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U.S. DEPARTMENT OF LABOR

+ + + + +

ADVISORY BOARD ON TOXIC SUBSTANCES 

AND WORKER HEALTH

+ + + + +

THURSDAY

DECEMBER 1, 2022

+ + + + +

The Advisory Board met at the JW 

Marriott Las Vegas Resort & Spa, Cataluna Room, 221 

N Rampart Blvd, Las Vegas, NV, at 8:30 a.m. PST, 

Steven Markowitz, Chair, presiding.

SCIENTIFIC COMMUNITY

AARON BOWMAN

MARK CATLIN*

GEORGE FRIEDMAN-JIMENEZ*

MIKE VAN DYKE

MEDICAL COMMUNITY

MARIANNE CLOEREN

STEVEN MARKOWITZ, Chair

MAREK MIKULSKI

KEVIN VLAHOVICH

CLAIMANT COMMUNITY

JIM H. KEY

GAIL SPLETT

DIANNE WHITTEN

LORNA ZABACK

DESIGNATED FEDERAL OFFICIAL

RYAN JANSEN
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ALSO PRESENT

KEVIN BIRD, SIDEM

CARRIE RHOADS, DOL

GREG LEWIS, DOE

JOHN VANCE, DOL

*Present via video teleconference
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CONTENTS

DOE Overview ................................. 11

Board Discussion Continued ................... 46

Review of Recommendations and

Action Items

New EEOICP Data on Top Ten

Conditions of Claims

Board Request for Resources

Plan for Large Case Review

Additional and New Issues

Review of Public Comments ................... 141

Board Work Plan ............................. 159

Close of Meeting ............................ 161
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P-R-O-C-E-E-D-I-N-G-S

8:28 a.m.

MR. JANSEN: Good morning, everyone. 

My name is Ryan Jansen and I'm the Designated 

Federal Officer for the Department of Labor's 

Advisory Board on Toxic Substances and Worker 

Health.

I would like to welcome you to day two 

of this meeting of the advisory board here in Las 

Vegas, Nevada.

Today is Thursday, December 1, 2022 and 

we are scheduled to meet from 8:30 a.m. to 11:00 

a.m. Pacific Time.

I am, again, joined by Carrie Rhoads 

from the Department of Labor and Kevin Bird, our 

Logistics Contractor.

There will be no public comment period 

today.

The Board's website which can be found 

at 

dol.gov/owcp/energy/regs/compliance/advisoryboa

rd.htm and it has a page dedicated to this meeting. 
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The page contains all materials submitted to us in 

advance of the meeting and will include any 

materials that are provided by our presenters 

throughout the next day.

There you will also find today's agenda 

as well as instructions for participating 

remotely. If any of the virtual participants have 

technical difficulties during the meeting, please 

email us at energyadvisoryboard@dol.gov.

If you are joining by WebEx, this 

session is for viewing only and microphones will 

be muted for non-advisory board members.

So, the public may listen in, but not 

participate in the Board's discussion during the 

meeting.

A transcript and minutes will be 

prepared from today's meeting. As DFO, I see that 

the minutes are prepared and ensure that they are 

certified by the Chair.

The minutes of today's meeting will be 

available on the Board's website no later than 90 

calendar days from today. But if they're 
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available sooner, they'll be posted sooner.

Although formal minutes will be 

prepared according to FACA regulations, we also 

prepare verbatim transcripts and they should be 

available on the Board's website within 30 days.

During the discussions today, please 

speak clearly enough for the transcriber to 

understand. When you begin speaking, especially 

at the start of the meeting, make sure you state 

your name so that it's clear who is saying what.

Also, I would like to ask our 

transcriber, please let us know if you are having 

trouble hearing anyone or any of the information 

that is being provided.

As always, I would like to remind 

Advisory Board members that are some materials that 

have been provided to you in your capacity as 

special government employees and members of the 

Board which are not suitable for public disclosure 

and cannot be shared or discussed publicly, 

including during this meeting.

Please be aware of this throughout the 
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discussions today.

The materials can be discussed in a 

general way which does not include any personally 

identifiable information or PII, such as names, 

addresses, specific facilities if we are 

discussing a case, or a doctor's name.

And with that, convene this meeting of 

the Advisory Board on Toxic Substances and Worker 

Health. 

I will now turn it over to Dr. 

Markowitz.

CHAIR MARKOWITZ: Good morning, 

everyone. Let's do quick introductions before we 

have our guest speaker.

I'm Steven Markowitz, occupational 

medicine, physician, epidemiologist, professor at 

City University of New York and Director of the 

former worker program of 14 DOE sites over the last 

25 years.

Ms. Zaback?

MEMBER ZABACK: Good morning, my name 

is Lorna Zaback. And I'm a new Board member from 
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the Hanford site. 

I have worked on the EEOICP program for 

about 28 years now.

Thank you.

CHAIR MARKOWITZ: Dr. Vlahovich?

MEMBER VLAHOVICH: My name's Kevin 

Vlahovich. I am Medical Director of Employee 

Occupational Health at the University of New Mexico 

and my specialties are preventive medicine and 

occupational medicine.

CHAIR MARKOWITZ: Ms. Splett?

MEMBER SPLETT: I'm Gail Splett. I'm 

retired from the Hanford site from 45 years. My 

last job on the site was the EEOICP program manager 

for Hanford.

CHAIR MARKOWITZ: And Dr. Mikulski?

MEMBER MIKULSKI: Good morning, Marek 

Mikulski, Occupational Epidemiologist, University 

of Iowa, Occupational and Environmental Health.

CHAIR MARKOWITZ: Mr. Key?

MEMBER KEY; Good morning, Jim Key, 

48-year employee, worker at Paducah Gaseous 
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Diffusion Plant and depleted uranium facility, 

president of United Steel Workers Atomic Energy 

Workers Counsel which covers seven or sites across 

the nation representing approximately 7,000 

workers.

CHAIR MARKOWITZ: Dr. Bowman?

MEMBER BOWMAN: Good morning, I am 

Aaron Bowman. I am a professor and head School of 

Health Sciences at Purdue University. I am a 

toxicologist.

CHAIR MARKOWITZ: And Dr. Cloeren?

MEMBER CLOEREN: Hi, Marianne Cloeren, 

Occupational Medicine and Internal Medicine. I'm 

an associate professor at the University of 

Maryland School of Medicine.

CHAIR MARKOWITZ: Dr. Van Dyke?

MEMBER VAN DYKE: Good morning, Mike 

Van Dyke, Industrial Hygienist and associate 

professor at the University of Colorado.

CHAIR MARKOWITZ: And Ms. Whitten?

MEMBER WHITTEN: Diane Whitten, I'm a 

Radiological Control Technician at Hanford for 
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over 34 years. I'm currently the Hanford Atomic 

Metal Trades Counsel Health Advocate.

CHAIR MARKOWITZ: And do we have any 

Board Members on the line?

(Simultaneous speaking.)

CHAIR MARKOWITZ: Okay, fine.

Mr. Vance?

MR. VANCE: Good morning, everyone, 

John Vance. I'm with the Department of Labor and 

I'm the Policy Branch Chief for the program.

CHAIR MARKOWITZ: And Mr. Lewis?

MR. LEWIS: Hi, I'm Greg Lewis with the 

Department of Energy. I'm the Director of the 

Office of Worker Screening and Compensation 

Support.

CHAIR MARKOWITZ: Ms. Jerison?

MS. JERISON: Deb Jerison, Energy 

Employees Claims Assistant Project.

CHAIR MARKOWITZ: And Ms. Blaze?

MR. BLAZE: I'm D'Lanie Blaze of Core 

Advocacy for Nuclear and Aerospace Workers.

CHAIR MARKOWITZ: Okay, thank you.
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Is Dr. Friedman-Jimenez on?

(Off microphone comment.)

CHAIR MARKOWITZ: Okay, fine. Well, 

he's Board Member. He's an Occupational Medicine 

physician, head of Occupational Medicine at 

Bellevue Health Center Hospital in New York City 

and a long-term Board Member.

And Mr. Catlin who's an Industrial 

Hygienist consultant will be joining us in about 

an hour or so.

So, let's begin with Mr. Greg Lewis who 

is Director of the Office -- I think he just said 

who he was, but let me -- while he's sitting down 

-- Director of the Office of Worker Screening 

Compensation Support at Department of Energy.

And we, once again, thank Greg for that 

great tour that he arranged for us a couple days 

ago.

So, welcome.

MR. LEWIS: Hi, everyone, good 

morning. I'm glad you enjoyed the tour. That was 

the first time I've toured the test site as well. 
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So, I was excited to finally get to tour that 

facility.

So, I'm here, again, I'm Greg Lewis. 

I'm the Director of the Office of Worker Screening 

and Compensation Support at the Department of 

Energy. And my office does two things, it funds 

and supports Department of Energy's role in the 

EEOICP, the compensation program, and then we also 

fund and support the former worker medical 

screening program, which I know many of you are 

familiar with.

I'm going to talk to you mostly about 

our role in the EEOICP and how we conduct record 

searches. And then, at the end, I'll give you a 

little bit of information about our former worker 

program.

Next slide?

So, under EEOICP, we do three things, 

but basically, all three are providing records and 

doing research into DOE facilities, operations, 

and history.

Primarily, the biggest thing that we do 
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is respond to Department of Labor and to NIOSH for 

individual claims. So, when someone applies to 

the program and says they worked at Los Alamos or 

Hanford or wherever, we, you know, my office funds 

and supports the effort to respond to that request 

to make sure DOL and NIOSH get all the information 

that they need to adjudicate that claim or 

reconstruct dose.

But we also provide support and 

assistance to both DOL and NIOSH on large-scale 

site characterization projects or research 

projects. So, things like the site exposure 

matrix or special exposure cohort, research 

projects, we assist both departments with that 

research.

And then, the third thing that we do, 

which is a little bit smaller but equally 

important, is conduct research into facility 

coverage. For the most part, facility coverage is 

established, particularly for the bigger DOE 

sites, but there are over 350 facilities covered 

under this program, many of those are -- most of 
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those, actually, I should say, are much smaller 

atomic weapons employers who did, you know, very 

targeted work for DOE for a year or two, sometimes 

for a month or two or even a week or two.

So, the amount of information available 

on those facilities is not as comprehensive. So, 

every once in a while, we have to change or update 

that facility coverage, either add a facility, take 

away a facility, or adjust the years. So, we 

research and work with Department of Labor and 

NIOSH to do that.

Next slide?

So, for the individual claims, which 

is, again, you know, the bulk of what we do is manage 

the response to individual claims requests. And 

really, the linchpin of that, the people that 

really do that are our site POCs, or points of 

contact, one of which is on the Board and one of 

which is formerly our POC on the Board for Hanford.

So, they are really the most important 

-- they are the person that really coordinates 

this. They manage the process. They manage the 
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QA/QC on these claims. They also help facilitate 

the research projects. They help set up site 

tours, as you know.

And they also provide on site 

information to the workers. You know, they let 

them know about these programs that they're 

eligible for, also brief management about these 

programs and, you know, what they're workers are 

eligible for.

So, our -- the POCs are really the most 

important people in this process around the 

complex.

Next slide?

So, with the individual claims, they're 

broken up into three, you know, it's all individual 

worker records, but we kind of count them in three 

different ways.

The first is the employment 

verification which is kind of the first step in the 

process and the most basic step. Department of 

Labor's going to send us a request, asking, you 

know, so and so's applied to the program. They 
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said they worked at this facility or these three 

facilities. Did they work there? And in what 

years and, you know, what was their job title? 

Just a basic, you know, did they work at the DOE 

facility and for how long?

Then, we'll also -- I'll go out of order 

here -- then the next step is Department of Labor 

is going to send a second request for that same 

individual, we call it DAR, Document Acquisition 

Request, just kind of an acronym we came up with 

at the beginning of the program.

But what that's going to ask for is 

basically everything else on that individual, any 

kind of exposure information, anything about what 

that worker did, where they were, any kind of 

detailed information about their employment.

And then, the third type of request is 

what we get for NIOSH and that's generally asking 

for radiological monitoring and dosimetry data. 

Where we find that is, you know, sometimes it's in 

some different places but they're basically asking 

for the radiological monitoring data.
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Next slide?

And actually, before I continue, I 

should say, I'll certainly take questions at the 

end, but if people have questions while I'm talking 

about something, feel free to ask. It's probably 

easier to cover while I'm on the slide. So, if you 

have a question, just let me know.

So, a little bit of history about our 

search process. You know, again, we've been doing 

this for about 20 years now. So, when we started, 

pretty much everything was in paper. You know, we 

were printing things out, photocopying paper 

records, boxing them up, and, you know, mailing 

them to the Department of Labor, NIOSH.

As time went on, it started to become 

a mix of paper records and then also electronic 

records on CD, particularly as the workers, you 

know, were applying that were a little bit more 

current, we might have information electronically. 

So, we were putting it on a CD.

Then, we finally went to all records on 

CDs. So, instead of photocopying, we were 
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scanning and putting things on CD or thumb drive.

Then, we got a little bit smarter about 

the protection of PII, because, as you can imagine, 

you know, there's health information in here. 

There's HR information. There's all sorts of 

sensitive information about these workers. So, 

instead of sending it just in digital format, we 

started encrypting those CDs or thumb drives.

And then, finally, about ten years ago, 

we went to what we call our SERT system, which is 

-- the acronym stands for Secure Electronic Records 

Transfer system. And it's a web-based encrypted 

system that Department of Labor, NIOSH, and all of 

the DOE sites have access to.

And in that way, the DOL and NIOSH 

initiate the request through SERT. And as soon as 

they click, you know, they put in the information 

and they click send, it pops up on the DOE side.

So, we've eliminated all of the, you 

know, two or three days or more back and forth with 

shipping things. And so, it's instantaneous. 

They upload and click send, the site gets it, and 
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is starting on it that very day. And when the site, 

you know, gets everything together, they upload it 

back to DOL or NIOSH and it's instantaneous, it's 

real time.

It helps with tracking and helps with 

management. And it also makes sure things aren't 

lost in the mail. So, you know, and it protects 

the PII, most importantly, it's, you know, getting 

it to an encrypted system that protects that 

personal information.

Next slide?

So, we've also, throughout the history 

of the process, done quite a few scanning and 

indexing projects. You know, I would have loved 

to say that all of the records for all time, in DOE 

are scanned and digitized, but that's not even 

close to being the case, unfortunately. Again, we 

have thousands and hundreds of thousands of boxes 

of records. So, that's not all digitized.

However, there have been some 

large-scale digitization efforts, probably most 

notably at Hanford, has been doing a huge 
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digitization project for, I don't know, five, six, 

seven, you know, quite a while now.

So, they actually have scanned and 

digitized a huge percentage of their collection, 

or at least a collection that they use for EEOICP, 

but I'm sure there's plenty of site records that 

are still in paper format.

There's been a few others, Idaho, 

Nevada, most notably. But most of our scanning and 

indexing or digitization projects are smaller and 

targeted. You know, we try pick the collections, 

again, we don't have the money to scan thousands 

of boxes.

