uncertainty surrounding its maximum radiation dose estimates. NIOSH seems to believe that so
long as it errs on the side of over-estimating dose, no workers should complain. While NIOSH’s
worker friendly approach is laudable, NIOSH is obliged to rely on the statutory criteria for
evaluating petitions— accuracy of estimates — not on another set of criteria which it views as just
as good. Nowhere in NIOSH’s proposal does it suggest a formula for determining the degree of
accuracy of its maximum likely dose estimates. That is because precise numbers can mask
uncertainty. And, as the number of seemingly precise guesstimates of radiation dose increases, so
too does the uncertainty surrounding their accuracy. The proposed procedures beg the question
of how accurate a dose estimate must be before §3626 applies. In doing so, NIOSH has created
obstacles to inclusion in the SEC. Nothing in EEOICPA permits such an approach. Congress
required NIOSH to focus on accuracy. NIOSH must revise its interpretation to ensure that
accuracy is the touchstone for inclusion in the SEC.

Section 3626 also requires that dose reconstruction be feasible. Feasible usually means
“capable of being done,” see American Textile Mfrs v. Donovan, 452 U.S. 490 (1981), and
implies consideration of the time, effort and expense involved in dose reconstruction. In PACE’s
view, many dose reconstructions involve too much time and expense and the quality of the actual
dose estimate is uncertain. Under such circumstances, we believe dose reconstruction is not
feasible.

In its comments on the initial proposed procedures for adding workers to the SEC, PACE
suggested NIOSH set a time limit for completing individual dose reconstruction. If dose could
not be reconstructed within a certain time frame, the affected employee or group of employees
should be added to the SEC on the ground that dose reconstruction is not feasible. In its revised
proposal, NIOSH agrees in principle with this position, 68 Fed. Reg. 11296. Nevertheless, its
revised procedures do not set any time limit because, NIOSH claims, the dose reconstruction
process is just starting and it is too soon to impose time limits.

It is now almost three years since Congress adopted EEOICPA. NIOSH has already let a
substantial contract for dose reconstruction. Under that contract, NIOSH told the PACE Atomic
Energy Council, 8000 dose reconstructions must be completed each year. NIOSH further
promised PACE officials that the entire backlog of dose reconstructions would be eliminated by
the end of 2004. Setting a time limit on dose reconstructions would provide workers with
confidence that these deadlines are not illusory.

In 2000, Congress told employees seeking compensation for radiation induced cancer that
their claims would be processed expeditiously and that long delayed compensation finally would
be forthcoming. Three years have passed since Congress made that promise to DOE contract
workers. Yet, in that time virtually no workers with cancer, other than those employed at
gaseous diffusion plants, have received compensation. These delays are the direct result of the
slow pace of NIOSH dose reconstructions. The proposed procedures effectively enshrine this
slow pace into the program. By refusing to establish a time limit on individual dose
reconstruction, NIOSH ensures that sick employees and their families will continue to bear the



certified bargaining units will conserve NIOSH resources, because it will avoid the potential
problem of several competing representatives filing overlapping or inconsistent petitions on
behalf of common employees.

There are three possible exceptions to the principle that the union must be recognized as
the exclusive representative of workers in bargaining units for which it is certified. Of course, if
no union is certified as the bargaining representative of a group of employees, then there is no
exclusive representative for those workers. And, retired workers are not viewed as members of a
certified bargain unit under federal labor law, so NIOSH is not required to recognized the union
as the exclusive representative for a petition that covers only retired workers, but not workers in
an existing bargaining unit. Finally, employees may file a petition on their own behalf for
inclusion in the SEC. Nothing in federal labor law prohibits an employee from designating his or
her own representative, provided that representative does not act on behalf of the collective
interest of employees in the bargaining unit. Finally, a certified union may designate another
person or entity to act on its members behalf.

PACE does not mean to denigrate the very real and important contribution of worker
advocacy groups. In many areas they work on behalf of workers who are not otherwise
represented or in conjunction with local union leadership and there is no reason NIOSH should
not continue to recognize the important contribution such worker advocacy groups make. What
is improper, however, is to allow any group to displace the union as the exclusive representative
of workers in units where is as been certified as the collective bargaining representative.

