UNITED STATES DEPARTMENT OF LABOR

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ADVISORY BOARD ON TOXIC SUBSTANCES AND WORKER HEALTH

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SUMMARY MINUTES

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JUNE 29, 2022

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The Advisory Board met via teleconference, Steven 

Markowitz, Chair, presiding.

MEMBERS

SCIENTIFIC COMMUNITY

AARON BOWMAN

MARK CATLIN

KENNETH SILVER

MIKE VAN DYKE

MEDICAL COMMUNITY

GEORGE FRIEDMAN-JIMENEZ

STEVEN MARKOWITZ, Chair

MAREK MIKULSKI

CLAIMANT COMMUNITY

JIM KEY

DURONDA POPE

CALIN TEBAY

DESIGNATED FEDERAL OFFICIAL

RYAN JANSEN
Welcome/Introductions:

Mr. Jansen called the meeting to order at 1:04 p.m. and 

introduced himself as the Board's new Designated Federal Officer 

(DFO). The meeting was conducted via teleconference as a 

precaution against the COVID-19 pandemic. Mr. Jansen reminded 

Board members that some materials provided to them in their 

capacity as Special Government Employees should not be shared or 

discussed publicly. Chair Steven Markowitz welcomed Advisory 

Board members, Department of Labor (DOL) staff, and members of 

the public. After a round of introductions, Chair Markowitz 

reviewed the meeting's agenda. 

Board Comments on EEOICP Quality Assurance Documents: 

A working group of the Board met previously to discuss two 

documents provided by the program: one related to contract 

medical physician performance and the other related to quality 

assurance within the program. The working group compiled a list 

of comments and questions for the program, which was then 

circulated to the full Board for review. The Board voted 

unanimously to transmit these comments and questions to the 

Department.

Recommendation on Borderline BeLPT Tests:

The Board discussed draft language for a recommendation on 

borderline beryllium lymphocyte proliferation (BeLPT) tests. In 

its rationale, the Board proposed adding language to expand the 

current definition of beryllium sensitivity in the Energy 

Employees Occupational Illness Compensation Program Act 

(EEOICPA) to include three borderline BeLPT tests as evidence of 

beryllium sensitivity. Chair Markowitz noted that only a 

relatively small percentage of people have repeated borderline 

tests without ever having an abnormal BeLPT. Aaron Bowman voiced 

his support for the recommendation. Chair Markowitz reminded the 

Board that the Board raised this same issue in 2017 with a very 

similar recommendation, which was rejected by the Department. 

George Friedman-Jimenez suggested that they include an up-todate reference from Newman and Maier, which recommends that two 

borderline tests be interpreted as a positive test. Chair 

Markowitz said that he would add the reference. The Board voted 

unanimously to approve the following language for the 

recommendation: 

"The Board recommends that the Department of Labor communicate 

to Congress the need for a technical amendment in the Energy 
Employees Occupational Illness Compensation Program Act that 

will recognize that covered individuals as defined in the Act 

and who have three borderline beryllium lymphocyte proliferation 

test results have beryllium sensitivity."

Industrial Hygiene Report Language re: Regulatory Standards:

When reviewing claims, Board members have noticed stereotypic 

language in many industrial hygienist (IH) reports related to 

regulatory standards. Numerous public commenters also raised 

this issue. Many IH reports continue to use language that frames

the interpretation of exposure levels around the post-1995 

period, even though this guidance was rescinded by the 

Department. Chair Markowitz summarized Board discussions on this 

topic at recent meetings, including discussion with Mr. Jeffrey 

Kotsch and Mr. John Vance from DOL at the last full Board 

meeting. He presented draft recommendation language and opened 

the floor for discussion.

Mike Van Dyke said that he supported the concept and suggested

that it would be helpful to include examples of language that is 

unacceptable. Ken Silver said that he was not comfortable with 

the idea of comparison to past regulatory standards. The only 

comparison that makes sense for the purposes of the IH and 

contract medical consultant (CMC) rendering a causation 

determination is comparison to the latest American Conference of 

Governmental Industrial Hygienists' Threshold Limit Values

(ACGIH TLVs). Chair Markowitz noted that, in their previous 

discussions, Mr. Kotsch said that the Department did use the 

most recent TLVs because those were most generous to the 

claimants. Dr. Silver said that they might want to include that 

fact in the rationale so that claims examiners understand that 

they are talking about the latest set of TLV standards that have 

evolved over time.

Chair Markowitz noted that ACGIH acknowledges that its standards 

are not absolutely protective. If the population of people 

exposed is large enough, a significant minority of people will 

still be affected by those exposures. Dr. Silver agreed and 

asked if it would be possible for the process to be expedited

for claimants exposed above the latest ACGIH standards. Chair 

Markowitz said that he did not know the answer, but outside of 

the regulatory standards language, there is plenty of material 

in the IH report that can be used in claims evaluation. Dr. 