But, you know, in many cases, there 

would be a set of binders or, you know, a few boxes 

that, you know, those high-touch collections that 

we're going to repeatedly, over and over, but were 

difficult to get at the information. Either they 

weren't organized very well, they weren't indexed. 

Sometimes, you know, there were collections 

organized by year, not by name or by facility, not 

by name.
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So, we've tried to go through those and 

organize them in a fashion that we can get to 

quickly. And where possible, we've scanned them 

so we can type it in and then just drag and drop 

the result into the -- into our response.

So, we have done quite a few efforts to 

modernize and make our process more efficient. We 

certainly have more work to do, though, in that 

regard.

Next slide?

So, at most -- every site is different 

in terms of how they respond to EEOICP records 

request. But generally, they follow kind of a 

typical pattern.

So, what happens is our EEOICP POC 

receives the claim through our SERT system. And 

typically, will do some type of triage on that 

claim. You know, one, they're going to check to 

make sure, you know, is the name, Social Security, 

date of birth, you know, the information in there, 

does that match what we have? Does that look 

correct?
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Oftentimes, they're going to cross 

reference that to find a site ID number, you know, 

or some type of site badge number because there may 

be unique identifiers used by that site. So, 

they're going to cross reference it for that.

And then, also, sometimes, they'll 

check to make sure, you know, at many of these 

sites, there's multiple generations, there are 

multiple family members. So, they'll make sure 

that, you know, they're -- it's the senior, not 

junior, or junior, not senior. You know, or making 

sure that they're looking for the right person and 

all of that information matches.

Next slide?

And then, that EEOICP POC is going to 

send that records request out to various responsive 

records areas. You know, typically, they'll go to 

the human resources Department, medical, IH, 

RADCON or dosimetry. Sometimes, there's a 

different group for incident or accident reports.

And then, sometimes the records are 

archived. So, they're going to farm it out to 
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three, four, five, six different locations and 

those groups are going to pull everything they have 

on that particular individual and send it back to 

the POC.

Next slide?

So, you know, with each of these groups, 

and I'll make this point a few different times, and 

there's actually a chart a little bit later on that 

I think illustrates it pretty well, but the 

process, you know, particularly for a long-term 

site employee, a 10, 20, 30, 40 year employee, these 

different groups oftentimes have to go to a number 

of different locations to find records on one 

individual.

You know, and it really depends, they 

might find it all in one place. If they were a 

part-time worker, everything might be, you know, 

fairly easy. But again, if they were a long-term 

worker, if they worked for multiple different 

contractors or subcontractors, if they were a 

construction worker or an on site, off site, on 

site, off site, you know, it might be -- there might 
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be a number of different locations where we have 

to search for these records and find records on the 

individuals.

Next slide?

So, you know, and again, as I was 

saying, the type of worker is going to be, you know, 

is really going to determine where those records 

might be, how long the worker is going to help 

determine where those records might be.

And also, when they were there. You 

know, a worker in the '40s, '50s, and '60s, we're 

going to have to go to a completely different 

location than someone that was '80s, '90s, 2000s, 

usually, not always.

And then, also not all records have the 

-- or not all sites have the same models. Like 

legacy management has the closure sites. Because 

it's not an active site, there's not all of these 

different departments. Everything is one records 

archive area.

Or in some places, I mean, actually 

Hanford does this, they've pulled some of those 
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different groups all into one central group where, 

instead of going to IH or medical or RAD, they have 

one central group that can just check those 

different, you know, that has access to those 

different search tools and databases so they can 

do it all from a central location.

And then, also, for federal employees, 

we typically have to go to the records archive in 

St. Louis.

Next slide?

So, I know none of you can read this 

slide really, and that's not the point. I've got 

two slides up here, but this is just an example of 

a records source table from one of our sites. And 

I think it's Idaho, but don't quote me on that. And 

it's actually, it's out of date, so I'm sure it's 

been updated since, you know, since I've put this 

slide in years ago.

But this is -- and actually, if you can 

go to the next slide because this is the second?

Yes, so, you can't read it, but on the 

left column, it's talking about the type of record. 
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So, it's like radiological records, medical 

records, things like that.

And then, in there, I think the middle 

column which you can't see really, but you'll see 

there's probably ten different entries and one, you 

know, five, six, seven, there's a number of 

different entries. Those are the type of 

collections and the years that are covered.

So, if you worked from, you know, '65 

to '70, you'd have to go to one of those lines. If 

you worked from '75 to '77, you have to go somewhere 

else.

And then, in the second to the last 

column up there, again, which you can't read, but 

it has the format of the records. So, you've got 

some records that are electronic. You've got some 

that are paper. You've got some that are 

microfilm. You've got some that are microfiche.

So, every single one of these lines on 

here is a records source. It's a place that we 

might have to go to check for one individual.

Now, you'd never have to go to every 
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single one of these for an individual, but at many 

sites, you might typically have to go to 20 

different places for one individual or more if they 

were a 20 or 30 year employee at a site that, you 

know, went through different contractors.

And a lot of this, that's why, as a new 

contractor came on site, they had their own way of 

doing things. They had their database. They 

liked to use microfilm. They liked to use paper, 

whatever it is. But a lot of these contractors 

would change things or managers, you know, would 

also like the newest and different things. So, 

there was a lot of change with records management 

and that's really reflected in how we have to search 

for records.

Next slide?

So, I'll give you some metrics about, 

you know, what we do and how many we handle.

We do about 14,000 records request a 

year. That's for all three types. So, it's not 

14,000 unique individuals, it's somewhat less than 

that. But we do 14,000 records responses per year 
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from over 25 different DOE locations.

Next slide?

And I have -- and these actually -- this 

is somewhat dated. I haven't rerun these numbers 

in a little while, but I think it's probably pretty 

similar to what we're doing today.

These are some average numbers as far 

as the size of records packages. But it's really 

only useful as an average. I mean, the, you know, 

for long-term M&O employees that were there for 30 

years, we might have literally thousands and 

thousands of pages for some construction workers 

or subcontractors, particularly those that weren't 

there for very long.

We might, unfortunately, not be able to 

find a single record on the individual.

But for averages, for an EV, we average 

about 15 pages per response. For a NIOSH request, 

about 50. And for a DAR, about 150.

Question?

MEMBER BOWMAN: Yes, Aaron Bowman.

You had -- you're emphasizing looking 
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up records relating to an individual and gave an 

example of maybe someone that might be there a short 

period of time and there may not be an individual 

record.

Are there records, if you know where 

they worked, do you send information relevant to 

all workers in this area would have had potentially 

these exposures? Or is it only if you have an 

individual?

MR. LEWIS: So, typically, not. And 

part of that is -- actually, most of that is because 

of the site exposure matrix.

I mean, there are some cases where, if 

we're unable to find anything and, you know, the 

claim says that they worked in this area, we might 

send some generic information back about those 

areas.

But typically, in these requests, we 

are looking for information just something with 

that person's name on it or tagged specifically to 

that person.

And I should say, you know, for subs, 
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that's probably -- for construction subs, in 

particular, are probably our most challenging type 

of requests. And for those, you know, we know most 

of the time we're not going to have kind of a formal 

HR record or a formal record. 

But we have to kind of look for those 

secondary records on those subs. That's where 

we're able to find something.

So, what we're looking for is 

dosimetry. You know, if they worked in a RAD area, 

they should have been badged. So, we're going to 

look, you know, are there any dosimetry information 

on the person.

Accident or incident, you know, they 

might -- they probably wouldn't have gone to the 

medical clinic for routine physicals, not to say 

they didn't, but a lot of times, subs wouldn't have 

done that.

But if they were involved in an 

accident, even if it's not related to a chemical 

or radiological exposure, even if it's a slip, 

trip, or fall, it's still going to put them on site 
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and it's going to put them in a certain facility 

and might have some information about what they 

were doing when they fell off that ladder or 

whatever the case may be.

So, we kind of look for those. 

Sometimes security, you know, clearance, if they 

had a clearance or a badge that wasn't always kept 

for a long period of time, but if we have those, 

we'll find it.

And sometimes, we have gate logs or sign 

in sheets where people went in and out of the 

facility. Again, those typically weren't 

retained for a long period of time, but sometimes 

they were, you know, through inertia or whatever 

else. So, we'll try to check those secondary 

sources for information on construction subs.

Next slide?

So, we also -- timeliness. We have 

had, since the start of the program, we've had a 

60-day goal to get these records back to Department 

of Labor and NIOSH.

In FY22, we had about an 85 percent on 
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time response rate. Prior to the pandemic, we were 

at a 98 percent response rate. So, the pandemic 

caused us some significant problems, mostly with 

paper records, things held off site or access to 

the facility, you know, for a time.

Since the pandemic has waning, we were 

catching up as far as our timeliness, but then, we 

also had an issue where we changed our PII -- PII's 

personal identifiable information -- we changed 

our requirements for protection of PII and 

redaction of PII so that caused us some significant 

delays in 2022. So, we just hit our 85 percent 

goal.

Our goal is to be back over 90 for next

fiscal year and we'd like to get back up into the 

high 90s within a year.

So, next slide?

So, I'll talk a little bit about the 

SEM, but I know you heard from John yesterday, so 

I know you're pretty well versed in the SEM.

But, you know, as far as site 

characterization projects or site research, that's 
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probably the biggest thing we do for the Department 

of Labor is support the Paragon team and SEM 

research.

For the initial SEM back in the, you 

know, late 2000 time frame, teams from DOL went to 

every DOE site, myself or some of my office 

accompanied them on most of those visits.

The site worked with the Paragon team 

and provided, you know, thousands and thousands of 

records. I know there was some talk, I believe Ms. 

Blaze was talking about a specific reference 

yesterday, and I think everything in that SEM 

refers back to a specific document and has a 

document number. And I think almost all of those 

documents came from DOE and the DOE sites and may 

have gotten some things from the public or 

elsewhere.

But pretty much most of those records 

were from DOE and part of that initial research 

effort. 

I think John mentioned the SEM's 

reviewed for classification every six months. So, 
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the -- what the DOE, or sorry, what the DOL claims 

examiners are using at any given point is slightly 

different than what the public has access to but 

only in a matter of a six-month update.

So, every six months, we review that and 

it gets populated live on the public facing SEM.

Question?

MEMBER BOWMAN: Yes, just a quick --

sorry, this is Aaron Bowman again. A quick 

question on that review.

Are there ever items that are released 

from the private to the public that then on a 

subsequent review go back to just being private?

MR. LEWIS: That's a good question.

So, let me see if I -- so, there has --

in my recollection, I don't believe that there's 

been anything removed from the SEM. There may have 

been, in some cases, a request to change a word to 

a different word or make it slightly less 

descriptive.

But when I say every six months it's 

reviewed and updated, there's not a different SEM 
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that Department of Labor uses. It's only that six 

months. So, there's not a SEM that has, you know, 

everything that gets denied from the 

classification review stays in the DOL SEM, but is 

not in the public SEM. They are one in the same.

The only difference is, it's up to a 

six-month lag. So, there's not a SEM with 

classified information in it. It is made sure it's 

not classified.

And, again, I think there's been little 

to nothing removed and the only thing I can remember 

is things were maybe changed slightly to, again, 

make them less descriptive, you know, be less 

descriptive about the, you know, where that, you 

know, don't state the sub-facility, just say a 

chemical was at, you know, a bigger building or 

something. They didn't want to be as specific with 

the description. That's it.

MEMBER BOWMAN: And if, in cases where 

there are, say, classified hazardous materials 

that can be in the SEM because they're classified, 

are there efforts made to indicate a, you know, 
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there was a substance that might be a oxidative 

stressor or that might be -- is there anything to 

sort of make them declassified, but in some way they 

could be accessed?

MR. LEWIS: So, how it's been explained 

to me is the presence of any chemical at a site level 

is not classified.

So, there always is going -- they can 

have any substance listed at the site. It's when 

you get into how a substance was used or 

specifically where it was used that you can get into 

problems. 

So, at worst, instead of saying that 

such and such was used in this particular place by 

these particular people, they might just have it 

a site level. That's how it's been explained to 

me by the ombudsman.

MEMBER BOWMAN: So then, potentially a 

search that someone narrowed down, I went at this 

building, might be incomplete and they would get 

a more complete list if it was the entire site?

MR. LEWIS: possibly, but I'd have to, 
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you know, I'm not super well versed on exactly what 

has been adjusted. I think there hasn't been very 

much is my understanding.

MEMBER BOWMAN: Okay, thank you.

MR. LEWIS: So, let's see, next slide, 

please?

And we continue to support DOL and 

Paragon team with SEM updates.

Next slide?

We also support outreach efforts. We 

partner with Department of Labor, NIOSH, the DOL 

and NIOSH ombudsman as well as our former worker 

medical screening programs to conduct outreach. 

We call it the Joint Outreach Task Group because, 

again, while all of those groups have a little bit 

different of a mission, they're generally trying 

to reach out to the same people.

So, we found it more efficient on our 

end to partner for outreach and we also think it's 

more efficient for the workers because, instead of 

going to a meeting and having to question and 

saying, oh no, you've got to ask NIOSH or you've 
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got to ask the former worker. We are hoping to 

bring all of these groups together so no matter what 

the concern, question, issue that a person has, 

there's someone there that can help them or help 

point them in the right direction.

So, we partner with these groups for 

outreach. We're getting back to in person 

outreach. And we've, of course, ramped up our 

virtual outreach which has been very successful 

under the pandemic and we're going to continue it, 

you know, just because it's an efficient and easy 

way to do things.

Next slide?

And then, I'm just going to talk to you 

briefly about the former worker medical screening 

program. That's the other program that my office 

funds and supports.

It was established back in 1993, 

although it really didn't get going, I think, until 

about 1996.

Next slide?

And so, the program serves all former 
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workers from all DOE sites. We're able to provide 

screenings close to where people live. We have six 

different groups that implement the screenings, or 

six different partners, I should say. And many of 

them are represented here at this table.

We identify and notify former workers 

that they're eligible for these screenings. We 

offer them the screening. We have occupational 

medical physicians that are able to review the 

results, provide them a letter that, if they, you 

know, have a finding, potentially these occ docs, 

you know, understand the DOE sites and are able to 

tie that finding to the work that the person did 

which then helps them, you know, follow up with the 

Department of Labor for compensation, you know, if 

relevant, or you know, if they have a finding that 

could qualify.

And of course, the former worker 

program isn't directly -- you do not have to go 

through the former worker program to go through the 

compensation program but certainly it provides a 

leg up and provides some assistance in getting the 
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right language, the right letter that ties that 

disease to the exposure.

So, you know, I think -- next slide?

I think that's -- I have the maybe the 

website for the former worker program, yes. So, 

for more information on the former worker program, 

you can go to that website. It's a great resource.

Again, it's free. It's convenient. 

They understand the exposures and they understand 

the right tests to do to, you know, to hopefully 

find things early and lead to a better medical 

outcome.

So, I think that's it. Are there 

questions?

CHAIR MARKOWITZ: Dr. Cloeren?

MEMBER CLOEREN: Hi, Marianne Cloeren.

I have a question about -- a couple 

questions really, about the DARs.

How often and kind of like what is the 

trigger, I guess, for a claims examiner to do a DAR? 