Proof Requirements Are Unnecessarily High

Section 83.9(c)(3)(ii) requires a petition to include two affidavits, independent of the
petitioner, to corroborate an exposure incident. This standard of proof is too high. There is no
reason why NIOSH needs three sworn statements to corroborate an exposure incident (the
petitioner plus two others). Corroboration by an independent source, if one is available, should
be adequate. But where the exposed workers are deceased, corroboration requirements should be
waived or NIOSH should accept second hand accounts of the exposure incident as adequate
corroboration. Workers already face enormous hurdles in proving a negative — that their
exposure records are incomplete and cannot accurately be reconstructed. NIOSH should not
needlessly add to these hurdles.

Miscellaneous Other Comments

1. Proposed § 83.9 requires a petition to identify the facility to which it applies. NIOSH
should clarify that “facility” in the singular may include facilities in the plural. The term facility
should be broad enough to include occupational groups across facilities, and among different
facilities on the same site. Organizational labels should not be a basis for distinguishing between
like exposure patterns.


radiation caused or contributed to a worker’s illness. Finally, under §3623 radiation must be the
sole cause of the cancer; NIOSH has opted not to consider synergistic effects between radiation
and other occupational toxins. Under §3626 there is no basis for considering the effects of
radiation in isolation.

The §3626 criteria do not supplement or complement the criteria in §3623. They are
separate, independent provisions. NIOSH should look to the characteristics of the existing SEC
(and the quality of data available for dose reconstruction at gaseous diffusion plants) to define
§3626. Indeed, the fundamental flaw in NIOSH’s proposed procedures is that they look to §3623
to define the concepts in §3626. Congress clearly did not intend such a result. Rather, it
provided in §3602(8) that nuclear workers “should have efficient, uniform, and adequate
compensation for... radiation-related health conditions.” (emphasis supplied). NIOSH’s
interpretation of §3626 creates inequity because it permits those at sites other than gaseous
diffusion plants to gain inclusion in the SEC only on substantially narrower grounds than that
which Congress used for other workers. There is no reason to believe that Congress intended
such a result. Rather, EEOICPA suggests the procedures in §3626 were included so that workers
who were not employed at gaseous diffusion plants would have the opportunity for inclusion in
the SEC on a comparable basis as those who worked at gaseous diffusion plants. NIOSH has
undermined Congress’ goal of creating uniform compensation by reading the criteria in §3623 as
a limit on when §3626 applies. Instead, NIOSH should read §3626 in conjunction with the
statutory provisions governing compensation for current members of the SEC, rather than as a
default procedure for those who do not meet the criteria of §3623.

When Is It Infeasible to Accurately Assess Radiation Dose?

Under proposed §83.13, NIOSH retains its flawed interpretation that it will view
favorably petitions under §3626 only when dose reconstruction under §3623 has failed. Under
NIOSH’s view §3626 is no more than an infrequently relied upon supplement to §3623 rather
than an alternative procedure for obtaining compensation on a basis comparable to members of
the existing SEC. Indeed, NIOSH explicitly states that the procedures for adding members to the
SEC are a complement to those for individual dose reconstruction. 68 Fed. Reg. 11295. Nothing
in the statute indicates Congress intended the procedures in §3626 to serve as a default when the
procedures under §3623 have failed. Indeed, had Congress intended such a result, the provisions
of §3626 would have been merely another subsection of §3623, rather than an independent,
alternative method of obtaining compensation. By inexplicably linking the two procedures,
§3626 becomes subordinate to §3623. PACE strongly disagrees with this narrow, crimped
interpretation of EEOICPA. It will have the effect of creating potentially insurmountable
obstacles to those seeking inclusion in the SEC.

