or authorized representative in the case.

(9) CPWR is able to accept a minimum of 2500 through a maximum of 6000 CP-2’s annually. Once the POC or backup person determines the number of cases to be sent to CPWR during a given week, he or she is to batch all the referrals and express mail (initial request should not be e-mailed) them weekly to:

Anna Chen (achen@zenithadmin.com)

Zenith Administrators

201 Queen Anne Avenue, North

Suite 100

Seattle, WA 98109

1-800-866-9663

(10) The POC or the backup person is the ultimate arbiter of all issues involving the CPWR referral process. He or she is not to certify for submission any referral package that does not meet the requirements for referral. Any incomplete or inaccurate referral package must be returned to the CE. The POC notifies the CE of any deficiency and the steps necessary to correct the problem. CPWR is permitted to contact claimants directly. However, any request for claimant contact must be submitted to the POC, who then provides the necessary contact information.

(11) The POC is responsible for tracking all CPWR referrals and responses. For each referral, the district office must track the following information:

(a) case number

(b) facility name(s)

(d) number and date of referral(s) to CPWR,

(e) number and date of response(s) received from CPWR,

(f) CE initiating request

(g) Target due date (40 days from the date of referral).

(h) Number of overdue referral (s) (41 or more dates from the date of referral).

By the tenth day of each month, the DO POC sends the National Office an email summarizing the total number of CPWR referrals and responses for the preceding month, the number of outstanding requests (>40 days), the number of referrals determined to be eligible, the number of referrals determined to be ineligible, and the total number of referrals to date. The number of referrals determined to be eligible is defined as the number of referrals that CPWR determined as valid requests. The number of referrals determined to be ineligible is defined as the number of referrals that CPWR determined as invalid requests, e.g. the name was incorrect, the social security number was incorrect, the subcontractor was not a part of their database, etc. Contractually, CPWR can process a limited number of claims during the contracted time period. The report assists the National Office in tracking the number of requests by each district office on a monthly basis.

(12) In instances in which CPWR needs additional CP-2’s subsequent to their preliminary research and requests such from the POC, the CE and POC must confer on the requests and determine if additional CP-2s are needed. If they agree with CPWR’s assessment, the POC forwards via email or fax the appropriate number of additional CP-2s to the aforementioned address. If they do not agree with CPWR’s assessment, the POC provides an explanation to CPWR.

(13) CPWR has 30 calendar days from receipt of a referral to conduct appropriate research into the claimed employment, complete each CP-2 based on the evidence gathered, and express mail the response to the appropriate POC. Responses are bundled according to case file number.

(14) District office mailroom staff date stamp incoming responses according to established procedures and forward them to the designated POC. The POC enters the receipt date in the tracking database and immediately forwards the CPWR response to the appropriate CE.

(15) When reviewing the CPWR response, the CE or POC is responsible for carefully assessing the relevance of any evidence or information submitted by CPWR. In instances where additional action is needed subsequent to a CPWR response, the CE must further develop the case. For example, if the evidence provided by CPWR confirmed that the employee was employed by a covered employer, yet failed to place the employee on the premises during a covered period, then additional development is necessary to place the employee on the premises. Additionally, if CPWR provided the names and addresses of individuals that may have known the employee, yet this information was not previously contained in the factual evidence, the CE requests an affidavit (as outlined in Paragraph 13, entitled, “Other Evidence,” of this Chapter) from individuals identified by CPWR.

13. Other Employment Evidence. Evidence of employment by DOE, a DOE contractor, beryllium vendor, or atomic weapons employer may be made by the submission of any trustworthy contemporaneous records that on their face, or in conjunction with other such records, establish that the employee was so employed, and the location and time period of such employment. No single document noted in this section is likely to provide all elements needed for a finding of covered employment, but rather each piece of evidence can contribute valuable elements needed to make a finding of covered employment.