It's not done in all cases, is it? Just cancer or 

is it in all cases?
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MR. LEWIS: It's pretty much done in 

all cases.

MEMBER CLOEREN: That's interesting.

MR. LEWIS: I mean, the question for 

DOL, I don't know why we wouldn't. I mean, I guess, 

if a person qualifies for a special exposure 

cohort, I think theoretically, you might only need 

to do the employment verification because they have 

the cancer and you just need to show the 250 days.

In practice, however, when an SEC goes 

through, we still typically see DARs. I think 

that's maybe because, you know, there may be 

multiple conditions. They might also be looking 

to establish wage loss or even with the cancer, they 

can file under B and under E for that same cancer.

So, in practice, my understanding is 

most claims, almost all claims, get an EV and a DAR.

MEMBER CLOEREN: Follow up question, 

thank you.

Can claimants get copies of the 

information that is produced in a DAR?

MR. LEWIS: They can and there's a 
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couple different ways they can do that. 

They can file a FOIA or a Privacy Act 

request directly with the Department.

They can also get a copy of that 

information as part of their claim through DOL.

So, I think either way, they can get 

access. They certainly don't have to request 

their records. In some cases, it can be a little 

frustrating when we get multiple, you know, we get 

a lot of FOIAs and PAs and also a lot of EEOICP. 

We're doing kind of the same thing but for different 

ways.

But it is certainly a claimants right. 

They can always request their information directly 

from us or get it from DOL on the back end.

CHAIR MARKOWITZ: Other questions or 

comments?

I have a quick question. Is DOE 

constantly finding additional records that are 

given to DOL to add to the SEM?

MR. LEWIS: Yes. I mean, so, yes, as 

far as the SEM, I mean, Department of Labor is 
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always working with probably at least a couple of 

our sites with, hey, we, you know, are looking to 

update from 2010 to present. You know, if the 

site's doing current activities.

Or we have a request from -- because, 

you know, I think on the SEM website, you can submit 

information. So, if someone submits, you know, 

some documents, they might send us a request. Hey, 

do you have anything else that would also, you know, 

that would help verify whatever this person is 

requesting?

Sometimes the person doesn't have 

documents but they say, hey, I worked in so and so 

and I was exposed to whatever. So, they're -- DOL 

is constantly working with our sites to update the 

SEM.

CHAIR MARKOWITZ: Other questions or 

comments?

Ms. Whitten?

MEMBER WHITTEN: Diane Whitten.

I'm not sure you were in here yesterday 

when we were discussing the SEM and how it's somehow 
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been rearranged such that all of the reactors in 

the 100 areas, if you look them up in the SEM, they 

don't even have as much as asbestos listed as one 

of the chemicals. And now, they're listed as a 

museum. 

So, I mean, who makes the decision 

ultimately to rearrange the SEM in such a way that 

it's more what it is currently today and not what 

it was 30 years ago when I was working there?

MR. LEWIS: Yes, so, I did hear that 

discussion and that's really a question for John 

or for DOL. 

I mean, we provide the information but 

how that's used and how it goes into the SEM, I think 

there's -- they've come back to us with questions 

on occasion, you know, about, you know, would DOE 

verify this.

But, again, even when they have 

questions, it's not a DOE says yea or nay, we 

usually provide some document that would show --

that would establish a connection between a 

facility and exposure or a worker and a facility 
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or whatever the case may be.

So, no, we don't make the 

determinations of how things -- how and why things 

are included or not included in SEM or how they're 

tied together.

CHAIR MARKOWITZ: Any other comments?

Okay, then, thank you very much.

MR. LEWIS: Thank you.

CHAIR MARKOWITZ: So, before we go on 

to our agenda, I just I want to take a moment to 

talk about someone who's missing here today 

actually. And some of the newer Board members may 

or may not have known here.

Terrie Barrie as an advocate, a very 

strong advocate for this program, attended most of 

our meetings.

She was the leader of ANWAG, A-N-W-A-G, 

the Alliance of Nuclear Worker Advocacy Groups. I 

think I got that right.

And she was a -- just a very 

knowledgeable, strong voice on behalf of workers 

at the various DOE facilities.
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Her husband was a worker at Rocky Flats, 

made ill as a result of his work at Rocky Flats. 

And she'd been involved with helping the program, 

helping keep the program accountable for many, many 

years. I don't really know how long it was.

And, you know, she had a -- kind of a 

growly voice, like a low voice. And but, so I'm 

sure she could growl when she needed to. But what 

she actually said made so much sense.

Her critique of the program, her 

assistance in pointing out deficiencies, areas 

that needed to be improved.

And so, we miss her. We miss her voice 

here today.

I also want to say that, you know, the 

advocates, in general, have been instrumental and 

I think creation of this program, creation of the 

former worker program by advocates, I mean, the 

workers themselves, the labor unions, allied 

advocacy groups.

From the very beginning, from the '90s 

in terms of essentially working on behalf of DOE 
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workers to achieve a level of justice, whether it's 

former worker program identifying occupational 

disease in a timely way, whether it's creating 

compensation programs or getting compensation, the 

advocates really have been key.

And Terrie was really at the center of 

that. And so, I just want to say that we miss her 

and we know there are other leaders and we look 

forward to that leadership continuing to play a 

role in this program.

Because we need it, so that's all I 

wanted to say.

Okay, well, so now, on to today's 

agenda. What I did was collect some of the things 

that we discussed yesterday and listed them here.

And we're going to touch on all these 

things today. We have an hour and 45 minutes 

roughly. I'm not -- I don't know that we're going 

to be able to finish everything, but we need to at 

least to plan on how to deal with some of these 

topics that have been raised that are on our agenda.

And so, as we work our way through these 
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things, think about working groups, think about 

maybe, you know, normally we meet twice a year in 

person, in person the pandemic, but twice a year 

for a day and a half to two days.

We might give consideration to a 

telephonic meeting in three months from now to 

resolve some issues that we can't resolve today but 

we don't want to wait for six months. So, just keep 

that in the back of your mind.

We talked yesterday about asbestos 

presumption in relation to engineers. And I kind 

of think we're at a stalemate on this issue.

That the belief of some members of the 

Board was that certain types of engineers should 

be presumptively regarded as having significant

exposure to asbestos prior to 1995 and that Paragon 

doesn't agree with that position or believe that 

the DOE experience -- engineers in the -- across 

the complex doesn't necessarily represent the 

overall experience that -- from the National 

Occupational Mortality Survey.

So, I don't really see any -- the only 
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thing I can think of is, if we were to look at denied 

mesothelioma claims, right? So, these are, you 

know, malignant mesothelioma maybe 90 percent of 

the time is caused by occupation.

So, there are very probably very few 

denied mesothelioma claims.

And if we were to look at -- go back two, 

three years, a limited number of claims, and find 

engineers in that list, I'm doubtful we would for 

a number of reasons, mostly in part small numbers.

But if there were sizeable numbers and 

we did not find engineers, then the engineers that 

we've been discussing, then we would understand 

that they've been treated appropriately by the 

program, even without a presumption. Right?

In other words, the program recognized 

that they had asbestos exposure and it was due to 

their work as engineers and there would be no need 

for a presumption. Right?

So, I don't -- we can ask how many denied 

mesothelioma claims there are over a reasonable 

period of time, you know, say the last three years. 
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And if it's a handful, I don't think we'd learn all 

that much because the numbers would be too small.

And if we're several handfuls, maybe 

it'd be worth looking at. Just really for the 

occupational history, job titles, for those denied 

claims.

So, what are your thoughts about this?

I don't -- just one additional thing, 

we learned yesterday, we can't search for engineer 

claims. We can't search the database by job title. 

So, that's out. And we can't search for 

combination of disease and job title as well.

Dr. Cloeren?

MEMBER CLOEREN: Hi, Marianne Cloeren.

I think we are missing some important 

information we don't look at the approved claims, 

too. Because what if, like 50 percent of the 

accepted claims happen to be engineers? I mean, 

it's unlikely.

But by not looking at the accepted ones, 

we may miss like a trend there. That might speak 

--
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CHAIR MARKOWITZ: Yes.

MEMBER CLOEREN: -- you know, toward a 

need for a presumption.

CHAIR MARKOWITZ: Yes, I mean, the part 

of -- my hesitancy about that is that it's a lot 

of work to look at accepted claims.

And we're -- our interest is really are 

they being missed? Not are they being accepted?

I mean, I realize they're related, but

if they were being missed, that would be a problem. 

If they're being accepted, then we know we have no 

problems. So, they're complimentary approaches, 

yes.

MEMBER CLOEREN: Could we start with 

asking just like numbers of claims for mesothelioma 

and the approved and denied?

CHAIR MARKOWITZ: Sure.

MEMBER CLOEREN: Numbers? I mean, 

that might be a starting point.

CHAIR MARKOWITZ: Yes, that'd be easy. 

That'd be easy.

Dr. Bowman?
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MEMBER BOWMAN: This is Aaron.

Just on -- I presume the ones that we 

would be interested in looking for are those 

specifically denied for A negative causation 

results, maybe just that category?

CHAIR MARKOWITZ: Yes, negative 

causation, yes.

MEMBER BOWMAN: Right. And ignore all 

other categories of denial.

CHAIR MARKOWITZ: Yes, a good point.

So, other comments? Questions?

Dr. Friedman-Jimenez, if you're on the 

phone?

So, we could submit a request, it's not 

a recommendation but a request for information. 

And that is the number of denied malignant 

mesothelioma claims over the past -- we could --

I don't think there are large numbers, five years, 

you know, by year so we know how many each year, 

for which the reason for the denial was that there 

was negative causation.

So, actually that's -- we need to vote 
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on that because that's an information request. We 

need to vote on information requests, Ryan?

MR. JANSEN: No, I don't believe so.

CHAIR MARKOWITZ: No? Okay, okay, 

okay, fine. We don't need to vote on that. Thank 

you.

But we -- hearing nobody in opposition, 

then we'll do that and then we'll take it from 

there.

Okay, next is we discussed site wide job 

titles and the SEM. So, we discussed this 

yesterday that there are a limited number of job 

titles that vary somewhat across the complex. It 

might be a little bit different, a security guard 

might have a different title at Paducah than it has 

at Rocky Flats, et cetera.

But they're easy enough to identify in 

the SEM actually in which we believe that the SEM 

may be under counting their potential for toxic --

exposures to toxic substances.

And so, the question is, and whether we 

want to develop a new recommendation and I mean, 
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this -- we've gone back and forth with the 

Department about this in the past. They've 

rejected our recommendation on this.

But the new approach would be not that 

the SEM would be altered, but that the procedure 

and handling these claims from this limited number 

of job titles would be that they would go to the 

industrial hygienist with consideration of a 

broader set of exposures at the particular site 

where that claimant worked.

There is the issue of who's in and who's 

out, which job titles are included. And which is 

a real issue, but I don't think an issue that would 

sort of kill this approach.

Anyway, let's discuss this further and 

see if we want to make a recommendation about this 

or whether we want to collect additional 

information and consider it in the future.

Dr. Cloeren?

MEMBER CLOEREN: Marianne Cloeren.

Would we need to or would it help if we 

were the ones that drafted kind of the language for 
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the claims examiners to use, you know, for the --

which job titles it is?

I mean, it sounds like what we need is 

sort of a narrative description like for jobs like 

this, this is kind of what the job entailed, you 

know, so kind of keep that in mind.

I don't know where they would get the 

information to share with the industrial 

Hygienist.

CHAIR MARKOWITZ: Yes, in general, you 

know, we don't get into that level of detail in the 

language of our recommendation. We provide some 

rationale with our recommendation.

So, but there's only so much detail we 

would be -- it would be appropriate for us to 

address. But I do think that we could either not 

specify job titles and just say site, you know, job 

titles that are -- had site wide work and exposures 

should be considered in this respect.

Or we could say site job titles such as 

and specify firefighter, janitor, security guard, 

maybe health physics techs, industrial hygienists, 
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not sure there are any others offhand unless you 

get into the maintenance job titles.

Thoughts on this?

Yes, Dr. Van Dyke?

MEMBER VAN DYKE: So, I think it's a 

good idea. And I think we can all agree on, you 

know, janitors, firefighters, security guards at 

this point.

So, I don't think it's worth holding up 

trying to, you know, figure out the exact right list 

because we could change that going forward.

But I agree that those should go into 

somewhat more detail in terms of looking at the 

exposures and whether that's a -- I mean, I guess 

it would have to be a policy recommendation, right, 

that we would recommend that those mobile job 

titles go to the industrial Hygienist along with 

the occupational history questionnaire in order to 

be evaluated. Right?

CHAIR MARKOWITZ: Right, right, yes.

Other comments?

Yes, Ms. Whitten?
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MEMBER WHITTEN: Diane Whitten.

The only thing that kind of concerns me 

is that different sites had different job titles 

for different job functions.

Say at Hanford, we have Teamsters, but 

they don't just drive trucks. They dig ditches. 

They do -- they stock, they use the dirty 

contaminated laundry. I mean, there's other 

functions they do. So, we'd have to be careful on 

just using job titles.

CHAIR MARKOWITZ: Well, the, you know, 

the -- Dr. Bowman?

MEMBER CLOEREN: Marianne Cloeren.

So, it sounds like what the -- I'm 

trying to figure out how a claims examiner would 

kind of put this into action and so it might be that 

for jobs that appear to be ones that where the 

person would be kind of broadly all over the place, 

that that would be one where they would want to make 

sure that the industrial Hygienist does an 

occupational health questionnaire.

I know that's an option and it's not 
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used all the time.

CHAIR MARKOWITZ: Well, just a point of 

correction, the occupational health questionnaire 

is --

MEMBER CLOEREN: The interview.

CHAIR MARKOWITZ: Yes, the --

MEMBER CLOEREN: I meant an interview.

CHAIR MARKOWITZ: You mean the 

interview, yes.

MEMBER CLOEREN: I mean a live 

interview, yes, thank you.

CHAIR MARKOWITZ: Yes.

MEMBER FRIEDMAN-JIMENEZ: Hi, this is 

George Friedman-Jimenez.

Steve, I want to respond to your 

question earlier.

Going back to the engineers, however, 

this is more general, I looked at the numbers of 

the top ten answers and mesothelioma, which is 

ICD-10 code 45.9, doesn't appear on that list.

The total claims for the smallest 

number on that list is 139. So, it's presumable 
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that there are less than 139 cases of mesothelioma.

So, I think we wouldn't have enough 

numbers to use mesothelioma as sort of indicator 

of asbestos exposure for engineers. I don't think 

that would likely answer the question.

Likewise, for respiratory conditions, 

you know, the -- you could look for engineers under 

the pneumoconiosis, but again, that's a lot of 

work, as you said.

So, the answer to the question, I think, 

is how we use presumptions. And presumptions are 

really intended not to be the final answer for 

everyone, but to sort of skim off the top the most 

slam-dunk cases where it's very clear and there's 

really no question that the exposure caused the 

disease.

But the engineers who don't make the 

presumption for asbestos are still, I think, able 

to be evaluated case by case by the industrial 

Hygienist and the CMCs. And I think that's the way 

that we're going to need to go since there are small 

numbers of mesotheliomas and small numbers of 
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engineers.