This interpretation is particularly troubling because NIOSH apparently believes, despite
considerable evidence to the contrary, that there is no radiation dose it cannot estimate, however
inaccurately. An uncertain, maximum radiation dose is not the same as an accurate radiation
dose. NIOSH has improperly defined the two as synonymous. By doing so, NIOSH ignores the


burden of delay. Enough time has passed for NIOSH to get its program up and running. The
procedures should presume that inclusion in the SEC is appropriate because NIOSH cannot
feasibly estimate radiation dose for any dose reconstruction not completed within six months
from receipt of a claim (or in the case of pending applications, six months from the date of the
final rules).

Has Radiation Exposure Endangered Worker Health?

The second criteria in §3626 for inclusion in the SEC is whether radiation exposure may
have endangered a workers’ health, not whether it is more likely than not that radiation was the
cause of a specific cancer. Once again, NIOSH confuses the criteria in §3626 with those in
§3623 and improperly proposes to add the criteria in the latter as additional criteria for inclusion
in the SEC. Nothing in EEOICPA permits NIOSH to do so.

Under §83.13(b)(4) NIOSH interprets EEOICPA as granting it authority to include
workers in the SEC as to some cancers but not others. See also 68 Fed. Reg. 11296. Congress
very clearly stated that an individual who is included in the SEC is entitled to compensation for
any specified cancer. Congress intended an exposure cohort, not a disease cohort. NIOSH lacks
the authority to decide that employees added to the SEC may receive compensation for some, but
not other, types of cancer.

“Covered emplyee[s] with cancer” are entitled to compensation under EEOICPA.
Section 3621(9) defines a covered employee as “an individual with a specified cancer who is a
member of the Special Exposure Cohort . . “ Section 3621(14) defines a member of the SEC as
“an individual designated as a member of the Special Exposure Cohort by the President for
purposes of the compensation program under section 3626.” Neither section provides for
conditional inclusion in the SEC as to some cancers but not others. Once a group of individuals
is designated for inclusion in the SEC, they are entitled to compensation on the same basis as
other members of the SEC — in other words they must be compensated for any specified cancer.
Congress intended the SEC to be an exposure cohort, not a disease cohort. Were NIOSH to
create disease cohorts, it would create yet another area of nonuniform compensation as between
existing members of the SEC and those who might be added to the SEC. Congress intended
uniformity of compensation criteria, §3602(8), not its opposite.

Further there is no scientific basis for the suggestion that NIOSH can distinguish between
which cancers might warrant compensation and those where compensation is unwarranted.
Throughout its revised proposal, NIOSH recognizes that it cannot rely on NIOSH IREP to
determine who is added to the SEC because, by definition, in such cases NIOSH will lack
adequate information to characterize exposures. 68 Fed. Reg. 11297.

Yet, NIOSH proposes to allow NIOSH IREP to govern its decisions under §3626
indirectly, if not directly, by looking at radiation source. Implicit in NIOSH’s suggestion that
some cancers are more likely to occur following certain exposures and other cancers are more


2. Under §83.11, NIOSH is authorized to reject petitions without presenting them to the
Advisory Board. Before NIOSH rejects a petition as inadequate, it should establish an internal
review procedure to verify that the petition is so lacking further evaluation is unwarranted.

3. Under §83.9(b), NIOSH requires that when it cannot complete dose reconstruction, the
claimant must petition NIOSH for inclusion in the SEC. This imposes a needless burden on
claimants. When NIOSH cannot complete a dose reconstruction, it should automatically
consider the claimant for inclusion in the SEC. No further action on the part of the claimant
should be required under such circumstances.

4. NIOSH should narrowly limit the circumstances under which the Secretary may reject
an Advisory Board recommendation to include workers in the SEC. A decision by the Secretary
to ignore the advice of the Advisory Board in most circumstances would be arbitrary. Further,
the Secretary should be required to provide a detailed explanation of his decision when he
reaches a conclusion contrary to the recommendation of the Advisory Board.

5. Under §83.13, NIOSH should make clear that any changes to an SEC class will apply
prospectively only, so workers or their survivors who have received benefits under an earlier
decision do not have to worry that those benefits will be taken away.