Silver noted that the TLV benchmarks give claimants a target 

presumption to refute on appeal. 
Chair Markowitz said that the Board heard from Mr. Kotsch that

when exposure data are available from DOE or a DOE contractor, 

it is generally related to acute incidents. While these data can 

be important, many of the occupational diseases in the claims 

stem from chronic exposures. He asked whether that aspect of the 

IH data should be specified in the Board recommendation. Dr. Van 

Dyke said that if they wanted to focus on avoiding prejudicial 

blanket statements, they might not want to go down a rabbit hole

of exposure information. 

Dr. Friedman-Jimenez said that in many claims there is no 

evidence available about whether or not the exposures exceeded 

or did not exceed the regulatory standard; when this is the 

case, it should be stated clearly to avoid prejudice. Dr. Van 

Dyke suggested that when exposures are compared to regulatory 

standards, IH reports should specify the amount of available IH 

data and the specific regulatory limit referenced. Dr. FriedmanJimenez acknowledged that this creates more work for the IH, but 

noted that, compared to a more extensive process of auditing IH 

data, this process was fairly efficient. Chair Markowitz 

commented that the industrial hygienists are already supposed to 

track down existing IH data during the claims review process. 

Dr. Silver noted that because there are so few IH data available 

prior to the mid-1990s, limiting comparisons to regulatory 

standards to cases where sufficient relevant IH data exist means 

that those comparisons will not happen in many older claims, 

which is a good thing. Dr. Bowman suggested that they specify a 

preference for the most current regulatory standards when there 

is a comparison. Dr. Friedman-Jimenez recommended that they 

specify that the IH data need to be from the time when the 

claimant would have been exposed, rather than the most current 

IH data. Dr. Bowman said that that point seemed to be captured

in wording earlier on in the recommendation, and Dr. FriedmanJimenez agreed.

After further wordsmithing, the Board voted unanimously to 

approve the following draft Board recommendation:

"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 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. 

Comparisons of claimants' workplace exposures to regulatory 

standards, in the absence of specific industrial hygiene 

evidence, lack objective support and may be prejudicial to the 

appropriate resolution of the claim."

Follow-up on Asbestos Presumptions Re: Engineers:

Chair Markowitz summarized the Board's work on the current 

asbestos presumption issue: determining whether the list of job 

titles in the Procedure Manual (PM) that are presumed to have 

significant exposure to asbestos should be expanded to include 

certain types of engineers. The Board conducted research to 

determine what was known about the regularity and predictability 

of asbestos exposure for engineers in previous eras. Chair 

Markowitz and former Board member John Dement looked at the 

National Occupational Mortality Survey (NOMS) and searched for 

job titles showing excess mesothelioma as an indicator of

asbestos risk. They found a sizeable number of job titles which 

are included in the PM, Exhibit 15-4, as well as several types 

of engineers that are not included in the PM. A report from 

Paragon Technical Services (PTS) on asbestos presumptions notes 

that the Site Exposure Matrices (SEM) includes information about 

bystander exposure. It also states that the disease experience 

of the mechanical, chemical, and industrial safety engineers 

reflected in NOMS is not sufficiently similar to the engineers 

at the DOE complex to presume that DOE engineers also had 

asbestos exposure.

Chair Markowitz added that when he conducted his own search he 

found the SEM to be quite variable as to which sites listed 

asbestos as a potential exposure for engineers. For example,

Hanford did list asbestos, while Y-12, Savannah River, and

Portsmouth did not. Dr. Bowman said that he did not fully 

understand PTS' rationale, and part of the difficulty was that 

they did not fully explain how the differences in tasks related

to differences in potential exposure to asbestos. Chair 

Markowitz noted that the Board's term will end on July 15th and 

suggested that they add this topic to the list of issues for the 

next Board to look at. Dr. Van Dyke suggested examining denied 

mesothelioma claims to see if this issue was affecting claims

adjudication. Chair Markowitz added that it could be helpful to 

look at the experiences of these types of engineers in their 

asbestos disease claims. 
Board comments on Claims Review:

Chair Markowitz led a discussion on the Board's claims review to 

identify areas that should be looked at more closely. He 

reminded the Board that their charter instructed them to 

evaluate the consistency, quality, and objectivity of IH and CMC 

reports. Chair Markowitz said that he would like to know about 

the consistency of IHs' assessment of the level of exposure by 

job title. Dr. Van Dyke said that that might be difficult given 

the limitations on sorting claims by job title or exposure. He 

added that he would like to see improved guidance on frequency, 

intensity, and duration of exposure in IH evaluations, and that 

this might help to improve consistency. Chair Markowitz said 

that he would also be interested to know how frequently the 

industrial hygienists were correct in their judgments.