So, I don't see a problem here really 

because presumptions are just a part of this and 

I think it's going to be hard to have -- to set up 

a presumption for engineers asbestos exposure but 

that doesn't mean that engineers who have lung 

cancer or interstitial fibrosis or mesothelioma 

can't file for asbestos exposure, it'll just have 

to be determined case by case.

So, I think we need to be clear on how 

we're using presumptions, most importantly, that 

not making a presumption does not rule out that you 

have that disease exposure association.

So, that's my response to your 

question.

CHAIR MARKOWITZ: Okay, thank you.

Other comments or questions?

Yes, go ahead, Ms. Zaback.

MEMBER ZABACK: Okay, going back to the 

traveling people who go to different places on the 

sites, I know that Hanford has come up with one and 

sent it to the Department of Labor and it kind of 
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goes back to like D'Lanie was saying about how it's 

more difficult now that the claims examiners spread 

out the claims because they don't have -- if 

Jacksonville doesn't know about that situation 

that, oh, well, let's send this to the IH person 

because it's probably one of these people.

So, I think if we could request maybe 

from -- for the Department of Labor to request from 

the sites if they don't already have those types 

of employees and what they're called or us, you 

know, at least the big dogs, like you say.

And then, we could review those 

different titles and maybe come up with a list as 

a grand master list for everything so that they're 

called one thing on one -- or where one person calls 

it a Teamster and one person calls them a delivery 

driver or whatever.

But I just think that if Department of 

Labor would reach out to the sites and say, hey, 

you know, who are your employees who travel who 

don't have a home base at the V reactor or whatever. 

I don't know, I just think that would 
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be really good so that they're not just not sending 

them to the IH because they're based out of the 

downtown building and not based out of on the site.

CHAIR MARKOWITZ: Thank you.

Other comments or questions?

So, I guess the issue now is whether 

there's enough agreement on a recommendation that 

we could make that we want to not -- we want to draft 

something today and talk about it and vote on it 

or whether we want to postpone that while we resolve 

some other questions?

I think going to the sites and asking 

them to identify the site wide jobs is, in theory, 

a nice idea but I think an enormous task with 

tremendous variation in response which will take 

a long time.

I think if we were to ask the 

contractor, Paragon, that question, I think we'd 

get an answer sooner, although it'd still be a lot 

of terms that would need to be defined.

So, the question is whether we want to 

convert this to a research project or whether we 
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want to make a general recommendation and then let 

the details be handled by the Department?

So, yes, Dr. Van Dyke?

MEMBER VAN DYKE: So, Mike Van Dyke 

here.

I mean, I'm kind of thinking about 

something you said yesterday that these industrial 

hygienists that really do these exposures have a 

lot of that site wide knowledge and are able to kind 

of guide the person down the pathway to talking 

about their exposure.

Which a lot of people aren't capable of 

doing that.

And I keep hearing over and over, I 

hear, you know, institutional knowledge. I hear 

that, you know, site point of contacts are kind of 

no longer around.

So, we're getting to a point where that 

institutional knowledge is not there.

So, I do think that, you know, even if 

it's a general statement of, you know, for those 

claimants whose job description sounds like they 
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have site wide exposure that they need to go 

through, I mean, for which you can't show an

exposure, that they need to go through an IH 

interview to give everybody the same opportunity 

to get to that level.

CHAIR MARKOWITZ: Yes. So, why don't 

we do this -- Mr. Key?

MEMBER KEY: Yes, just for a point of 

clarification, Jim Key.

These contract IH people are not from 

the site and no historical knowledge of any of the 

sites, that bears also a problem.

CHAIR MARKOWITZ: Okay.

So, what we could do, if someone wanted 

to -- while we're conducting our business this 

morning, draft a short recommendation on this and 

then we can see whether there's enough consensus 

on it that we want to look at it and vote on it today. 

That's one way to proceed.

Or we can simply say, keep this on the 

agenda and at our next meeting come up with language 

of a recommendation that we might want to issue.
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So, if there's any volunteers that want 

to try that language this morning as we meet, that 

would be -- I think we'll have time to address it. 

But I think we should move on to additional issues.

So, the next is Board comments on draft 

changes. So, this is the issue we discussed 

yesterday that where a policy statement, some 

change in the program is under review and it's sent 

to us.

And one of our tasks is to review such 

documents and provide some feedback.

And the question is, and we heard that 

it's a complicated process whereby they draft with 

a lot of stops along the way, where they draft new 

policy issues, changes. And the question is, do 

we want to request that we receive those drafts 

earlier in the process with sufficient time that 

we can provide some feedback prior to issuance of 

that -- of the bulletin or whatever policy change 

is being described.

Or whether we want to just let it be as 

it is whereby we get those draft changes, you know, 
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a few weeks before they happen and then have --

then, we would have the opportunity afterwards to 

discuss them and provide feedback.

So, we can leave things as they are, 

which is that we get them within a few weeks before 

they're issued or we could recommend that they be 

given to us earlier in the process so that we have 

the opportunity to provide some input.

Dr. Cloeren?

MEMBER CLOEREN: Marianne Cloeren.

I thought there was another alternative 

which is to review the bulletin before the bulletin 

becomes policy. Because there's like more of a 

grace time, if you will, between the bulletin being 

issued and it going into the policy manual then.

CHAIR MARKOWITZ: So, yes, and so, a 

point of -- there's a question here, Mr. Vance. Do 

all changes -- are they subject to bulletins?

MR. VANCE: This is John Vance.

So, the procedure manual is our primary 

procedural document and that is -- that can be 

updated in a transmittal. And that communicates 
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edits and changes to the procedure manual in its 

entirety.

So, you remember when we had Version 6.0 

and 7.0 that we were talking about yesterday.

You know, in the interim between those 

formal publications of updates to the procedure 

manual, we will issue bulletins that describe 

changes to program procedure that are not 

incorporated at that point into the procedure 

manual.

So, the bulletin will be published at 

a later date when we get ready to do a full 

publication of the procedure manual. We will take 

that bulletin and incorporate that procedural 

guidance into the procedure manual as needed.

So, right now, we have two outstanding 

bulletins that are scheduled to be incorporated in 

the next edition of the procedural manual. We have 

the IH language that the Board has discussed and 

we also have the chronic silicosis presumption.

So, what you're suggesting is that for 

bulletins, you would have this interim period 
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between the publication of the bulletin and the 

update that goes into the procedure manual, that's 

certainly a viable option.

But just remember, that bulletin is 

putting in place a formal policy that's being, you 

know, implemented by the program. It's just not 

incorporated in the procedure manual at that time.

CHAIR MARKOWITZ: But are all policy 

changes put into bulletins before they go into the 

procedure manual?

MR. VANCE: No. So, we have --

bulletins are basically just interim things that 

we want to make sure get out to the staff and it's 

not a part of a formal publication in the procedure 

manual.

So, the procedure manual transmittal is 

communicating all of the updates that are occurring 

and they might not all be discussed or addressed 

in a prior bulletin. But certain, you know, 

usually it's a big topic kind of thing.

So, in other words, we just published 

7.0 and then three weeks later, we had the IH 
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language that we had agreed to change come out. 

And so, that didn't get -- it went through a 

different kind of clearance process because we 

didn't want to hold up 7.0 while we were 

deliberating on the IH language.

But once we had an agreement on the IH 

language, we issued the bulletin. So, there's a 

little bit of a differential there.

CHAIR MARKOWITZ: Okay, thank you.

So, what's the sense of this? Should 

we just let things be as they are? We get the draft 

changes soon before they're issued or do we want 

to request that we get them earlier in the process? 

Which is a little complicated because we have to 

get them, review them, we have to have a meeting 

scheduled. We have to vote on our comments.

Dr. Bowman?

MEMBER BOWMAN: So, I would actually --

I would lean towards keeping them as they are until 

we have potentially, if in the future, we have 

reason -- something occurs with like, we really 

needed to see this ahead of time.
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You know, but without such impetus, I 

think it might be better to allow DOL the ability 

to move as quickly as possible on changes that are 

important for the benefit of claimants.

And if we identify specific changes 

that we think may not have been the best choice, 

we can certainly advise them after the fact for a 

change. So, I would lean that way.

CHAIR MARKOWITZ: Okay.

Other thoughts on this? Any strong 

feelings that we should ask them to change the way 

they do it now?

Okay, fine. So, we'll let it be.

Next item, the SEM, the basis for 

omitting or reversing data in the SEM. So, this 

came up in the public comments yesterday.

It came up among Board members and I 

wanted to make some progress on this question 

whether there's additional information that we 

want to request.

It's clearly within the realm of the 

Board since we're required to pay attention to the 
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SEM.

Can someone articulate what the concern 

is?

MEMBER ZABACK: Lorna Zaback.

My concern is that, if they take 

something out, who's making that decision? If 

Department of Energy gave them documents that said 

A, B, C is in this thing, it seems like there just 

doesn't -- it seems not to be very transparent of 

justifying why you would take something out of the 

SEM.

And, you know, maybe that any time 

something's going to be taken out of the SEM, there 

could be some sort of information and 

justification.

I just -- it, you know, not just the fact 

that somebody did that, they did it and they -- it's 

going to impact multiple claimants. It just is.

So, it just doesn't make sense to me 

that it's just arbitrarily taken out and really not 

vetted through the sites who provided the 

information in the first place.
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CHAIR MARKOWITZ: Ms. Splett?

MEMBER SPLETT: Gail Splett.

As the person responsible at Hanford to 

provide the data on reactors to the -- to Paragon 

on all of that information to see that it is now 

been deleted without any verification from the 

agency that that information is correct is very 

disturbing.

So, for claimants who worked on site 

long-term, again, just showing one of our reactors 

that is currently cocooned, that none of the 

exposures for the past 450 years are reflected in 

the SEM is very disturbing.

If there's no -- even if they apply some 

dates to the data that there may not be any 

contamination currently or any exposures, but to 

show what happened historically.

So, there's got to be some, like Ms. 

Zaback indicated, there's got to be some 

accountability for where and why that information 

was deleted. Even if it's left in historically to 

show current -- there are no current exposures, but 
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historically, we know that they were there. It's 

very disturbing to see that data.

CHAIR MARKOWITZ: Mr. Key?

MEMBER KEY: Yes, Jim Key.

As Mr. Vance told us, the SEM is a living 

document and changes can be made.

As to my colleague questioning why 

changes were made with no notification or no 

justification printed, I, too, have, as I've spoked 

of yesterday, concerns about the enormous 

variations between three sites of one labor 

category and the chemical exposures involved there 

and the exclusion of the classification of labor, 

even on the 15.4 hearing loss revision that 

recently came out, the laborer is not even listed 

within that category.

And I don't know how we are going to 

submit sufficient evidence to the Department of 

Labor and, conversely, to Paragon to implement the 

changes and corrections that need to be made.

CHAIR MARKOWITZ: Ms. Whitten?

MEMBER WHITTEN: Diane Whitten.
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Well, as you know, we're aware now of 

the changes that they've made at Hanford as far as 

omitting or rearranging or deleting exposure 

information for the reactors.

And I mean, I haven't had time to go 

through the other facilities. And what about the

other sites? I mean, if it's happening at Hanford, 

it's probably happening complex wide.

So, we really need to get down to who 

made these decisions and why?

CHAIR MARKOWITZ: So, I guess I have a 

question for Mr. Vance or maybe it's a couple of 

questions. You wouldn't mind sitting in the 

non-hot seat?

MR. VANCE: The non-hot seat?

CHAIR MARKOWITZ: Yes.

Does the contractor keep a log of the 

changes they make in the SEM?

MR. VANCE: Yes, I'm fairly certain 

that Paragon would be able to answer questions. 

And what I wanted to clarify is that, the decisions 

to change something in the site exposure matrixes 
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are not being done in an arbitrary and capricious 

way.

There would be some sort of 

justification or rationale for what changes 

occurred.

So, at the Hanford reactors, we would 

have to ask Paragon what is the data that they were 

looking at that warranted a change to how they were 

presenting that data?

And that would be something that the 

Board should consider. If there are certain 

things that you're looking at and don't understand 

and I can't tell you what that might be, but what 

I can tell you is that they have researchers. They 

have professionals that know how to look at data 

and to extract and interpret that information.

And like I said yesterday, Paragon will 

modify data based on changing evidence. So, if 

they have something that is of more broad, you know, 

a more broad classification or characterization of 

exposure and then they get improved documentation 

that might warrant changing -- removing these 
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exposures and putting them somewhere else or 

eliminating them because some other document of 

more value or more weight contradicts what they 

were -- what they had before.

It's a matter of maybe asking the 

question, well, what are the criteria that Paragon 

utilizes to make these kinds of modifications and 

then maybe asking specifically, okay, for the 

reactors at Hanford, can you explain this?

And so, then you would see their process 

for evaluation or the procedure that they applied 

to do that and then what was their analysis that 

lead to this change that you're concerned about 

with regard to the reactors at Hanford.

I can tell you that we would just go to 

Paragon and ask them to provide the analysis for 

these kinds of questions. And I think that they'd 

be more than happy to explain themselves.

Then you could have the debate as to 

whether or not you agree with the assessment and 

the outcome of their determination to modify data 

in the site exposure matrixes.
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CHAIR MARKOWITZ: Well, thanks.

But as things stand now, are you aware 

of whether they document in writing the changes 

that they make? In particular, the omissions, the 

reversals in terms of exposures?

Are they required to describe what 

they're doing in writing that it would be 

accessible for review?

MR. VANCE: We would have to ask 

Paragon exactly what material that they have. I 

know that they maintain a pretty robust change 

control process. 

So, I'm not certain about exactly what 

they, you know, maintain as far as version controls 

but I do know that they do that. I don't know the 

scope of the information that's available. We 

would have to ask and get that information.

But I, again, I do want to reiterate, 

this is not being done in an arbitrary and 

capricious manner. There are reasons why things 

happen. I would have -- we would have to ask like, 

well, what is this because that's their 
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responsibility under the contract is to maintain 

this data and make sure it presents an accurate 

reflection of the documentation that they've 

obtained through the research.

CHAIR MARKOWITZ: Dr. Van Dyke?

MEMBER VAN DYKE: Mike Van Dyke.

So, I feel like there's a been a huge 

number of questions about the SEM and how this gets 

done.

And, you know, I don't think there's 

anybody present in the room that can answer those 

questions.

Is there a possibility that we could get 

Paragon -- a representative from Paragon here to 

tell us these things?

Because I think there's a lot of issues 

here.

MR. VANCE: If the Board would make 

that request, we could certainly consider that. 

We've made experts and, you know, subject matter 

experts available to the Board in the past.

I think we've also had interactions 
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with subcommittees on different things. So, if 

there would be a request, then that would be 

something the Department of Labor would consider.

CHAIR MARKOWITZ: Okay, thank you.

Ms. Zaback?

MEMBER ZABACK: Lorna Zaback.

My observation of how NIOSH does its 

work compared to the SEM, NIOSH is the contract --

they have a contractor who comes to the Board 

meetings when they're -- and tells when they're, 

you know, doing their reviews.