Documentation from the following sources may be considered:

a. Records or documents created by any federal government agency (including verified information submitted for security clearance and dosimetry badging), any tribal government or any state, county, city or local government office, agency, department, board or other entity or other public agency or office.

b. Records or documents created as a byproduct of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to DOE.

c. DEEOIC internal resources. The DEEOIC district offices each have gained experience with the facilities covered under this program. As part of adjudicating claims, each office has accumulated documentation substantiating various subcontractor relationships. Once such a relationship has been established at a facility for a given time period, the CE can use this information in the adjudication of other cases in which the same subcontractor employment is claimed during the same time period.

d. Affidavits or other types of signed statements attesting to the accuracy of a claim. The CE requests that the claimant use the EE-4 Employment History Affidavit to collect statements from knowledgeable parties. Statements provided by way of an affidavit are considered in conjunction with other evidence submitted in support of a claim. Affidavits are considered particularly appropriate as a means of demonstrating that an employee worked at a particular location and are best used with other information, such as SSA records. Affidavits alone are usually insufficient to prove the existence of a contractual relationship between DOE and a company.

Additionally, the CE has the discretion to assign different probative weight to different affidavits. For example, the CE may find that an affidavit from a former CEO of an employer has significantly more probative value than that of one from a relative who may benefit from any award granted. The CE must use his or her own judgment to ascertain what weight to give to any given piece of evidence, including affidavits.

14. Subcontractor Employment. Subcontractor employment at beryllium vendors and DOE facilities is covered under the Act, provided that certain developmental elements are met.

a. Definitions.

(1) Contractor. An entity engaged in a contractual business arrangement with DOE to provide services, produce material or manage operations.

(2) Subcontractor. An entity engaged in a contracted business arrangement with a contractor to provide a service on-site.

(3) Service. In order for an individual working for a subcontractor to be determined to have performed a “service” at a covered facility, the individual must have performed work or labor for the benefit of another within the boundaries of the facility. Examples of workers providing such services include janitors, construction and maintenance workers. The delivery and loading or unloading of goods alone is not a service and is not covered for any occupation, including workers involved in the delivery and loading or unloading of goods for construction and/or maintenance activities.

(4) Contract. An agreement to perform a service in exchange for compensation, usually memorialized by a memorandum of understanding, a cooperative agreement, an actual written contract, or any form of written or implied agreement is considered a contract for the purpose of determining whether an entity is a “DOE contractor.”

b. Standard. Mere presence on the premises of a facility does not confer covered employment. There are three developmental components that must be met before a decision of covered subcontractor employment can be reached. These elements are:

(1) the claimed period of employment occurred during the covered time frame as alleged, and

(2) a contract to provide “covered services” existed between the claimed subcontractor and a contractor at the facility or the identified vendor (during the covered time frame),and

(3) the employment activities (work or labor) took place on the premises of the covered facility.

c. Subcontractor employment at beryllium vendor facilities. Under the Act, persons providing a service on the premises of beryllium vendors during covered time periods are entitled to the same benefits as employees of the beryllium vendor during those same covered time periods. For some beryllium vendors, the corporate verifier for the vendor at which the subcontractor performed work has records of subcontractor employees, and therefore in verifying beryllium vendor sub-contractor employment the CE first contacts the corporate verifier for any information they have on the individual and his or her subcontractor employer. In those situations in which an employee is alleging beryllium sub-contractor employment and the beryllium vendor is unable to confirm employment, the CE is to use SSA records, affidavits and other evidence as described in this chapter.

d. Subcontractor employment at DOE facilities. Because DOE generally did not keep records of employees of subcontractors, particular evidentiary challenges are involved in proving subcontractor employment. To prove each of the elements needed, it is generally necessary to gather and evaluate documentation from multiple sources, including DOE, SSA and CPWR. To assist the CE in making determinations on subcontractor employment and to ensure that all the developmental elements are met for any period that is ultimately accepted as covered employment, a Subcontractor Worksheet (Exhibit 8) has been created that the CE completes in all subcontractor situations, as described in this item. Once completed, this worksheet is kept in the case file as aid to understanding the basis used to make subcontractor employment determinations.

(1) The subcontractor worksheet has two parts, claimed and verified employment. The claimed section refers to the information provided by either the employee or survivor on Forms EE-1, EE-2 and EE-3, including claimed employment dates, facility(ies) and subcontractor (employer).

(2) The verified section refers to the documentation on record that supports the information reported on the Forms EE-1, EE-2 and EE-3. Verified contract/employment identifies the source that confirms the employer’s link to the DOE; verified earnings identifies documents which support that the employee was employed by a specific subcontractor and verified premises identifies documents used to support the employee’s presence at a covered facility during the covered time period.

