EEOICPA CIRCULAR NO. 10-02 February 24, 2010
SUBJECT: Linde Ceramics Plant Residual Radiation Period
The purpose of this Circular is to explain the coverage of certain employees at the Linde Ceramics Plant in Tonawanda, New York under Part B of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) who worked solely during the period defined by the National Institute for Occupational Safety and Health (NIOSH) as having the potential for significant residual radiation.
Circular No. 07-07 stated that Buildings 30, 31, 37 and 38 had been determined to meet the definition of a Department of Energy (DOE) facility for purposes of EEOICPA from 1942 through 1953. That determination has since been incorporated into the recent publication of all DOE facilities currently covered under EEOICPA in the Federal Register on June 23, 2009.
Circular No. 07-07 also stated that the remaining portion of the Linde Ceramics Plant, the Tonawanda Laboratory (Building 14), did not meet the statutory definition of a DOE facility. Thus, the basic EEOICPA coverage outlined in Circular No. 07-07 remains unchanged, including the fact that the Tonawanda Laboratory continues to be treated as an AWE facility.
Circular No. 07-07 suggested that employees who worked in Buildings 30, 31, 37 and 38 only during the period that NIOSH found had potential for significant residual radiation did not qualify for coverage as atomic weapons employees under Part B of EEOICPA because they did not work at an AWE facility. It has now been determined that this suggestion was incorrect because it failed to take into account that the 2004 amendments to EEOICPA added a second way for these workers to qualify as atomic weapons employees. Under this second definition, an atomic weapons employee is:
(B) An individual employed—
(i) at a facility with respect to which the National Institute for Occupational Safety and Health, in its report dated October 2003 and titled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities”, or any update to that report, found that there is a potential for significant residual contamination outside of the period in which weapons-related production occurred;
(ii) by an atomic weapons employer or subsequent owner or operators of a facility described in clause (i); and
(iii) during a period, as specified in such report or any update to such report, of potential for significant residual radioactive contamination at such facility.
Because employees who worked in Buildings 30, 31, 37 and 38 only during the residual contamination period:
(1) worked at a facility that NIOSH found had a potential for residual radioactive contamination;
(2) worked for an AWE (since the Linde Air Products Company retained its status as an AWE notwithstanding the change in the status of Buildings 30, 31, 37 and 38 to a DOE facility); and
(3) worked during the period designated by NIOSH as having potential for significant residual radioactive contamination;
all Linde Air Products Company employees who worked for that company in Buildings 30, 31, 37 or 38 solely during the residual radioactive contamination period meet the definition of an “atomic weapons employee” added by the 2004 amendments. Also under this second definition, all employees of subsequent owners or operators of the Linde Ceramics Plant, such as Praxair, who worked for that company only in Buildings 30, 31, 37 or 38 solely during the residual radioactive contamination period, are also atomic weapons employees.
Determining that a portion of the Linde Ceramics Plant was a DOE facility rather than an AWE facility has no effect on the SEC class designation pertaining to a class of Linde Ceramics Plant employees. This Circular also does not change any aspect of EEOICPA Bulletin No. 06-06, which outlines how to handle the Linde Ceramics Plant SEC class. Proceed to handle all Linde Ceramics Plant claims in accordance with this guidance.
Rachel P. Leiton
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 Section, Resource Center Managers