I know it's a different animal, but it's 

the same program. The emphasis on, you know, kind 

of being accountable, I feel like there's a missing 

piece of accountability for the contractor.

Thank you.

CHAIR MARKOWITZ: Ms. Whitten?

MEMBER WHITTEN: So, my concern is, 

when did this start? What -- with the Hanford 

reactors? And other facilities that we don't know 

about yet?

And how many claims have been denied 
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based on the fact that the claims examiners say, 

in Jacksonville or Cleveland, they just go off what 

the SEM says? So, they're going to deny, deny, 

which, you know, it costs the claimant time, costs 

the Department money, and how do we find out if, 

in fact, any of those claims have been denied 

because of this?

CHAIR MARKOWITZ: There must be some 

directions that Paragon's operating under. And 

they may be internal to the contractor, it may not 

be part of the contract language. And if it's 

internal to the contractor, who knows -- I don't 

know whether it's shared with DOL or how all that 

works.

But if there is, but we will make a 

request and if there is currently any instructions 

or language that directs how they operate, and I 

imagine there probably is, then the Board would 

profit by, I think, seeing that -- those 

instructions.

Let me ask the Board members, and Dr. 

Bowman, we'll get to you in one second, but I don't 
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want to forget this question.

If we request that we have the 

opportunity to interview and not necessarily in 

person, but, you know, remotely even, contractor 

personnel, is that something that all Board members 

would be interested in such that we would wait until 

the next Board meeting or is that something --

I'm seeing -- Dr. Friedman-Jimenez, I'm 

seeing people nod their heads here. Everybody's 

interested, so we're not going to do that as a 

subcommittee or working group, we would wait for 

--

MEMBER FRIEDMAN-JIMENEZ: I'm nodding 

my head.

CHAIR MARKOWITZ: Yes, I knew you were. 

I knew you were. I could see that.

Dr. Bowman, you had a comment?

MEMBER BOWMAN: Sorry, just a few 

things. This is Aaron Bowman.

One, I think getting Paragon here 

routinely at our meetings would be helpful as 

questions come up. Just to increase our 
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interaction.

But I was also going to comment that the 

other living document that the Department has, of 

course, is the procedural manual. And every time 

there's a change, there's a transmittal 

documenting those changes.

And if a similar transmittals could be 

made every time there's an SEM update, I think that 

would go a long way in terms of transparency for 

that process.

And, thirdly, I wonder if part of the 

challenge is, in fact, we are asking Paragon to do 

an almost impossible task for this SEM because as 

sites change and as there's, over time, where 

actual exposures to actual workers are different 

now than they were in the past, in the absence of 

any temporal information in the SEM makes it very 

difficult to how you make sure that the SEM is 

correct across this time frame.

And maybe as time is going on, there 

needs to be some consideration of a temporal 

indications in the SEM.
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CHAIR MARKOWITZ: Yes, Steve 

Markowitz.

From my understanding of the process 

and the available information that the risk of 

error and absence of data on -- including temporal 

information about potential exposures would be 

overwhelming.

And so, I -- and so, I don't think that's 

realistic. But personally, I mean, you know, we 

could ask DOL and the contractor if their view was 

different.

MEMBER BOWMAN: So, I guess where I was 

going to start, and I agree that the task of what 

I'm saying is I don't know what the nature of that 

would be.

But with this specific instance that 

has been brought up of the reactors that are no 

longer active that are now museums, just this very 

basic question of how has the SEM been handled when 

such a change occurs? And what are the choices 

that they're making?

Just to get guidance on how they make 
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decisions when the use of a site has such a dramatic 

change?

And just to see in that instance, give 

them -- this seems to be an instance that several 

members of the Board have recognized, that just 

giving -- asking a request of, can you please tell 

us your procedure for what you do when a site 

function changes so dramatically? How is that 

reflected in the SEM?

Maybe the answer to that question would 

help us.

CHAIR MARKOWITZ: Yes.

Dr. Vlahovich?

MEMBER VLAHOVICH: Kevin Vlahovich.

Maybe you can answer this question, 

maybe not.

But when a change is made, people who 

might have been approved in the past that doesn't 

get re-evaluated? I assume it doesn't.

MR. VANCE: No, we would not -- we would 

base our judgment on the evidence that was 

available at the time of the case was adjudicated.
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So, if we have approved the case based 

on data that has then changed or removed from site 

exposure matrixes, that is not going to force the 

program to go back and revisit that case.

We're always going to be working 

proactively based on the information that is 

available at the time of the case review.

MEMBER VLAHOVICH: If someone was 

denied because of information that was lacking but 

is now there and they would be approved if that had 

been, is that --

MR. VANCE: Not necessarily.

MEMBER VLAHOVICH: -- were 

re-evaluated?

MR. VANCE: No, that would be -- we're 

not going to automatically go back and determine 

what cases are impacted by the numerous changes 

that could be occurring on the site exposure 

matrixes. That would really fall to the 

individual responsibility of the claimant or their 

representative.

If they feel that there's new data or 
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information's available that warrant a change to 

their case.

What's nice about the program is that 

no case is final. You know, we can always go back 

and revisit a case based on our own prerogative or 

at a request of the claimant to revisit a previously 

denied case if they have sufficient new evidence 

that would warrant a new review in their case.

And that does happen quite frequently.

MEMBER VLAHOVICH: Thank you.

CHAIR MARKOWITZ: Ms. Splett?

MEMBER SPLETT: Gail Splett.

I agree with what Dr. Bowman's comments 

very much so. But I would like if Paragon does come 

before the Board to bring some very specific 

examples and not just talk about the process, but 

show what the data for one of the reactors and one 

of the gaseous diffusion plants, maybe four or five 

facilities so we can see what -- how the data 

changed on a facility over time and how that might 

have impacted claims that are being evaluated 

during that period of time.
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CHAIR MARKOWITZ: Oh, Mr. Key?

MEMBER KEY: Yes, Jim Key.

You know, this whole discussion and 

revelation of Paragon operating out here on their 

own with no notifications to anyone, I don't know 

who they work for directly. It may be the 

Department of Labor.

But as Diane mentioned, the CEs are 

taking this SEM on a claim and using that as the 

holy grail. We have worker health protection 

program members at each site who assist claimants 

in getting their process started. And they use the 

SEM.

So, if there's going to be changes to 

this SEM, there should be changes, one, 

notifications sent out including to this Board of

proposed changes. 

Two, we've all sat here and recited the 

diminishing historical knowledge at these 

facilities. If that information is in the SEM 

since the creation of it, leave it there. If you 

want to make a change in the SEM, then we need to 
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direct Paragon to put a date line and whatever 

changes below that date line, but do not take that 

historical information out of the SEM.

CHAIR MARKOWITZ: Okay, we need a 

volunteer Board member to draft the information 

request regarding these issues in SEM. That draft 

would be circulated among Board members and so 

there'd be opportunity to change the draft to make 

sure it reflects everybody's concerns in the room.

So, if there are any volunteers at this 

moment, we have -- yes, we have a group, fantastic. 

And that group consists of Ms. Splett, Ms. Zaback, 

Ms. Whitten, okay. Terrific.

Okay, so, you'll put together a written 

information request and we'll figure out a time 

line. And then, we'll send it around the group and 

settle on it.

Dr. Bowman?

MEMBER BOWMAN: Just to clarify, are 

you saying that we would -- this would go to vote 

today or are you saying this is the work that we'll 

do over some time?
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CHAIR MARKOWITZ: Oh no, it won't 

happen today.

MEMBER BOWMAN: Okay.

CHAIR MARKOWITZ: Remind me how 

quickly we get a transcript of this meeting? 

Because they may want to look at the various 

comments that have come up.

(Simultaneous speaking.)

CHAIR MARKOWITZ: Okay, okay. So, 

just so you know, if you want to look at what people 

said, but there's, you know, you could certainly 

draft it before then.

MR. VANCE: And just an additional 

question.

So, this will be an information 

request?

CHAIR MARKOWITZ: Correct.

MR. VANCE: Therefore will not require 

a full vote. So, we can do this ahead of the next 

full meeting?

CHAIR MARKOWITZ: Correct, correct.

But we do want to make sure that it 
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reflects everybody's concerns. Okay, great.

Okay, thank you, Mr. Vance.

But well, we have had additional 

questions on other things.

MR. VANCE: Yes, I'll stay here for a 

moment.

CHAIR MARKOWITZ: Okay.

MEMBER FRIEDMAN-JIMENEZ: George 

Friedman-Jimenez.

I'd like to ask a question.

CHAIR MARKOWITZ: Sure.

MEMBER FRIEDMAN-JIMENEZ: I agree 

completely with Dr. Bowman's concern about the need 

for a time dimension in the SEM. But I also can 

understand the concern about a large amount of 

error that would be unavoidable in adding that 

information to the SEM.

But the reality is that there needs to 

be some kind of time consideration. How is the 

time dimension currently being addressed? Is it 

done by the IH on a case by case basis? Or is it 

done by presumption using the same SEM information 
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for all claimants without regard for what years 

they worked in that facility?

How is it currently being addressed?

CHAIR MARKOWITZ: I think that's a 

question for Mr. Vance.

MR. VANCE: That's heading my way. 

This is John Vance.

So, as we discussed the site exposure 

matrixes is a static reflection of all the 

information and there is no temporal data.

And as you can imagine trying to do that 

is a major undertaking for the hundreds of 

facilities and the history of the nuclear weapons 

program starting in the '40s all the way up to the 

present.

So, you're talking about a very 

laborious undertaking.

So, the way that the program addresses 

that is that we identify the targeted toxins that 

we think are of a concern. There is no temporal 

information that's provided to the industrial 

hygienist when they do their characterization.
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So then, it is left to the industrial 

Hygienist to evaluate the temporal data available 

with regard to when the employee worked. They will 

consider the circumstances of the work processes 

involved. They will, you know, apply their 

judgment based on their understanding of the 

facility, the different toxins that may have been 

worked with, the proximity that this individual may 

have been working around something. And they're 

going to use their best judgment.

For my work with the industrial hygiene 

team, they're going to look at this like they 

reasonably should which is that, as you go back in 

time, the threat to human health is much greater. 

There were not as significant occupational safety 

and health parameters in place.

There's always going to be arguments 

about whether that has ever been the case.

But as you get into more recent times, 

they're going to say, hey, we really want to see 

something more definitive about monitoring that 

took somebody over a particular threshold that we 
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feel is a health hazard.

And so, that's how the judgment is made. 

It's their judgment looking at their holistic 

understanding of the entire process. 

I know that's kind of a very broad 

answer, but the industrial hygienists have to make 

that judgment based on what they understand from 

their general knowledge of the chronology of atomic 

weapons production at whatever site this 

individual worked at or multiple sites.

So, it is a highly -- it's highly 

dependent on the judgment of the industrial 

hygienists looking at it and their understanding 

of all these different variables. That's how it 

is handled by the program.

MEMBER FRIEDMAN-JIMENEZ: Okay, thank 

you. That clarifies a lot.

So, essentially, it's based on a 

judgment that's done case by case. And so, that 

precludes the possibility of automating this 

process in a way that can be done by CE or computer.

So, that raises the question that I was 
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getting at. Is there a way to compile these 

repeated determinations by the IHs which 

essentially involve the judgment as to how high or 

low the exposure levels were, whether the substance 

was present or not in a given facility at a given 

year for a given job title.

Can that -- can there be a library 

compiled of all of these IH determinations that 

then could be used for future determinations so 

there wouldn't have to redo the assessment every 

time and re-judge the judgment for every individual 

case?

MR. VANCE: Well, this is John Vance 

again.

You know, the answer to that question 

is that, you know, the Department of Labor is always 

recognized that the complexity and the unique 

features of every single one of these cases makes 

it very difficult to generalize from one situation 

to the next.

While anything is possible with regard 

to the collection and inventorying of information 
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that our industrial hygienists do, the question is, 

it's value when you're trying to generalize from 

one scenario to something that is totally unique 

based on the work history of an individual.

Two individuals working at the same 

facility in the same location doing different jobs 

could have a different profile. So, it's very 

difficult for, I think, our industrial hygienists 

to basically say, here's how it would work for 

anybody working these conditions. You know, it's 

just very difficult.

So, the Department of Labor is always 

just basically approached it on a case by case basis 

looking at the individual variables and making the 

best judgment it can based on the features of that 

individual's work history and the data that is 

available.

So, it's not always the site exposure 

matrixes that is the relying, you know, is what is 

being relied on to make these judgments.

The example that I can give you where 

we don't really utilize the site exposure matrixes 
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is where we have individual claimant physicians 

that are identifying toxins of a concern from a 

causation standpoint that really don't have any 

connection to the site exposure matrixes or they're 

not validated in the site exposure matrixes yet 

because the doctor is talking about this toxin of 

concern or toxic substance of concern, we would 

send that directly to an industrial Hygienist and 

say, well, can you help us understand the 

characterization of this employee's exposure. 

And then, assess that based on how the doctor's 

characterizing their understanding and 

interpretation of the causality however the 

doctor's, you know, describing it to make sure that 

the doctor has an accurate understanding of that 

exposure.

So, bottom line is, it's very difficult 

to create a generalization on exposures like that.

CHAIR MARKOWITZ: Okay.

MEMBER FRIEDMAN-JIMENEZ: Great, 

thank you.

So, that reinforces our view that this 
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really depends critically on industrial hygiene 

evaluation case by case on the occupational history 

and on the role of judgment in the causation -- in 

the exposure assessment and the causation 

decisions.

So, you know, I think we've all sort of 

felt that, but I think this clarifies that more. 

Thanks.

CHAIR MARKOWITZ: Okay. Any final 

comments on this issue since we have a plan and 

additional agenda items?

Okay, then let's move on.

Next is the industrial hygiene exposure 

characterization.

And if you go to slide 25, so this was 

subject of the bulletin 23-02 I think it is that 

was issued October 24, 2022, about five weeks ago.

And so, I've prepared, just to 

facilitate the conversation, I've prepared some 

slides.

And first, just to look at that what 

change is being made. If you go to the next slide?
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So, this is the procedure manual 7.0 as 

it exists now. And we're not talking about 

comparison of exposures to regulatory levels. 

That's not the topic, that's been settled.

We're talking now about the procedure 

manual instructions really to the industrial 

hygienist as to how they characterize exposure.

And so, up until five weeks ago, it was 

that the exposure -- the IH would determine the 

exposure level and the choices were significant, 

high, and it gives some examples, significant 

moderate.

And if you go to the next slide, there's 

the significant low, just to -- all right, 

significant low and incidental exposure.

And incidental exposure is exposure in 

passing. So, it's really just an obvious 

inconsequential exposure. It should be pretty 

easy to identify the incidental exposure.

So, a couple comments. So, you have 

basically you have significant exposures and you 

have incidental exposures. And the significance 
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divided low, moderate, high.

The -- I just want to point out 

something that Donna Hand, one of the public 

commenters has repeatedly said which that in the 

statutory language, at least as likely as not the 

exposure at DOE was a significant factor to 

aggravate cause or contribute.