Dr. Silver said that, in the absence of hard IH monitoring data, 

claimants and IHs are hindered when other kinds of information 

in claim files are not incorporated into the SEM. Chair 

Markowitz said that it would be helpful to know how often IHs 

use the occupational health questionnaire information and 

affidavits. He would also be interested to find out how often 

CMCs are wrong in their opinions, and how often claims examiners 

fail to include important information on exposure or disease. 

Dr. Silver mentioned Case 7716, a mechanic at a uranium mill 

whose pneumoconiosis claim was paid for under RECA by the

Justice Department. When his claim was sent to DOL, the claims 

examiner determined that it did not qualify under Part E 

relative to pulmonary fibrosis and denied the claim in December

of 2020. Dr. Friedman-Jimenez said that the Board had addressed 

the issue of the lack of synonymy of pulmonary fibrosis and 

pneumoconiosis in the SEM. He read language from the current 

Procedure Manual concerning synonymous fibrotic lung conditions 

and said that Case 7716 most likely pre-dated the change in the 

PM.

Chair Markowitz asked Mr. Vance why claims examiners limit the 

number of targeted toxic substances to six when looking through 

exposures. Mr. Vance said that the suggested limit is seven, and 

that this is part of an administrative process to prioritize 

toxins that will produce a positive outcome in the case. Claims 

examiners can look at more than seven substances if there is a 

basis to do so. Dr. Friedman-Jimenez asked how effectively 

claimants who have reasonable evidence for causation but do not 

meet the criteria for presumed exposure or causation are 

referred to the CMC and IH for individual-level analyses. Mr. 

Vance said that the process is designed so that claims examiners 
try to fit claimants into presumptions. In the absence of an 

exposure or causation presumption, the claimant is advised that 

they will need evidence from a physician of their choosing or 

from a CMC to establish a causal relationship. 

Review of Public Comments:

Chair Markowitz noted that several written comments from the 

last Board meeting were relevant to the Board's charter. He 

proposed adding the question of how the Board should deal with 

public comments to the next Board's agenda. The Board has not 

developed a systematic way of following up on relevant comments, 

and Chair Markowitz asked whether there were opportunities to 

look at issues arising in the public comments that the Board is 

not currently following up on. He posited the idea of a standing 

working group to review public comments between meetings and 

bring them forward to the Board as issues for exploration. Dr. 

Friedman-Jimenez asked if any commenters had expressed 

satisfaction or dissatisfaction with the Board's current method

of receiving comments. Dr. Silver said that if the Board resumes 

in-person meetings at DOE sites, another strategy could be to 

construct agenda items based on comments received from the 

public at those particular sites. Duronda Pope stated that it is

important for the commenters to feel heard.

Agenda Suggestions for New Board:

Chair Markowitz presented a list of agenda items for the new 

Board:

- Follow up on outstanding recommendations.

- Track progress on previous accepted Board recommendations.

- Complete the contracting process so that the Board can have 

a contractor to evaluate claims and scientific and 

technical issues to improve the program.

- Identify scientific and technical issues to contribute to 

improvement of the program. These issues can come from the 

PM, public comments, and the program itself. Some examples 

include Parkinson's disease, group 2A carcinogens, and 

health effects of certain radiologic materials.

- Once the contractor is in place, design and conduct an 

evaluation of a sizeable number of claims to look at 

objectivity, consistency, and quality of the work of IHs 

and claims examiners.

- Follow up on public comments and find a structural way to 

review comments. 
Chair Markowitz added that, several Board terms ago, the 

Department gave the Board data on the top ten conditions, both 

overall and by disease type or organ site. It would be useful to 

update that data to get a sense of where the program is on 

issues of substance. Several Board members agreed that they 

should submit a data request so that the next Board could have 

that information and be up to speed when the next term starts. 

Hearing no objection, Chair Markowitz confirmed that he would 

submit an information request to the Department for an update on 

the top ten tables. 

In response to Dr. Friedman-Jimenez's earlier question, Amanda 

Fallon from the Ombudsman's Office said that her office had

occasionally received some requests for assistance that overlap 

with comments provided to the Board, and they did their best to 

help those individuals when they could. Chair Markowitz 

cautioned that it is not part of the Board's charge to assist

individuals.

Close of Meeting:

Chair Markowitz thanked the Board members, DOL staff, and 

members of the public who have participated in the Board's work 

during the current term. He noted that it is not easy to 

comprehend and assist a complicated system with very few 

resources, but the Board tries its best to understand the 

program and to provide advice to improve it. Dr. Ken Silver will 

not be returning to the Board next term, and Chair Markowitz 

thanked him for his service. Ms. Pope thanked Dr. Silver for his 

assistance to the claimant community. 

Mr. Jansen adjourned the meeting at 3:25 p.m. 

I hereby certify that, to the best of my knowledge, the 

foregoing minutes are on accurate summary of the meeting.

Submitted by:

__________________________

Steven Markowitz, MD, DrPh

Chair, Advisory Board on Toxic Substances and Worker Health

Date: 8/9/2022