In conclusion, PACE believes that NIOSH’s interpretation of §3626 is unduly narrow,
improperly departs from the concept of uniform compensation for nuclear workers and creates
unwarranted barriers to inclusion in the SEC. We believe that NIOSH should read §3626 in light
of the criteria Congress used in creating the existing SEC and not, as its proposal would do, by
reading §3626 as the default procedure after dose reconstruction under §3623 has failed.

Very truly yours,

Randy S. Rabinowitz


Page 1 of 1

Miller, Diane M.

From: Randy Rabinowitz [rrabinow@starpower.net]
Sent: Thursday, May 01, 2003 1:06 PM

To: NIOCINDOCKET@CDC.GOV

Subject: EEOICPA Comments

Attached are PACE"S Comments to NIOSH"s proposed rule

5/8/2003



closely linked to different types of radiation exposure is the notion that it should evaluate the
epidemiology evidence, make judgements about which cancers are more strongly associated with
certain types of radiation, and weigh the probability that certain exposures are likely to cause
certain cancers. These are risk based notions suggesting that NIOSH is improperly incorporating
the probability of causation determination required under §3623 into §3626. Nothing in §3626
gives NIOSH this authority. Further, by relying on probability of causation concepts, NIOSH is
ignoring the statutory criteria that workers should be included in the SEC when radiation may
have made them sick, not when there is a 51% chance that it did so. Congress decided that

all SEC members — those designated by Congress and those added under §3626 — receive
compensation for any specified cancers. NIOSH is not at liberty to second guess Congress’
decision.

Unions Must Be Recognized as the Exclusive Representative.

The proposed procedures, §83.7, in a departure from earlier drafts, propose that any
person may file a petition on behalf of a group of workers and act as their representative so long
as “one or more individuals” authorize the representation. This provision directly conflicts with
federal labor law and is incompatible with the union’s legal responsibility to act as the exclusive
representative of the collective interests of the employees in certified bargaining units. NIOSH
must narrow §83.7 so it is consistent with federal labor law.

Under established principles of federal labor law, when a union is certified as the
representative of employees in a bargaining unit, it is recognized as the exclusive representative
of those employees. Other entities are prohibited from representing the collective interests of
employees in the affected bargaining unit. Any NIOSH procedures inconsistent with this
bedrock principle are incompatible with the National Labor Relations Act.

Other agencies have developed procedures recognizing that a union certified to represent
employees in a bargaining unit is the only entity that can act on their collective behalf. For
example, section 8(e) of the Occupational Safety & Health Act provides that a “representative of
employees” may accompany the OSHA compliance officer during the physical inspection of a
workplace. OSHA has interpreted this provision as requiring that the union exercise those walk-
around rights. Others may act as a representative of employees only if no union is certified to
represent the workers. See OSHA Firm, Ch.Il, A.2.h.2. Similarly, when employees seek to
participate in employer contests to OSHA citations, the Occupational Health and Safety Review
Commission requires that those contest rights be exercised by an “authorized employee
representative.” 29 C.F.R. §2200.20(b). An “authorized employee representative” is a “labor
organization that has a collective bargaining relationship with the cited employer and that
represents affected employees.” 29 C.F.R. §2200.1(g).

Thus, NIOSH policy should recognize the exclusive right of a labor union to represent the
collective interests of employees in represented bargaining units who might petition for inclusion
in the SEC. Furthermore, recognition of the union’s exclusive right to represent employees in


May 1, 2003

Sent Electronically to NOOCINDOCKET@CDC.GOV

NIOSH Docket Office
Robert A. Taft Laboratories
MS C34

4676 Columbia Parkway
Cincinnati, OH 45226

To the Docket Officer:

These comments are submitted on behalf of the Paper, Allied-Industrial, Chemical and
Energy Workers International Union (PACE) in response to the Proposed Procedure for
Designating Classes of Employees as Members of the Special Exposure Cohort Under the Energy
Employees Occupational Illness Compensation Program Act of 2000 published in the Federal
Register on March 7, 2003.