The significant in that language, the 

word significant applies to factor it doesn't apply 

to exposure. So, just sort of keep that in your 

mind that that is not rooted, at least to my 

knowledge, in the statute. There aren't specific 

instructions in the statute about significance 

other than it's a significant factor which, 

frankly, is a little hard to pin down, I would say.

But regardless, so that's in the -- this 

is what's in the procedure manual.

If you go to the next slide, this is in 

the bulletin that's been issued.

And the new framework is -- would 

continue the significant high, moderate, low, 

continue the incidental and then, create a new tier 
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of exposure that's more than incidental but not 

significant.

And so, you say, well, what does that 

mean? 

If we go to the next slide?

And here, I've just summarized from the 

bulletin with key words basically how that's 

defined which is that the worker may have had 

exposure.

There's no indication of violation of 

exposure levels or an incident. There's no 

substantive evidence of significant exposure in 

the record and/or there's use of PPE.

Now, not all four of these elements are 

required. These are elements to be considered in 

the judgment about this category of more than 

incidental but not significant.

And so, I thought this was -- this is 

important, possibly important change and I thought 

that the Board should probably take a look at this 

and discuss it some.

I have to say, just to -- while you're 
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thinking about things is that, two things. One is 

I always -- what happens to this IH report? Well, 

it goes to the CMC. It goes to the claims examiner 

and it may not end up at the CMC and the claims 

examiner then uses it to make a determination.

Or it goes to the CMC. And then, the 

question is, how's the doctor looking at this 

determination and making a decision?

So, I'm not sure whose card came up 

first, but we'll just go alphabetically.

Dr. Van Dyke? Reverse alphabetically, 

excuse me.

MEMBER VAN DYKE: Yes, I was going to 

say, I've never been first in alphabetical order.

CHAIR MARKOWITZ: Well, we're so glad 

that you're now first.

MEMBER VAN DYKE: Mike Van Dyke here.

So, thinking back to our 

recommendation, our recommendation was really to 

get rid of the language around, you know, no 

evidence that exposures exceed regulatory 

thresholds which was, you know, imprecise. We 
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weren't sure what it meant. And we felt like it 

influenced the CMCs.

I feel like, really, what happened here 

was, you know, we added this new category to replace 

that no evidence that exposures exceed regulatory 

levels.

It's really hard for me to imagine what 

this new category means in terms of why can't you 

just call that low?

Because that's really what it means to 

me. So, I think this just adds more confusion and 

it gives more -- less information to the CMC than 

is necessary.

So, I don't like this new category. 

But I did hear Mr. Vance talked about there were 

lots of discussions about this, long discussions 

about this. I mean, you know, if he wants to fill 

us in on that, that would be great, too.

CHAIR MARKOWITZ: Sure, let's just 

take another comment from Dr. Cloeren before we 

move to Mr. Vance.

MEMBER CLOEREN: Marianne Cloeren.
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I'm concerned that this category will 

be used for all the cases for which there's no 

records. Because like number three, no 

substantive evidence of significant exposure. If 

you don't have any monitoring records, that would 

apply.

And if there's no indication of 

violation or incident, that would apply.

If you make an assumption that people 

were wearing PPE because whatever year, I just --

I worry that this category will be used for like 

a majority of cases for which there's just not any 

industrial hygiene kind of records.

CHAIR MARKOWITZ: So, Mr. Vance, if you 

want to just fill us in a little bit on the thinking 

behind this -- the creation of this new category?

MR. VANCE: All right. Certainly, 

this is John Vance.

So, I'm going to tell you my fun, honest 

story about this.

So, you know, I work with our industrial 

hygienists. You know, I certainly get lots of 
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viewpoints and I have to sort of figure out and 

weigh and balance how all of that input comes 

together.

And this is always going to be a 

question of interpretation by different experts.

So, this question really revolves 

around the question of how do you characterize 

individuals that were operating sort of in the 

later years of this -- of the DOE complex?

Our industrial hygiene team has always 

tried to provide as claimant oriented an assessment 

of exposure as possible. But they also have to 

operate within the reality of their view of 

industrial hygiene generally. Okay?

And so, when they're looking at how DOE 

has performed from an enforcement kind of 

perspective with regard to how well they are 

tracking and identifying threats that existed 

within the complex.

Our industrial hygienists are going to 

look at it and say, you know, it's very hard for 

them to say, in the absence of data, it's very hard 
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for them to say as an industrial hygienist, it's 

reasonable for me to just assume that there was some 

sort of dangerous level of exposure when there's 

no indication of that where their knowledge of how 

the DOE was managing occupational safety and health 

in these later years would have been, if there was 

a problem, we would probably see it in the evidence.

Now, that's not saying that the 

industrial hygienists can look at something and say 

the way that this individual's describing that in 

the absence of any monitoring data still leads me 

to conclude there was a significant exposure. 

That can still occur.

But what the industrial hygienists are 

-- we were trying to figure out here is how do you 

describe somebody that may have been working in a 

situation where they were exposed to, let's say, 

let's say I'm an asbestos worker in 2010, you know, 

I'm going to be contacting asbestos. But it's 

going to be done under really strict conditions.

And so, the industrial hygienists are 

going to say, show me the evidence that there was 
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an actual threat here. This person, you know, when 

they're doing abatement of asbestos, there's 

generally going to be really stringent controls, 

especially in the later years.

So, how do you describe that? Well, 

the industrial hygienists had to -- we had to come 

up with some sort of way to describe that. The 

industrial hygienist can't say it's incidental 

because incidental means that you're not really 

working with something routinely.

It's basically, hey, I'm walking 

through a casino and I'm leaving the casino and I'm 

walking through a smoky environment. I'm here, 

this week, that's one level of exposure. I'm not 

sitting at a table dealing cards. That's a little 

bit different. I'm in that environment all day 

long.

Now, whether you want to characterize 

that as low, high, or medium, that's a significant 

exposure.

The industrial hygienists, when we had 

this conversation, it came down to, I can't say it's 
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really incidental but I can't really say it's 

significant either because there would be evidence 

that this person was in a situation where there's 

a threat to their health from an exposure.

So, what you end up with is this dynamic 

where they're saying, it's not really incidental, 

but it's not really significant because I don't see 

evidence where there would have been a threat for 

inhalation, skin contact, or ingestion of a 

material in a way that would threaten that person's 

health.

Now, if there's something in the case 

file that would suggest that it did happen, and we 

do see that, that's how the industrial hygienists 

would characterize that.

The other big thing is, we struggled for 

quite a bit trying to figure out, well, how do you 

characterize this level of exposure?

We floated lots of different ideas. 

The one thing that you need to remember is that with 

our bifurcation of incidental and significant, you 

can't just create a fourth categorization of 
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significant because that then triggers your 

inclusion of all of these presumptive standards 

regardless of what that level of exposure was.

So, in other words, if you say 

significant really, really, really, really low, 

all of our presumptive standards say that you had 

to have a significant exposure in order to trigger 

that presumption. Does that mean that everybody 

that was in this category that you then now say 

significant exposure to really, really, really, 

really low should qualify for that presumption? 

Okay? So, that's one thing that you have to keep 

in mind.

So, we went back and forth about how to 

do this. And so, the solution, whether you agree 

or not, is this characterization where we're not 

going to say it's incidental and we're not going 

to say it's significant. So, it's sort of in 

between those two.

It is then left up to the doctor to 

decide how they want to interpret that. Our role 

from an industrial hygiene standpoint as far as our 
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responsibility is to give the doctor that's going 

to evaluate causation the most accurate data that 

we have.

In the absence of any monitoring data, 

the only information that we have is going to be 

the professional judgment of an industrial 

hygienist looking at this.

I would be more than welcome to consider 

any input from the Board on how to make this work 

better. I think everybody could recognize, and I 

think that we do, that this is a challenge.

And saying it's not good or that it's 

a problem, I think is very easy. Offer me 

something that explains how would you like to do 

this? You cannot look at everybody that was 

working -- and our general viewpoint is after the 

1990s is, okay, show me the evidence that there's 

something there either in monitoring records, 

health violations, or some information that the 

claimant has provided that allows me to say, you 

were significantly exposed and it's a health hazard 

that encountered that.
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We can't just assume in the absence of 

data that, oh, you were blindly exposed to 

significant amounts of whatever the toxic 

substance is.

So, it's a very -- it's a balancing act 

to try to deal with that reality of what we know. 

And I do want to make it very clear, the industrial 

hygienists are not suggesting that everything was 

awesome at these sites after the mid-1990s, that 

everybody was perfectly safe doing whatever it was 

that they were doing at these sites with these 

toxins.

There are recognized hazards that 

existed where there were violations that occurred. 

And our industrial hygienists, when they see that, 

when they're seeing interventions that are 

occurring with self-reported exposures, because 

that triggered a lot of these investigations by 

industrial hygienists at the sites.

They're going to see that and they're 

going to say, well, this seems like there is 

something that's going on here that the site was 
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concerned about. So, they would then assign some 

significant level of exposure.

It's just that after this period of 

time, they really want to see the proof in the 

pudding that there's something there that they have 

to characterize as being significant.

So, that's the challenge we're faced 

with and I think the Board has had many discussions 

about this in the past. And this, you know, within 

the regulatory limits, I think the Department of 

Labor agreed that that was very nefarious.

Now, whether this is an improvement, I 

hope that it is. But at the same time, I think 

there are some weaknesses that still exist.

So, I think the Department of Labor 

would appreciate any input on this one that can be 

provided.

CHAIR MARKOWITZ: Thanks.

I have a particular question about the 

use of the word significant attached to high, low, 

moderate, and low because I'd always wondered why 

it's there, the word significant.
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And you're saying it needs to be there 

because it triggers presumptions elsewhere in the 

procedure manual.

MR. VANCE: Well, I think that that's 

how, you know, in the legacy of how our procedures 

developed over time, the judgment was, there had 

to be some sort of categorization of exposure and 

our industrial hygienists devised this.

I mean, thinking if you look at 

different kinds of industrial hygiene processes, 

they do use these similar kinds of language in 

characterizing exposure.

So, this was the application of 

certified industrial hygienists working for the 

Department and saying, how do we characterize this 

exposure?

Once we had that in place, we began 

building out on these presumptions. And the 

presumptions merely state, there has to be some 

significant exposure. It doesn't say significant 

low, moderate, or high, it just that you fall in 

that significant category.
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Once you have that triggered, then this 

presumption would allow us to accept the case. By 

accepting the case, you're allowing for a 

presumption that whatever the exposure was, is a 

significant factor and contributing causing or 

aggravating a disease.

Is it fair to say that for somebody that 

was working in a relatively later period of time 

where we have no real evidence of a significant 

exposure? But then, you're going to assume that 

they should qualify for that presumption.

So, that's the dynamic that must be 

considered by the Board. How do you do that? So, 

you can't necessarily say, significant but safe or, 

you know, we struggled with the wording for this. 

So, it's a challenge.

CHAIR MARKOWITZ: But, yes, I mean the 

presumptions are good. So, if significant gets 

you into presumptions, then that's fine to keep the 

word significant.

I have a kind of a simple approach to 

this. Sometimes in instances like this I think 
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about, actually, how do we do it in occupational 

medicine when we're faced -- we're interviewing 

somebody. We're trying to make a decision on an 

individual person.

And, you know, if they don't -- if 

they're unlikely to have exposure or they had no 

exposure, then there's not a problem. Their 

disease wasn't caused by it. If it's unlikely or 

it didn't occur.

Actually, those are two -- those are the 

two categories combined. Because see, the problem 

is the incidental is too narrow because it conveys 

that it's only in passing, it's super transient.

No, there are people who do work which 

is not transient, but which an exposure is 

unlikely. And to me, I don't think you need to make 

a distinction between those two groups.

So, I personally think high, moderate, 

low, and unlikely or none is a more simple way to 

approach it and I think reflects actually the way 

we think about it.

But Ms. Whitten?
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MEMBER WHITTEN: Sorry, Diane Whitten.

I was just reading about the program, 

the energy program. Part E of the program was 

enacted for any occupational illness that are 

causally linked to toxic exposures.

I think this is just getting too deep.

CHAIR MARKOWITZ: Other comments?

Yes, Dr. Bowman?

MEMBER BOWMAN: Yes, this is Aaron 

Bowman.

Steven, I liked what you were staying 

and you referred to the word unlikely. And then, 

and I look at this phrasing and I worry it may come 

across to a medical -- at the CMC as a definitive 

statement of not significant.

And I'm just wondering if a slight 

change to more than incidental unlikely 

significant might be a more accurate reflection of 

what you were describing the IH is concerned with, 

that they cannot call it incidental but they also 

cannot call it significant low.

And it seems to me that they are -- they 
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do not have certainty that it's not significant, 

they don't know.

So, why not unlikely significant? And 

I think that might not -- that might avoid this 

issue of portraying a definitive not significant.

MR. VANCE: This is John Vance.

I would agree that there's lots of 

different ways to approach it. Keeping in mind 

that it's up to a physician ultimately to determine 

how to interpret that data.

And I can tell you right now, we do have 

physicians that would look at an individual as been 

characterized using this new language for later 

years. And I've seen physicians interpret that to 

say, well, you're not saying they were not exposed 

to any level of exposure to this particular toxin 

could certainly be a significant contributing 

factor in that physician's mind to a particular 

claimed illness.

So, I mean, you're still going to have 

that reality. But other doctors could look at it 

and say, it's very unlikely in my mind that that 
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was a significant -- it could have been an issue, 

but it's not going to be a significant factor.

So, it's a matter of how do you 

accurately characterize it to give that doctor a 

really accurate understanding of the exposure in 

the absence of any definitive monitoring data?

The other big feature that we're trying 

to promote in these new industrial hygienists 

reports is more customized consideration of input 

that the claimant provides in the occupational 

history questionnaire simply because you don't 

have the data in the monitoring records or in the 

document acquisition request you get from the 

Department of Energy.

It could very well be that the IH sees 

something in the testimony of the employee that 

aligns with other information. It could be like, 

yes, this person is describing something that was 

occurring and they were not properly certified to 

be wearing this kind of PPE or what have you. And 

the certifications show that there was problems 

with that.
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Well then, that could be an indication 

to the industrial hygienist to characterize it at 

a higher level.

So, it's very -- it's a very hard, hard 

challenge and I think that there's lots of 

different ways to approach it. And we struggled 

with lots of different approaches and this is what 

we gelled around.

But it -- keep in mind, it's always 

going to be up to the physician to determine that. 

So, you've got to make sure that you're 

communicating in a way that the doctor can sort of 

interpret. And I think that was the concern within 

regulatory limits. Because that was hard to 

define even though we did make an attempt at that.

MEMBER FRIEDMAN-JIMENEZ: Hi, this is 

George Friedman-Jimenez.

I think this word significant is one of 

the most misunderstood and abused words in the 

scientific lexicon.

Over 40 years of arguments, fights in 

the epidemiology and statistics literature, it 
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still hasn't settled exactly how we should or 

shouldn't use the word significant.

A lot of journals have banned the use 

of the word significant in the statistical sense 

for scientific publications.

But I think what we need is a formal 

definition of the word significant. If we're 

going to need to use that word, we need to define 

it formally.

It clearly carries a lot of baggage but 

it implies some degree of judgment on causation. 

