U.S. Department of Labor Office of Worker's Compensation Programs
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Division of Energy Employees Occupational
llIness Compensation
Washington, D.C. 20210

EEOICPA Program Memorandum
Date: February 20, 2015

To: All staff

From: Policy Branch

Re: __ Exposure levels at DOE facilities beginning in 1995

Using the body of available industrial knowledge concerning the work processes
affiliated with the production, manufacture and testing of atomic weapons, the Division
of Energy Employees Occupational Illness Compensation (DEEOIC) is responsible for
making informed judgments with regard to the biological or chemical materials to
which a covered Part E employee had credible exposure by way of physical contact or
inhalation. For the purpose of program administration, the term “credible” means that
a source of evidence is sufficiently reliable or compelling so as to offer probative
information regarding the nature, extent and duration of an employee's exposure to a
toxic substance.

DEEOIC uses information from a variety of sources to make findings of exposure,
including evidence presented in the case file of an employee seeking benefits, data
outputs from the Site Exposure Matrices, opinions of Industrial Hygienists or other
occupational health experts, and data supplied by Department of Energy (DOE) or its
contractors regarding the operational use of materials at covered DOE facilities.

The publication of EEOICPA Circular No. 15-06 (December 17, 2014) is based on DOE’s
issuance of Order 440.1, “Worker Protection Management for DOE Federal and
Contractor Employees,” in 1995. DOE and its predecessors, including the Energy
Research and Development Administration (ERDA), the Atomic Energy Commission
(AEC) and even the Manhattan Engineer District (MED), undertook a progression of
efforts to protect the health and safety of workers in the weapons complex over time. A
brief examination of this history starts on August 20, 1962 with the issuance of AEC
Order 0550, “Standards for Health, Safety and Fire Protection,” which states:

Basic standards for the protection of health from exposure to toxic
materials are established and published annually by the American
Conference of Governmental Industrial Hygienists. These standards are
specified in the recommendations for threshold limit values for the control
of exposure of individuals to toxic material and are in the Hygiene Guide
Series.


By 1973, this section of the Order was expanded to specifically delineate prescribed
standards and recommended standards, and both sections contain references to
respiratory protection as well. Chapter 0506, “Occupational Safety and Health Program
for ERDA GOCO Contractor employees,” approved on January 5, 1977, states that
standards at ERDA government-owned, contractor-operated (GOCO) facilities were to
be “at least as effective as those promulgated under the Occupational Safety and Health
Act of 1970.” By this time the regulations were becoming longer, more detailed and
they contained the earliest references to compliance inspections. DOE 5480.1A, issued
August 13, 1981, devotes Chapter 10 to the Industrial Hygiene program, and states the
purpose as “This Chapter establishes the requirement and guidance for maintaining an
effective industrial hygiene program.” This Order was updated on September 23, 1986
by DOE 5480.1B, which adds further requirements.

DOE then issued Order 440.1 in 1995. The Order established a standardized
Occupational Safety and Health protocol for all DOE federal and contractor employees.
The intent of the Order was multifaceted but included several goals, including the
implementation of a written worker protection plan that provided for a place of
employment free from recognized hazards that caused or likely could cause death or
serious physical harm. The Order also established a series of guidelines that fostered
enhanced workplace safety practices, including more robust monitoring of potential
workplace chemical, physical, biological or ergonomic hazards. It also included
guidance for employees to stop work in any instance of employee exposure to imminent
danger situations or other serious hazards. DOE subsequently published updated
Orders (440.1A & 440.1B) to further enhance and strengthen the requirements for
protecting worker safety and health.

For the following reasons, DEEOIC chose to base EEOICPA Circular No. 15-06 on the
1995 Order 440.1 instead of the earlier Orders. First, DEEOIC recognizes that
implementation of industrial hygiene standards by DOE and its predecessors was, at
times, lacking. It also recognizes that with each more rigorous standard, there would
have been a time lag between issuance and implementation. However, a number of
things are apparent starting in the late 1980s that make the 1995 date the best one for the
Circular. It was at that time that DOE began a series of enforcement actions known as
“Tiger Teams.” These were teams from DOE headquarters who visited the DOE sites
performing health and safety audits. These audits were possibly the first health and
safety audits at DOE sites that were seen as having real consequences for non-
compliance.

In addition to the Tiger Teams, September 30, 1992 marked the end of underground
weapons testing and with it, the operational focus of DOE shifted from nuclear
weapons production to one of site closures and remediation. Large production facilities
like Rocky Flats, Fernald, Mound, and other sites ceased production activities in the late
1980s and into the 1990s. Also, DEEOIC programmatic experience with claims
adjudication demonstrates that the DOE industrial hygiene monitoring programs were


in place at some sites by the late 1980s, at many by the early 1990s and regularly after
1995. This demonstrates that the regulations noted above did ultimately have their
intended effect: competent industrial hygiene programs and protections in place at the
DOE facilities that remained after shutdown.

Therefore, it is the finding of the program that DOE implemented a significant and
rigorous employee Occupational Safety and Health program with the publication of
Order 440.1 after years of effort of working to improve in this area. Further, since DOE
published the Order with the goal of significantly mitigating employee exposure to
workplace hazards, including exposure to chemical or biological toxins, DEEOIC finds
that after 1995 any exposure to a toxic substance by an employee working at a covered
DOE facility occurred within existing regulatory standards and/or guidelines.

Accordingly, DEEOIC concludes that the official publication of Order 440.1, along with
its subsequent iterations, represents a reliable and compelling basis for establishing the
exposure guidance offered in EEOICPA Circular No. 15-06.