(3) In completing the subcontractor worksheet, the CE will likely use an assortment of documentary evidence from different sources to make a finding of covered subcontractor employment. For example, SSA records may show that the employee worked for Sentell Brothers, thus establishing verified earnings. Documentation from CPWR may show that Sentell Brothers was a subcontractor during the period of verified earnings at K-25, X-20, Y-12 and Oak Ridge in general. DOE may also provide documentation showing that the employee had a clearance to work at K-25 doing construction or DOE provides dosimetry badging information specific to K-25. In this situation, the CE has sufficient documentation to make a determination that the employee worked as a K-25 subcontractor employee during the time period for which the earnings, the contractual information and the presence on the premises requirements are all met. For all instances in which the CE is required to evaluate potential subcontractor employment, the CE writes a memo to the file outlining the findings for each period, providing a narrative evaluation of the evidence for each of the developmental elements of the subcontractor standard and an explanation of why the standard was or was not met.

15. Researcher Employment at DOE Facilities. A DOE contractor employee is also defined as “An individual who is or was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months.” In order for an employee to meet the “researcher” provision under the Act, the following criteria must be met:

a. Research. There needs to be probative evidence in the file that the individual was actually performing research on the premises of the DOE facility. Visiting the site, obtaining medical tests on site or similar non-work related reasons that people may have for going on site at a DOE facility do not qualify under this provision. Evidence that can be used to document that an individual was performing research on site include published journal articles, affidavits or some other documentation affirming that the individual was engaged in research.

b. Living on-site not required. Although some DOE facilities provide dormitory-style accommodations which often house researchers, “in residence” can be satisfied by working “on the premises,” and the individual need not have been living on the premises of the DOE facility.

c. Research can be unpaid. There is no requirement that the researcher is/was paid for the work.

16. Employees of Federal or State governments other than DOE and its predecessors. Employees of federal and state governments, (other than direct employees of DOE, ERDA, the AEC or MED) can be DOE contractor employees, as outlined in this paragraph.

a. Standard. A civilian employee of a state or federal government agency can be considered a “DOE contractor employee” if

(1) the government agency employing the individual is found to have entered into a contract with DOE for the accomplishment of one or more services on the premises of that DOE facility that such government agency was not statutorily obligated to perform, and

(2) DOE compensated the agency for that service.

b. Proof of contract. The district office contacts the federal or state agency directly in an effort to obtain the desired information. The District Director designates an individual in the district office to be responsible for coordinating and contacting federal and state agencies. This approach facilitates better communications with the agencies, especially for agencies with numerous requests. The point of contact is to provide copies of contracts and contacts to the National Office for development of a database. The CE should not pressure a state or federal agency to produce employment or contractual records.

c. If the evidence is unclear as to whether employment by a state or federal agency can be determined to be DOE contractor employment using the guidance in this paragraph, the CE obtains clarification from the claimant. The CE reviews any documentation submitted by the claimant and undertakes any additional development necessary to clarify the individual’s employment status.

Upon finding that the employee does not meet the definition of a “DOE contractor employee” who worked for a state or federal agency, and this is the sole employment listed on the form EE-3, the CE denies the claim. The CE issues a recommended decision denying the claim on the basis that the employment by the state or federal agency does not qualify the claimant as a “DOE contractor employee” as defined in EEOICPA.

d. Uniformed members of the Military. A claimant cannot obtain EEOICPA benefits based upon service in the military. If the claimant provides information or identifies himself/herself as military personnel, the CE sends a letter to the claimant stating that uniformed military personnel are ineligible for benefits under the EEOICPA. Only civilian employees who performed services on the premises of DOE facilities via contracts are considered DOE contractor employees.

17. Evaluating Evidence to Verify Employment. Once all evidence from appropriate sources has been received, the CE determines if the evidence is sufficient to verify the three components of covered employment listed in paragraph 6 of this chapter. The CE evaluates all evidence carefully in making this determination and uses discretion regarding documentation that reasonably establishes the presence of the employee at a particular facility during certain periods of time. Additionally, with regard to subcontractor employment, the evidence must reasonably satisfy all the components necessary to establish covered employment, as discussed in paragraph 14 of this chapter.