It implies some degree of magnitude, measurement 

of magnitude. And I think we need to formally 

define it.

And I would think this would be a good 

thing for the Board to work on. And, Steve, 

wondering if you would like to set up a small 

working group on this.

I think defining the word significant 

is actually a pretty important and difficult task 

that the Board could help out with.

CHAIR MARKOWITZ: Yes, Dr. Bowman?
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MEMBER BOWMAN: Just to comment, John, 

is there already a definition?

MR. VANCE: I think that if you look at 

the bulletin, we made a passing attempt at trying 

to explain how we were defining it for the 

application in this program.

So, I agree with George that that would 

probably be something to take a look at to determine 

whether or not that language is appropriate for the 

procedure manual and appropriate for the program.

So, yes, significant has a lot of 

different meanings to a lot of different people. 

But we need to come up with a standard that explains 

the characterization of exposure.

This is the viewpoint of our industrial 

hygienists that this is as appropriate as we can 

apply with regard to the application in this 

program.

Now, are there other ways to interpret 

that or characterize exposure in industrial 

hygiene? I'm certainly sure there are. I've seen 

lots of different ways to do that. It's just a 
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matter of how do you do that in the context of this 

program with the legacy that exists with regard to 

our significant exposure presumptions.

That caused us to have a lot of problems 

with how we would do this. Because as soon as we 

-- we didn't want to loop everybody into these 

presumptions just because they had -- you've got 

that bifurcation exists.

And so, yes, I think that would be well 

within the Board's purview to take a look at how 

to best define that and apply it for the program.

CHAIR MARKOWITZ: Dr. Van Dyke?

MEMBER VAN DYKE: Mike Van Dyke.

You know, I understand you have legal 

terms and scientific terms and we're trying to mash 

it all together and use that word significant which 

is it's tough to do.

And really, this word really 

incorporates, you know, frequency, intensity, all 

sorts of concepts into one word. And I think 

that's the difficulty.

I mean, I would be happy to be on a work 
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group to talk more about that. I think we do need 

to continue that.

CHAIR MARKOWITZ: Personally, I think 

when this gets to the CMC, they're going to take 

the first three categories and say that it may have 

been some exposure and the second that the final 

fourth and fifth categories as there was no 

exposure of concern.

And I suppose there may be the 

occasional physician that Mr. Vance mentioned that 

is going to view any exposure or potential for 

exposure as having meaning.

So, the question is, is there any harm 

in this new categorization? Is there any harm, 

potential harm for the claimant?

Dr. Cloeren?

MEMBER CLOEREN: This is Marianne 

Cloeren.

I think the way the descriptors are, it 

could be used for a lot of claims where there's not 

any kind of records. Like we might see this 

category instead of some of the significant ones 
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where there's not records. That would be my 

concern.

CHAIR MARKOWITZ: Yes, and that's an 

important concern, actually -- Steve Markowitz --

because I would say for many jobs, there are 

probably aren't records, meaning industrial 

hygiene data or some incident or what have you.

MEMBER FRIEDMAN-JIMENEZ: This is 

George Friedman-Jimenez.

I think the danger in this new category 

is that it still plays into the possibility of 

having this effortless term to dismiss substantial 

risk or, you know, causation at the level of the 

presumptions.

And I think it's too loosely defined and 

too vague. I think we need to have a more clear 

definition so that we can rationally and 

convincingly dismiss causation in the cases where 

it's really not appropriate and confirm causation 

in the cases where it is and be more clear about 

it.

But I don't think it solves the problem 
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of vagueness or looseness that the previous 

terminology of no evidence that there was a 

significant exposure.

I don't think it really moves the ball 

forward on that. So, I think we're still left with 

the same problem that it's too easy to dismiss 

causation in a setting where there's not a lot of 

information available about exposure and that's a 

fundamental problem.

And I think we need to be more explicit 

and more clear about that, which is why I think we 

should have a more formal definition of the word 

significant.

CHAIR MARKOWITZ: Yes, Steve 

Markowitz.

I don't disagree, but what we're 

looking at was DOL's diligent attempt to define 

what they mean for this category with some degree 

of specificity.

So, if we think it's not right, then 

we're going to have to come up -- it would be helpful 

if were to come up, not necessarily this morning, 
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with improved language.

Dr. Van Dyke?

MEMBER VAN DYKE: Mike Van Dyke.

I think it's improved. I think it's 

less biased terminology. So, I think it's a move 

in a very small distance in the right direction.

CHAIR MARKOWITZ: No, why do you think 

it's an improvement?

MEMBER VAN DYKE: I think it because 

the terminology does not exceed regulatory 

standards that I think is biased.

CHAIR MARKOWITZ: But that's gone.

MEMBER VAN DYKE: No, no, that's gone.

CHAIR MARKOWITZ: Right, that's gone.

MEMBER VAN DYKE: So, I think that 

removing that terminology moves this in the right 

direction just a little bit. We're still not free 

of problems, but I think it moves -- it's not 

harmful at this point. Or I would say less harmful 

than the previous language. How about that?

CHAIR MARKOWITZ: But the question is 

whether the new change creates any harm? That's 
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--

MEMBER VAN DYKE: No.

CHAIR MARKOWITZ: Okay.

MEMBER VAN DYKE: I don't think so. Or 

I would say, actually, let me rephrase.

CHAIR MARKOWITZ: Insignificant.

MEMBER VAN DYKE: No, it doesn't create 

significant harm. No, no, I would say that, you 

know, it creates less harm than previous language.

CHAIR MARKOWITZ: That's one thing --

MR. VANCE: Dr. Van Dyke, you can join 

me in all of our policy discussions. That's going 

to be great.

CHAIR MARKOWITZ: Dr. Cloeren?

MEMBER CLOEREN: Marianne Cloeren 

here.

I guess what would be the instructions 

to the industrial hygienists to choose one, two, 

or three over this choice in the setting where there 

are no records?

CHAIR MARKOWITZ: So, I think -- this 

is Steve Markowitz.
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I think we should, given the time, move 

this into a working group. Because it's possible 

we could fashion some language that might represent 

an improvement over this latest change in the 

industrial hygiene instructions.

I don't know if we can, but it's 

possible. There appears to be interest in the 

Board to attempt to do that. We're not going to 

do that today. But it strikes me as something -

Who would like to work on that actually? 

Dr. Cloeren?

MEMBER FRIEDMAN-JIMENEZ: This is 

George.

CHAIR MARKOWITZ: Dr. 

Friedman-Jimenez, I know he's raised his hand. I 

can see it, I can see it. It's his right hand, too. 

And Dr. Van Dyke, okay. And Dr. Mikulski, okay, 

good, these will be long discussions, that's great.

Any -- so having --

(Simultaneous speaking.)

CHAIR MARKOWITZ: Having that as a 

plan, we can move on or any final comments? Or Dr. 
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Bowman, you look like you want to say something.

MEMBER BOWMAN: Sorry, I was going to 

volunteer but I don't want there to be too many 

hands in the soup making. So, I can maybe put me 

on as a back up.

CHAIR MARKOWITZ: I don't think you 

have to worry about too many hands. I think it's 

a very important issue actually and the more --

you've got a number of medical perspectives, but 

the OSHA perspective is also relevant here.

MEMBER BOWMAN: I'm happy to do it.

CHAIR MARKOWITZ: Okay, great.

If you can go back to the slide we were 

working from which was our agenda. I think the 

next thing was -- yes.

MEMBER BOWMAN: Before it gets too 

late, you had asked for on the site, not this one, 

on the second objective that site wide job titles, 

you had asked if someone might pen something for 

it. I have penned something, if we want to have 

time to discuss it or not.

CHAIR MARKOWITZ: Okay.
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MEMBER BOWMAN: But I'll let you decide 

whether we do that or not.

CHAIR MARKOWITZ: Okay, let's -- well, 

let's cover the other things and then we'll come 

back to that.

MR. VANCE: And this is John Vance.

I think I'm going to have to bow out, 

but I just wanted to say thank you again for all 

the work you guys are doing.

Any IH input would be very welcome, just 

based on my deliberations so, good luck. And I 

hope that you can find a solution to that one.

But again, I do want to say thank you. 

I know that this work is very important and I just 

want to reiterate what we said yesterday. You 

know, we have a lot of accomplishments that have 

occurred between the Department of Labor and the 

Board. We'll continue to do that.

Carrie will, because we're leaving, but 

if anything comes up where we can provide any 

information, Carrie's going to write that down and 

we will be very happy to supply that information.
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So, thank you and continue doing the 

good work of the Board.

Thank you.

CHAIR MARKOWITZ: Yes, well, thank you 

for being here because getting information, 

immediate feedback, it is extremely useful.

And after Mr. Vance leaves the room, 

that's when we're going to request a thousand cases 

to review. Because we don't want him to have a 

heart attack, so we're going to wait for that.

And thank -- Ms. Pond, thank you also 

very much for coming.

Okay, so, there is a public comment I 

want to discuss. But I'm also cognizant of time. 

If we were to go a few minutes past 11:00, is that 

a problem for anybody in the room?

(Simultaneous speaking.)

CHAIR MARKOWITZ: Okay, okay, okay, 

fine. So, we will just work quickly which is fine.

So, let's discuss limited case review 

near-term. So, you know, the previous Board was 

given 20 or 24 cases to look at at our request.
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And we discussed a certain number of 

them, but we did not discuss all of them. Each 

Board member I think had something like three or 

four to look at.

And we -- there were a mix of different 

kinds of cases, mostly denied. There were a few 

impairment mixed in.

And I thought it would be useful, and 

there -- it's a lot of work for the Department to 

prepare new cases because it is.

And so, I thought it would be useful for 

this Board to use those same cases to look at, in 

part for the -- for new Board members to familiarize 

yourselves with claims. Because we're preparing, 

when we get contract support, to look at a larger 

number of claims with very specific questions that 

we want to -- that we're going to have to develop.

And so, it's easy enough. I actually, 

for prior Board members, you should still have the 

CD with the cases on them. You may not have the 

password but you should still have the CD. I don't 

think that we ever -- were asked to turn them back. 
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So, all the better, good thinking, Carrie.

But the four Board members would need 

a copy.

And so, the question whether we do this 

at an interim Board meeting by telephone in three 

months or whether we wait for six months, I 

personally would favor the three month time frame 

Because, by the six months, we want to be further 

along in planning for the larger case review.

But that depends on peoples' time and 

availability.

But is anybody opposed or in favor of 

this limited case review?

Dr. Cloeren?

MEMBER CLOEREN: Marianne Cloeren.

I have a question. Is the DAR part of 

it? We'd be able to get to see the DAR in the case 

file?

CHAIR MARKOWITZ: Well, the case file 

has the occupational health questionnaire, the 

employment verification information, whatever. 

You know, there's not a lot of DAR in there, most 
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of them that I saw. But, you know, if it's there, 

it would -- it should be in the file.

MEMBER CLOEREN: It's a part of the 

file?

CHAIR MARKOWITZ: Yes.

MEMBER CLOEREN: Okay, thank you.

CHAIR MARKOWITZ: And, you know, some 

of the claims files are quite long, hundreds of 

pages, maybe even a thousand. But actually some 

of them probably have been kind of indexed by other 

Board members in their review.

So, we might share -- for instance on 

the ones I looked at, I indicated what pages have 

the most important documents that you can get to 

and figure this thing out. So, we could certainly 

share that.

Ms. Zaback?

MEMBER ZABACK: Lorna Zaback.

I think it would really be extremely 

helpful if a share area could be created by the 

Department of Labor that these cases can be on. 

Everybody could look at it at the same time. We 
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can put documents for review in instead of like 

emailing things around.

It just would be a secure, also 

especially, you're talking about peoples' PII. I 

think that should be really focused on. I know 

it's easy to do like we probably all have them with 

different agencies and different things.

So, I would assume it would be the 

Department of Labor that would provide that for us. 

But I think, you know, it seems like going back in 

time when you even say a CD, I don't know if how 

many people even have a CD player on their computers 

anymore.

CHAIR MARKOWITZ: But you still know 

what a CD is.

MEMBER ZABACK: Yes, that's good.

CHAIR MARKOWITZ: That's good.

I think then we would ask the Department 

to look into that possibility. There is 

personally identified information on these claims 

files. But there must be some secure way in which 

that can be done.
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If it takes a long time, then we might 

have to resort to default. It's more available. 

But Carrie and Ryan, if you could let us know about 

that, that'd be great.

Yes, Dr. Cloeren?

MEMBER CLOEREN: Marianne Cloeren 

here.

If a secured shared area is not 

possible, is flash drive a possibility instead of 

CDs?

CHAIR MARKOWITZ: Okay, okay.

And I'll assign cases so that you know 

which ones. And actually, Diane -- Ms. Whitten put 

together with some help from me a survey, an 

instrument to collect the information about the 

cases. So, we will find that again and use that 

or consider whether it needs any improvements.

So, the larger cases review plan, you 

know, that's the -- we're not going to do that until 

we have contract support.

But we do need to begin the planning for 

that to identify what our goals are, for example, 
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to understand the environment, for example, that 

the claims examiner operates in in terms of what 

kind of information they have, what kind of 

information they use, whether their statement of 

accepted facts is always correct.

The performance quality, objectivity, 

and consistency of the CMCs and the industrial 

hygiene reports as examples of goals.

I think what we need to do in a working 

group is actually begin the discussion of what the 

goals would be, what our methods would be, you know, 

what our analysis might look like and what we hope 

in terms of outcomes.

And so, are there volunteers actually 

who would be part of a working group to help begin 

that process?

I should have started with this working 

group first because then I could have gotten all 

the volunteers besides myself and, okay, Ms. 

Zaback. Okay, Ms. Splett, Dr. Vlahovich.

So, okay, you know, we're going to, by 

the way, send an email around with the list of the 
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working groups and you can volunteer later on. So, 

in case you have second thoughts on these things.

I want to go back to a public comment 

Because it involves the Nevada test site, the 

National Nuclear Security site that we saw two days 

ago.

And this was a public comment that came 

in -- if you could go to slide 32?

And actually, it probably would have 

been best to raise this when Mr. Vance and Ms. Pon 

were there, but regardless.

So, there was Elizabeth Brooks who's an 

authorized representative who wrote in on a public 

comment. I can't remember whether she presented 

or not, but she wrote in a public comment.

And you're still on my slides, right? 

Okay, so, this was the issue. Part B, chronic 

silicosis, the statute says in Nevada and Alaska, 

in Amchitka, that if a worker worked in mining for 

250 days and they were diagnosed with chronic 

silicosis, they would be compensated.

It's a very simple set of criteria. 
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Nevada -- so, we're going to talk about Nevada 

because that's what she raised, but it applies to 

Alaska, worked in Nevada 250 days and in mining and 

was diagnosed with chronic silicosis.

So, her observation was that, and she's 

handled these cases as an authorized rep for a long 

time, that sometime in 2019 the procedure manual 

changed. And it required not just 250 days Nevada 

mining, but it required that that mining work occur 

before 1992.

And so, that is to say, the claims in 

which the mining worked after '92 are not succeeded 

-- succeeding, they were not accepted.

And if you go to the next slide?

