U.S. Department of Labor Office of Workers’ Compensation Programs Washington, DC 20210

August 24, 2022

Dr. Steven Markowitz

Chair

Advisory Board on Toxic Substances

 and Worker Health

Queens College, Remsen Hall 

65-30 Kissena Boulevard

Flushing, NY 11367 

Dear Dr. Markowitz:

Thank you for your letters dated June 30 and July 11, 2022, transmitting recommendations 

adopted by the Advisory Board on Toxic Substances and Worker Health (Advisory Board or

Board) during its meeting on June 29, 2022. On behalf of Secretary of Labor Martin J. Walsh, to 

whom you addressed your letters, the Office of Workers’ Compensation Programs (OWCP) 

responds to each recommendation herein.

The Board adopted the following recommendation regarding Borderline Beryllium Lymphocyte 

Proliferation Test (BeLPT).

The Board recommends that the Department of Labor [DOL] communicate to Congress the need 

for a technical amendment in the Energy Employees Occupational Illness Compensation 

Program Act (EEOICPA) that will recognize that covered individuals as defined in The Act and 

who have three borderline beryllium lymphocyte proliferation test results, have beryllium 

sensitivity.

DOL Response: Since June of 2022, OWCP has been discussing this topic with staff members 

of the U.S. Senate Committee on Health, Education, Labor, and Pension (HELP). The Senate 

HELP Committee has provided OWCP the same amendatory language suggested in your 

recommendation, and OWCP has advised them that it would not have difficulty implementing 

the recommended amendment to § 7384l(8)(A) of EEOICPA if it is enacted. DOL’s 

understanding is that no bill has been introduced yet. Should a bill be introduced, the 

Administration will take the Board’s recommendation into account in determining its position, if 

any, on the bill.

The Board adopted the following recommendation on Industrial Hygiene Report Language.

The Board recommends that the Energy Employees Occupational Illness Compensation Program 

advise its staff and industrial hygiene contractor that claim-related industrial hygiene reports 

and opinions restrict comparisons of claimants’ exposures to toxic substances at Department of 
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Energy facilities to regulatory workplace exposure standards only to cases where sufficient 

industrial hygiene data exist that are relevant to the claim and that support the comparisons. 

Comparisons of exposures to regulatory standards must describe the available industrial

hygiene data and the specific regulatory limit referenced, with preference for the most current 

standards. In the absence of specific industrial hygiene evidence, comparisons of claimants’ 

workplace exposures to regulatory standards lacks objective support and may be prejudicial to 

an appropriate resolution of the claim.

DOL Response: DOL agrees to modify how Industrial Hygienist (IH) staff characterize toxic 

substance exposure to eliminate reference to exposures that occurred within regulatory standards. 

For all cases referred to DOL IHs, they will assign a characterization of exposure that must align

to the levels that exist currently within program procedure. Toxic substance characterization will 

continue to be informed by the professional judgment of the IH including consideration of 

available employee-specific employment data. DOL will prepare a written policy directive 

relating to this change by the end of fiscal year 2022. 

On behalf of the Department, OWCP, the Division of Energy Employees Occupational Illness 

Compensation, and the communities we serve, I look forward to the continued efforts of the 

Advisory Board. 

Sincerely,

Christopher Godfrey by Nancy J Griswold (Deputy Director)

OWCP Director