In weighing the evidence submitted in support of covered employment, the CE considers the totality of the evidence and draws reasonable conclusions.

18. Developing non-covered employment. As mentioned in paragraph 4, there will be instances in which the CE is only able to match a portion of the claimed employment to a facility and/or employer listed in the facility database, or there is no match found. In these instances the CE communicates this to the claimant. The CE prepares a letter to the claimant explaining which employment is covered under the Act and which is not, including any pertinent dates. A description of what constitutes an AWE, BE Vendor or DOE (as explained in paragraph 2) should be included in the letter. In the event that the claimant believes some of this non-covered employment should be covered, the CE requests that the claimant supply any pertinent evidence substantiating that the employment should be covered during specific years. Namely, the CE asks the claimant to provide evidence demonstrating that the place of work met the definition of an AWE, BE Vendor or DOE facility during the years the employee worked there. For example, the claimant can be asked to submit evidence such as contractual documents, business reports, internal memos, purchase orders, news articles, affidavits, etc. A period of 30 days is granted to the claimant to submit evidence in support of extending covered employment to additional facilities/employers and/or years.

After appropriate development, the CE decides whether any evidence submitted warrants a referral to the National Office. If the claimant has submitted pertinent evidence in regard to adding a facility/employer and/or years of coverage, the CE prepares a brief memo to the file explaining the circumstances of the situation and requests a review of the case file by the National Office which asks the National Office to make a determination regarding the new evidence of an additional covered facility/employer or years.

19. Additions or modifications to facility status. While EEOICPA defines what constitutes an AWE, Be Vendor or DOE facility, updates are periodically made to facility designations as new information becomes available. In instances when a claimant submits information in response to the request outlined in paragraph 18, the National Office takes a number of steps outlined in this paragraph to make a determination regarding whether the facility status should be modified. Depending on the facility type, authority rests with either the DOL or DOE to make modifications. Facility modifications or additions are dependent on the collection of probative evidence satisfying the legal definition of the facility.

a. Atomic Weapons Employer. New designations are the responsibility of DOE. Accordingly, requests for new AWE designations are referred to DOE.

(1) Time frame changes relating to specific years of processing at an AWE are the responsibility of DOL. Evidence must be presented clearly demonstrating that the AWE processed or produced material that emitted radiation and was used in the production of an atomic weapon.

b. Beryllium Vendor. The statutory deadline for adding additional beryllium vendors was December 31, 2002 and therefore no additional beryllium vendors can be designated under the Act.

(1) Time frame changes relating to Be Vendors are the responsibility of DOL. Evidence must be presented clearly demonstrating that the Be Vendor had a contractual agreement involving beryllium with DOE, or its predecessors, and that the company is performing/or did perform those beryllium-related contractual tasks in the years to be added to coverage.

c. Department of Energy facility (DOE). Facility or time frame changes relating to DOE facility listings are the responsibility of DOL. Evidence must be presented clearly demonstrating that the facility meets the definition of a “Department of Energy facility” under the Act. Under the EEOICPA, a DOE facility means any building, structure, or premise, including the grounds upon which such building, structure, or premise is located in which operations are, or have been, conducted by, or on behalf of, the DOE (except for buildings, structures, premises, grounds, or operations covered by Executive Order 12344, dated February 1, 1982, pertaining to the Naval Nuclear Propulsion Program); and with regard to which the DOE has or had either (A) a proprietary interest; or (B) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

Interpreting and applying the definition of a DOE facility is within the adjudicatory authority of DEEOIC. To determine whether a facility is a DOE facility under the Act, certain parameters must be met.

(1) Operations. To show that operations were performed on behalf of DOE, the evidence must demonstrate that DOE paid for operations at that location. These operations are not limited to those involving radiation or weapons. Everyday operations such as providing library services in a technical library are sufficient to meet this statutory requirement.

(2) Proprietary Interest. To show that DOE had a proprietary interest, evidence that DOE owned the building, structure or premises, such as a deed or affirmative statement from DOE acknowledging ownership. DOE ownership of intellectual property or equipment, regardless of size, does not fulfill the proprietary interest definition.