PACE represents 320,000 workers nationwide in oil, chemical, pulp, paper, auto parts
and nuclear industries. We represent workers at eleven Department of Energy (DOE) sites in the
DOE nuclear complex and workers at a number of current and former beryllium and other atomic
weapons employers. Additionally, PACE represents tens of thousands of former workers
potentially affected by this proposed rule. These procedures for designating additional members
of the special exposure cohort (SEC) will govern whether our members and their families, and
thousands of other workers, receive compensation for radiation induced cancers.

PACE applauds NIOSH for revising the proposed procedures in response to comments
NIOSH received from PACE and other unions. This revised proposal reflects important changes
to the proposed procedures. Nevertheless, despite some improvements, NIOSH’s revised
proposed procedures remain fundamentally flawed. They are premised on a narrow, mistaken
interpretation of EEOICPA, one that assumes that Congress expressed a preference for
adjudicating cancer claims individually, on the basis of dose-reconstruction. Nothing in the
statutory language or legislative history of EEOICPA support NIOSH’s interpretation. Rather,
Congress intended the procedures established under §3626 to represent a viable, alternative basis
for large groups of similarly situated workers to obtain compensation on a basis comparable to


that which applies to gaseous diffusion plant workers. Any interpretation of EEOICPA which
creates unwarranted obstacles for workers seeking inclusion in the SEC is inequitable and
inconsistent with Congress’ intent.

What are the Statutory Criteria for Inclusion in the SEC?

Congress established two alternative procedures by which employees who are not
legislatively included within the SEC may receive compensation under EEOICPA. Under §3623,
an employee with a specified cancer may receive compensation only if that cancer was “at least
as likely as not related to employment . . .” Compensation may be awarded only after NIOSH
completes a “reasonable estimate of dose” and that dose shows that the employee is within “the
upper 99 percent confidence interval of the probability of causation in the radioepidemiological
tables...” NIOSH has adopted regulations defining each of these technical terms.

But, §3626 provides an opportunity for employees to be added to the SEC, thus enabling
those with specified cancers to obtain compensation on an alternate basis. The fundamental flaw
in NIOSH’s proposed procedures is that it reads the terms in §3626 as synonymous with those in
§3623. To the contrary, Congress chose different terms to define the different criteria it directed
NIOSH to rely upon when deciding whether to add workers to the SEC. Rudimentary principles
of statutory construction dictate that when Congress uses different terms in related provisions, it
intended a different meaning. If Congress had wanted the terms in §3626 to have the same
meaning as the terms in §3623 it would have used the same language.

For example, §3623 requires NIOSH to provide a “reasonable estimate of dose.” For
those purposes it may be rational for NIOSH to assume that an estimate of maximum radiation
dose is reasonable. But, §3626 does not provide for inclusion in the SEC only when no
“reasonable estimate of dose” may be reconstructed. Rather, it provides for inclusion in the SEC
when dose cannot “feasibly” be reconstructed with “sufficient accuracy.” Obviously, unless
NIOSH reads the words “feasibly” and “sufficient accuracy” out of the statute, the maximum
radiation dose concept used under §3623 cannot serve as the statutory criteria for inclusion in the
SEC.

Similarly, under §3623, compensation may be awarded only when it is “more likely than
not” based on the “upper 99 percent confidence level” of radioepidemiology tables that radiation
caused a worker’s cancer. Again, §3626 provides different criteria for determining when a group
of workers may be added to the SEC. Congress provided workers must be added to the SEC
when “there is a reasonable likelihood that such radiation may have endangered the health of
members of the class.” While §3623 requires that NIOSH look at each cancer separately to
determine whether a worker’s radiation dose was high enough to cause a particular cancer, §3626
requires a more generalized determination that radiation may have caused or contributed to
adverse health effects. Second, while §3623 requires that there be a 51% likelihood that
radiation caused a cancer, §3626 looks only to whether there is a reasonable likelihood of a link
between adverse health effects and radiation — clearly a lesser standard more akin to whether