Advisory Board on Toxic Substances and Worker Health

July 11, 2022

Mr. Martin J. Walsh

Secretary of Labor

Department of Labor

200 Constitution Ave.

Washington, DC NW 20210

Honorable Secretary Walsh:

On behalf of the Department of Labor Advisory Board on Toxic Substances and Worker 

Health, I submit the attached Advisory Board Recommendation that was adopted unanimously at 

the Board’s meeting on June 29, 2022.

We sincerely hope that our advice is useful to the Department. We thank you for the 

opportunity to serve as Board members and wish the Program continued success in meeting the 

needs of the United States energy employees. Please let us know if there are questions.

Sincerely,

Steven Markowitz MD, DrPH

Chair

Advisory Board on Toxic Substances 

and Worker Health
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Advisory Board on Toxic Substances and Worker Health

Board Recommendation on Industrial Hygiene Report Language 

(adopted June 29, 2022)

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. 

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. 

Rationale

In the recent Board review of selected individual claims that were resolved in 2019-2021, 

Board members noted frequent inclusion in the industrial hygiene reports of conclusory language 

to the effect that there was no evidence found during the claim evaluation that exposures to toxic 

substances of said claimant exceeded regulatory standards. In addition, there is a footnote in 

these reports that exposures to specific toxic substances below regulatory standards will protect 

most workers against harm caused by the toxic substances in question.

The Board had a very fruitful discussion of these statements and their context with Mr. 

Jeffrey Kotsch and Mr. John Vance of the Energy Employees Occupational Illness 

Compensation Program at the Board meeting on May 10-11, 2022. They confirmed the general 

knowledge held by many Board members that relatively little industrial hygiene data are 

historically available from the Department of Energy sites and that, when such data are available, 

they mostly derive from incident-related short-term releases or exposures. While such episodes 

of exposure can lead to acute or, less commonly, persistent health problems, most chronic 

occupational diseases that are the subject of most EEOICP claims are due to ongoing exposure to 

toxic substances over months or years of employment. This applies to cancers, chronic lung 

diseases, chronic beryllium disease, Parkinsonism, and others. Ongoing exposures were 

uncommonly measured at DOE sites (and throughout U.S. industry), especially over the last 

decades of the 20th century. Thus, objective evidence of exposures to toxic substances at any 

level - low or high, or above or below regulatory standards – is mostly absent in the evaluation of 

EEOICP claims and attendant industrial hygiene evaluations of these claims.

It is thus, at a minimum, incomplete and, perhaps more correctly, misleading to state that 

there is no evidence of toxic exposures in excess of regulatory standards when the plain facts of 

the claim are, in most cases, that there is none to minimal industrial hygiene evidence concerning 

the relevant exposures. In the absence of industrial hygiene evidence, it would be equally truthful 

to state that there is no evidence that the claimant’s exposures were below the regulatory 
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standards, implying that exposures may have routinely exceeded such standards. Such a 

statement would be objectionable for the same reasons.

A critical problem with the current text about not exceeding regulatory standards in 

industrial hygiene reports is that the medical consultants (or claims examiners if a medical 

consultant is not used in the case) who are asked to address causation and are given the industrial 

hygiene reports are very likely to use the conclusions of the industrial hygiene reports in 

formulating their causation opinions. Whether these physicians are provided with all of the 

exposure information or not (occupational health questionnaire, employment history, DOE 

records, and others), the fact is that the physicians will in many, and perhaps most, cases rely on 

the industrial hygiene expert in the case, whose opinion is expressed in the industrial hygiene 

report. If the industrial hygiene conclusion is that no evidence exists that regulatory standards 

(which protect most workers, as also stated in the industrial hygiene reports) are exceeded, many 

physicians will use such a conclusion to decide that there is no causation, leading ultimately to 

claim denial. 

For these reasons, the Board believes that the industrial hygienist evaluation should 

adhere to the known facts of the claim combined with the application of their expert opinion 

regarding activities at DOE sites, but that interpreting the claimant’s exposure experience in 

terms of regulatory standards when no or insufficient industrial hygiene data exist is improper,

unfairly tilts the scales against the claimant, and should not be employed.