(3) Contracts. To show that DOE entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services, the best possible evidence is to produce the contract. Typically contracts with DOE or its predecessors identify the contract type on the first page, so in those cases in which contracts are located, it is generally not difficult to discern contract type. The contracts identified in this portion of the law are among the more common and significant contracts used throughout the DOE complex in the following ways:

(a) Management and Operation (M&O) contracts are those contracts DOE often had with major companies to manage and operate large DOE facilities, such as Union Carbide and Carbon at K-25 and Y-12.

(b) Management and Integration (M&I) contracts were also used by DOE to run major DOE sites, but an M&I contractor generally had numerous smaller site contractors for which the M&I’s job was to “integrate” the work of the smaller companies. The Idaho National Laboratory is an example of a DOE facility which has been run from time to time by M&I contract. Companies holding M&O and M&I contracts at DOE facilities are generally considered the “prime contractor” for that facility, though sometimes facilities will change from the M&O model to the M&I model.

(c) Contracts for environmental remediation services, construction, or maintenance services are also common throughout the DOE, but are generally smaller in size than the major M&O’s and M&I’s. Remediation contracts were also utilized by DOE to clean up radiation at numerous AWE facilities. In these instances the locations are designated as DOE facilities for the period of remediation under DOE contract and the remediation workers are covered.

(d) Some common types of contracts issued by DOE that do not meet the statutory definition include research & development, output, and procurement.

20. Special Circumstances. There are some special circumstances regarding eligibility for benefits pertinent to the Naval Nuclear Propulsion Program and EEOICPA claims from citizens of the Republic of the Marshall Islands, as outlined below.

a. Naval Nuclear Propulsion. As noted in the section above, the statutory definition of a DOE facility specifically excludes, “buildings, structures, premises, grounds, or operations covered by Executive Order No. 12344, dated February 1, 1982 (42 U.S. C. 7158 note) pertaining to the Naval Nuclear Propulsion Program.” As a consequence of this exclusion, DEEOIC is unable to provide covered employment to those AEC employees and AEC contractors who worked at locations devoted to Naval Nuclear Propulsion operations.

b. Marshall Islands. DEEOIC has received claims for compensation under EEOICPA from citizens and nationals of the Republic of the Marshall Islands (RMI). The Marshallese base their claims on employment related exposure arising from the United States’ nuclear weapons testing program conducted in the RMI. The DOE facility known as the Pacific Proving Ground was a weapons test site in the South Pacific from 1946 to 1962.

In 1986, the United States and the Marshall Islands terminated their trust territory relationship through enactment of the Compact of Free Association (Compact). The Compact is a comprehensive document encompassing a variety of agreements, including a number of socio-economic, agricultural, and monetary compensation programs. Under the Compact, the RMI became an independent sovereign nation and U.S. laws ceased to apply unless otherwise specified.

For the purposes of the administration of the EEOICPA, this Compact has been interpreted as precluding coverage for RMI citizens and nationals. If the CE determines that a claim for benefits is from a citizen or nationals of the Marshall Islands, the CE explains, in the conclusions of law portion of the recommended decision, that there is no provision under EEOICPA for coverage of claims based upon employment in the RMI by citizens or nationals of the RMI. The CE inserts the following wording in the conclusions of law as a summary of the DEEOIC policy:

Since interpreting EEOICPA to apply to claims by Republic of the Marshall Islands (RMI) citizens or Nationals based upon employment in the RMI would constitute an invasion of the sovereignty of the RMI, the presumption against applying a statute extraterritorially is invoked. Furthermore, there appears to be no contrary intent by Congress to rebut the presumption and, to the extent that Congress has expressed any intent, its approval of the Compact of Free Association between the United States and the RMI suggests that it did not intend for EEOICPA to apply extraterritorially in this situation.

Exhibit 1: DOE letter regarding facilities for which DOE has no employment records

Exhibit 2: DOE memorandum serving as DOE’s Form EE-5 for employment verification by ORISE

Exhibit 3: SSA-581(Authorization to Obtain Earnings Data from the Social Security Administration)

Exhibit 4: Telephone Contact Information for inquiries to SSA

Exhibit 5: CP-1 Referral Sheet to CPWR

Exhibit 6: CP-2 Employment Response Report from CPWR

Exhibit 7: Letter to claimant regarding CPWR referral

Exhibit 8: DEEOIC Subcontractor Worksheet