So, this is the language of the act 

statutory language. It just says what I said it 

just said which is that unless there's substantial 

evidence to the contrary, if they were determined 

to be exposed to silica, and they worked 250 days, 

aggregating 250 days, it doesn't have to be 

consecutive, during mining of tunnels in Nevada, 

and they had silicosis, then they would be 
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compensated.

And if you go to the next slide?

It defines -- so, here's the procedure 

manual now. And there are a few slides on this. 

The language -- the key is the language. So, take 

a look here.

Chronic silicosis resulting from 

exposure to silica from covered employment in 

Nevada, aggregating at least 250 days during mining 

of tunnels for tests or experiments related to 

atomic weapons. That's the current language and 

that is more or less straight from the statute that 

faithfully reflects the statute.

And if you go to the next slide?

I've just summarized the elements, what 

you need for a successful claim. Right?

What's interesting is it -- there's no 

mention of 1992. There's no time limit as to when 

that mining exposure occurred.

Now, by the way, this is in distinction 

for the gaseous diffusion plants in the original 

act from cancer where '92 was a magic date. So, 
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Congress was aware of putting in dates, significant 

dates. There's no date here in the statute on 

chronic silicosis in Nevada at the test site.

And so, this is a different part of the 

-- next slide, I'm sorry -- of the procedure manual 

at present. And let me read it because it's a 

little hard to read.

So, this is the same procedure manual 

we just looked at and it's page 180. And number 

two says, present for an aggregate of at least 250 

work days during the mining of tunnels at DOE 

facility in Nevada or Alaska for tests or 

experiments related to atomic weapons.

These are Part B claims. This tunnel 

work occurred through 1992 -- October 1992 at which 

time the unilateral moratorium on nuclear weapons 

testing went into effect.

So now, the procedure manual is putting 

a date, a calendar year. The mining work had to 

occur prior to October 1992. That doesn't appear 

in the act. That's the authorized 

representative's observation.
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And so, that's a different question.

So, I should have raised this, I think, 

when Mr. Vance was here Because he governs the 

procedure manual, actually.

But this language seems to be 

inconsistent with what the statute said. And I 

suppose what we could do is submit an information 

request as to what the background to this language 

is. When did it come in? Why did it come in? 

What's the rationale? What's the variance with 

the statute language? How is that justified? Et 

cetera.

Any comments or questions?

Yes, Dr. Cloeren, your card is up.

MEMBER CLOEREN: Yes, Marianne 

Cloeren.

If there's no -- the statute does say 

related to atomic tests, you know, weapons tests 

or experiments.

And so, I guess I'd be curious what 

people that are claiming silicosis did after 1992 

in the tunnels. Were they still doing atomic 
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weapons tests or experiments, you know, things 

related to that? And if so, then I would agree with 

you.

But if not, then maybe they would have 

to be Part E.

CHAIR MARKOWITZ: Yes, well, you know, 

actually, when we visited, you went, A, we went by 

it, we didn't get to go inside. Mr. Vance got a 

tour in which he got to go in the tunnels.

There's apparently 1.4 miles of tunnel. 

And I asked the tour guide, they're continuing to 

tunnel. They're continuing to create new space 

underground.

The statute doesn't say prove there was 

silica exposure. You need chronic -- you need 

silicosis as a diagnosis. Nevada, 250 days where 

mining work occurred.

MEMBER CLOEREN: Related to atomic 

tests --

CHAIR MARKOWITZ: Tests or 

experiments. And we learned there were 

experiments. There are experiments.
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MEMBER CLOEREN: Still.

CHAIR MARKOWITZ: Some critical 

experiments that occur underground.

MEMBER CLOEREN: Okay.

CHAIR MARKOWITZ: So, this is -- on the 

face of it, this appears to be a variance with what 

the statute says and I think we should request 

clarification about this. Because it, you know, 

maybe they're wrong. You know?

Other comments or questions?

Okay, let's go back to some draft 

language that, I don't know whether that you've 

worked up. Can you send it to Kevin?

MEMBER BOWMAN: I just sent it to you.

CHAIR MARKOWITZ: Oh, sent it to me? 

Okay, if you can send it to Kevin.

MEMBER BOWMAN: I can send it to Kevin.

CHAIR MARKOWITZ: Do you have Kevin's 

email address?

MEMBER BOWMAN: I can find it. Wait, 

wait, yes, Kevin just emailed all of us.

CHAIR MARKOWITZ: Dr. 
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Friedman-Jimenez, you're able to see our screen 

okay?

MEMBER FRIEDMAN-JIMENEZ: Yes.

CHAIR MARKOWITZ: Okay, great, thanks.

MEMBER BOWMAN: Kevin, I just sent it 

to you. I just wrote this up quickly. I think I 

tried to reflect what I heard, but if it's off base 

and we don't have time, that's understandable. I 

just thought I'd work on it.

CHAIR MARKOWITZ: Thank you.

MEMBER BOWMAN: Given time, I could 

start to read it while it's being --

CHAIR MARKOWITZ: Sure, that'd be 

great.

MEMBER BOWMAN: -- put up.

So, this is what I penned. The Board 

recommends the Department provide instruction to 

CE and IH reviewers that if there is evidence that 

a claimant's employment lead to their routine 

duties being located widely across the site that 

this be specifically noted in the claim file and 

that consideration be given in establishing toxic 
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substance exposure and causation for the potential 

for exposures that are site wide and not just to 

their base of operation.

CHAIR MARKOWITZ: Okay, comments?

Dr. Cloeren?

MEMBER CLOEREN: Marianne Cloeren.

Do we want -- I don't know if it's our 

place, do we want to specify via interview or not?

CHAIR MARKOWITZ: No.

MEMBER CLOEREN: No.

CHAIR MARKOWITZ: No, it's too 

specific. I wonder whether there should be 

mention of the SEM in there that, you know, that 

the CE and IH reviewers should, in addition to using 

the SEM?

But at this point, philosophical 

suggestions aren't very helpful. Language 

suggestions are helpful.

MEMBER CLOEREN: Marianne Cloeren.

A friendly amendment, claimant needs an 

apostrophe before the S.

MEMBER BOWMAN: Kevin, I have the Word 
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document up. Should I make edits as we go or do 

you want to do them so everyone can see them?

(Simultaneous speaking.)

MEMBER BOWMAN: Oh, pardon.

MEMBER FRIEDMAN-JIMENEZ: This is 

George Friedman-Jimenez.

Do we want to include CMC physicians in 

the case that there may be a case that they get that 

doesn't have an IH evaluation?

CHAIR MARKOWITZ: Yes, I think that's 

a good idea. But not just for those that lack IH 

evaluation, I mean, the CMC should be taking their 

own look at exposure, frankly, not just relying on 

the IH.

So, what about adding CE, IH, and CMC 

reviewers?

MEMBER FRIEDMAN-JIMENEZ: Yes, that 

would be great.

CHAIR MARKOWITZ: And I withdraw the 

comment about adding SEM to this because I think 

this conveys the meaning regardless.

(Simultaneous speaking.)
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CHAIR MARKOWITZ: CE, IH, and CMC. 

And then, get rid of and IH. No, keep reviewers.

Base of operation, does that convey 

properly our thinking about sort of the core 

functions of those job titles?

MEMBER CLOEREN: Maybe usual work 

area? Or site work area, assigned work area. 

Assigned work location?

MEMBER FRIEDMAN-JIMENEZ: Work area of 

record?

(Simultaneous speaking.)

CHAIR MARKOWITZ: So, to their work 

area of record? Is that the suggestion?

MEMBER FRIEDMAN-JIMENEZ: Yes.

MEMBER CLOEREN: Kevin, this is the 

last couple words there, instead of base of 

operation.

CHAIR MARKOWITZ: Okay, further 

suggestions? Actually, Dr. Bowman, would you mind 

reading it again so the people can absorb it?

MEMBER BOWMAN: Sure. This is Aaron 

Bowman reading the revised version.
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CHAIR MARKOWITZ: I'm sorry, this is --

going to read it and then actually we're going to 

take a -- this will be a motion and we're going to 

take a second, have further discussion and then 

vote if we can.

MEMBER BOWMAN: So, this is Aaron 

Bowman, I make a motion that the Board accept this 

recommendation as I will read it now.

The Board recommends the Department 

provide instruction to CE, IH, and CMC reviewers 

that if there is evidence that a claimant's 

employment lead to their routine duties being 

located widely across a site, that this be 

specifically noted in the claim file and that 

consideration be given in establishing toxic 

substance exposure and causation for the potential 

of exposures that are site wide and not just to 

their work area or record.

CHAIR MARKOWITZ: And a second for that 

motion?

MEMBER KEY: Second.

CHAIR MARKOWITZ: Mr. Key, okay.
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Open for discussion.

Yes, Ms. Splett?

MEMBER SPLETT: Gail Splett.

The word located where the routine 

duties being located, I think if we could find a 

different work being conducted or not just being 

located. I mean, they actually doing those duties 

somewhere else.

CHAIR MARKOWITZ: I'm sorry, what --

I'm sorry, specific language change that you're 

recommending?

MEMBER SPLETT: Yes, sorry.

CHAIR MARKOWITZ: And where is that? 

What line and what --

MEMBER SPLETT: Where are located.

CHAIR MARKOWITZ: Right.

(Simultaneous speaking.)

CHAIR MARKOWITZ: Friendly amendment, 

is that accepted to the proposer?

MEMBER BOWMAN: Yes, that's accepted.

CHAIR MARKOWITZ: Okay.

Other discussion?
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Okay, so --

MEMBER FRIEDMAN-JIMENEZ: I find --

CHAIR MARKOWITZ: Dr. 

Friedman-Jimenez? Yes?

MEMBER FRIEDMAN-JIMENEZ: I find the 

wording that the potential of exposures that are 

site wide is a little bit unclear and I'm wondering 

if maybe you want to make it simpler for the 

possibility that they're exposures were site wide 

and not just limited to their work area or record?

CHAIR MARKOWITZ: I don't understand 

the distinction. It reads now, for the potential 

--

MEMBER FRIEDMAN-JIMENEZ: -- a little 

trouble understanding clearly for the potential of 

exposures that are site wide. And I'm wondering

if there's a more simple way to say it?

(Simultaneous speaking.)

MEMBER FRIEDMAN-JIMENEZ: Maybe the 

word potential is what's giving me a hard time.

CHAIR MARKOWITZ: How about for 

potential exposures that are site wide?
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(Simultaneous speaking.)

MEMBER FRIEDMAN-JIMENEZ: The 

sentence is that consideration be given and then 

it should be to potential exposures that are site 

wide maybe. So, change the to too. It's a very 

long sentence and so you have to really 

concentrate.

CHAIR MARKOWITZ: Yes, yes. Yes, yes, 

yes, there's a lot of brain power going on here.

Okay, so, we need to vote on this. I 

don't -- I'm sorry for the time pressure, but is 

there language that in this particular line that 

we're looking at that represents an improvement 

over what there is there?

Dr. Bowman?

MEMBER BOWMAN: Yes, Jim Key had noted 

if we just delete the words, going back to that 

consideration be given in establishing toxic 

substance exposure and causation for, and then, 

delete the potential, just for exposures that are 

site wide. I think that portrays it.

CHAIR MARKOWITZ: Okay, that's good. 
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Okay, yes, that's good. I think that addresses Dr. 

Friedman-Jimenez's.

Yes, Dr. Cloeren?

MEMBER CLOEREN: Marianne Cloeren.

I think still we've got some 

unnecessary redundancy. So how about just 

consideration be given to the potential for site 

wide exposures and causation?

I don't -- it feels like we have 

exposures and exposures like in that line.

MEMBER BOWMAN: So, I pulled in the 

language establishing toxic substance exposure and 

causation because it comes straight from the 

procedure manual under that category.

CHAIR MARKOWITZ: And also, it ropes in 

the CMC who is focused on causation.

MEMBER CLOEREN: Get rid of the second 

exposure then. So, toxic substance, exposure, and 

causation that are site wide and not just related 

to their work area of record.

MEMBER VAN DYKE: Or for substances 

that occur site wide.
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CHAIR MARKOWITZ: Yes, Dr. Van Dyke, 

what are you suggesting? For exposures that are 

site wide?

Okay, so, enough wordsmithing I think. 

I think we have --

MEMBER FRIEDMAN-JIMENEZ: The last 

part of that sentence doesn't really make 

grammatical sense Because we changed it. So, I 

think the word to has to come out or not just limited 

to their work area of record. So, add limited 

right there.

CHAIR MARKOWITZ: Between just and to, 

not just limited to. Dr. Bowman, is that okay?

MEMBER BOWMAN: Yes.

CHAIR MARKOWITZ: Okay, okay, so we're 

going to close the discussion now and we're going 

to take a vote. And all those -- we go one by one, 

right? Yes, okay, you want to call out the names 

or do you want me to?

(Simultaneous speaking.)

MS. RHOADS: Is that good? Okay.

CHAIR MARKOWITZ: Perfect.
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MS. RHOADS: All right, so, we're 

voting the language that is on the screen about site 

wide job titles.

Mr. Key?

MEMBER KEY: Aye.

MS. RHOADS: Dr. Bowman?

MEMBER BOWMAN: Yes.

MS. RHOADS: Dr. Cloeren?

MEMBER CLOEREN: Yes.

MS. RHOADS: Dr. Van Dyke?

MEMBER VAN DYKE: Yes.

MS. RHOADS: Ms. Whitten?

MEMBER WHITTEN: Yes.

MS. RHOADS: Dr. Markowitz?

CHAIR MARKOWITZ: Yes.

MS. RHOADS: Ms. Zaback?

MEMBER ZABACK: Yes.

MS. RHOADS: Dr. Vlahovich?

MEMBER VLAHOVICH: Yes.

MS. RHOADS: Ms. Splett?

MEMBER SPLETT: Yes.

MS. RHOADS: Dr. Mikulski?
155

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

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MEMBER MIKULSKI: Yes.

MS. RHOADS: Dr. Friedman-Jimenez?

MEMBER FRIEDMAN-JIMENEZ: Yes.

MS. RHOADS: Mr. Catlin?

MEMBER CATLIN: Yes.

MS. RHOADS: Okay, it's unanimous.

CHAIR MARKOWITZ: Okay, okay.

So, just before we adjourn, I just want 

to make sure that there is some items that we've 

discussed that will live on, either in working 

groups or at our next meeting.

The issue of limiting the exposure 

assessment to seven toxic substances not moving 

beyond that, that will be discussed in the future.

The issue of how the SEM keeps exposure 

disease links up to date is something that we need 

to look at in the future.

And then, the Board term length which 

I had raised early yesterday whether it could be 

moved -- should be moved to two to three years or 

longer is something that we will discuss in the 

future.
156

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

Some of this we will carry on by working 

groups and so, I'll send an email around with the 

working groups and with the topics for the working 

groups that people can volunteer -- they can't 

subtract themselves, but they can volunteer to add 

themselves to the working groups.

And with that, that's all we have. 

Ryan, do you have something you need to say?

MR. JANSEN: I believe that is it. 

This meeting is adjourned.

(Whereupon, the above-entitled matter 

went off the record at 11:02 a.m.)
157

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com