the list of cancers relies on risk determinations without any basis for estimating a
plausible dose, and, as a matter of science, completely contradicts the logic of NIOSH’s
previous determination to jettison the IREP model as the basis for determining
endangerment in the June 2003 SEC Proposed Rule. We are also disappointed that
NIOSH would consider adopting this claimant hostile approach to interpreting the statue
as a matter of policy.

The SEC was authorized in order to compensate people, many of whom were
unknowingly exposed to radiation and/or whose exposure records are in many cases
missing, incomplete, inaccurate or unreliable. The injustice of this type of situation was
taken into account when the legislation was written. Any action to limit the 22 cancers is
not consistent with the spirit, intent and wording of the original bill. In fact, in a floor
statement from the lead co-sponsor, Senator Jeff Bingaman, he referred to SEC claimants
being eligible for benefits if they contracted any of the 22 cancers. He referred to this as
a “fixed” list of cancers — not a variable list as the rule suggests. We refer you to the
October 12, 2000 Congressional Record for elaboration.

Furthermore, the SEC portion of the Rule is based on: 1) the fact that it is not feasible to
accurately estimate dose, and 2) there is a reasonable likelihood a person or persons may
have been endangered. Estimating which organs may be effected or not when there is not
adequate information to estimate a worst case dose is “splitting a hair too finely.” In the
face of NIOSH’s admitted inability to estimate the risk to individual organs when doses
cannot be “capped” the benefit of the doubt should be given to the sick workers and the
authority to limit cancers should not be allowed.

4. How will NIOSH account for radiation doses accumulated at SEC
Sites for non-specified cancers?

Regular LLNL employees have routinely traveled for extended periods to the Nevada
Test Site, Amchitka Island Test site and other testing facilities. Where individual claims
are filed for non-SEC cancers, how will NIOSH assign or otherwise calculate doses
accumulated at SEC sites such as Alaska Test Site? Will NIOSH try to estimate
Amchitka doses? Will these “assigned doses” be added to doses accumulated at LLNL?
What if a class of workers at the Nevada Test Site is ultimately put in an SEC, how
would those doses be assigned (given they cannot be estimated?) Will NIOSH account
for this in the SEC rule, or will it address this in the dose reconstruction rule?



Miller, Diane M.
_ —

From:
Sent:
To:
Subject:

4HS comments.doc
(31 KB)

Inga Olson [olsoning@yahoo.com]

Tuesday, May 06, 2003 8:03 PM
NIOCINDOCKET@CDC.GOV

Comments regarding the HHS Notice of Proposed Rulemaking

Attached are the Tri-Valley CAREs comments on the HHS
Notice of Proposed Rulemaking Procedure for
Designating Classes of Employees as Members of the
Special Exposure Cohort under EEOICPA, 68 FR
11294-11310, published on March 7, 2003.

Do you Yahoo!?

The New Yahoo! Search - Faster. Easier. Bingo. http://search.yahoo.com



TRI-VALLEY CARES (COMMUNITIES AGAINST
A RADIOACTIVE ENVIRONMENT)

2152 Old First Street
Livermore, CA 94551

925-443-7148
www.trivalleycares.org

Comments of Inga Olson, Program Analyst
Tri-Valley CAREs

Regarding the HHS Notice of Proposed Rulemaking

For Designating Classes of Employees as Members of the Special Exposure Cohort
Under the Energy Employees Occupational IlIness Compensation Program Act of 2000
(EEOCIPA)

Federal Register Vol. 68, No. 45, pp.11294-11310 (March 7, 2003)

Outlined below are Tri-Valley CAREs comments on the HHS Notice of Proposed
Rulemaking Procedure for Designating Classes of Employees as Members of the Special
Exposure Cohort under the EEOICPA, 68 FR 11294-11310, published on March 7, 2003.

Tri-Valley CAREs is a non-profit organization started in 1983 by a group of neighbors
and laboratory workers from the Lawrence Livermore National Laboratory (LLNL). We
have a Technical Assistance Grant from the Environmental Protection Agency and
represent the community’s point of view on cleanup issues at the LLNL Superfund site.
In addition, we have been providing assistance to current and former Department of
Energy (DOE) employees, contractors, and subcontractors in California who are applying
for compensation under the EEOICPA. We coordinate and facilitate a support group for
sick workers and their family members.

Our comments on the following four aspects of the proposed rule are based on our
experience and knowledge assisting sick workers and family members in all aspects of
the EEOICP process as well as our role as a watchdog organization monitoring lab
activities over the last 20 years.

1. Section 83.5 — Definitions, Class of Employees

The definition in Section 83.5(c) should not be limited to a group of employees who work
or worked at the same DOE or Atomic Weapons Employer (AWE) facility. The San
Francisco Bay Area is home to many EEOICPA covered facilities. It is not uncommon
for DOE subcontractors to work at a variety of facilities in the area such as Lawrence
Livermore National Laboratory (LLNL) and its sister plant across the street, Sandia
National Laboratory. This could form a common exposure cohort. The record-keeping
at the labs is not good. Employees routinely work at the Nevada Test Site, Rocky Flats



and other nuclear facilities and often those records of traveling workers are unavailable or
missing, providing a common basis for an SEC.

The NIOSH rule, section 83.5(c) should be amended so that employees who work or
worked at one or more DOE and/or AWE facility can be included as a “class of
employees.” This amendment should be used as well in accumulating days of potential
radiation exposure to meet the 250 day employment threshold under 83.13.

The Special Exposure Cohort (SEC) has been set up to address the situation where a dose
reconstruction cannot be conducted due to inadequate information. Ifa lack of
information exists at more than one facility where the employee worked, all facilities
need to be considered for whom the availability of information and recorded data is
comparable with respect to the informational needs of dose reconstructions conducted
under 42 CFR Part 82. In addition, common exposure histories can crossover from
process-to-process, building-to-building and site-to-site. To reiterate, classes should be
defined by whether there was insufficient data to estimate doses for employees who meet
the employment duration threshold.

2. Section 83.7 — Who can submit a petition on behalf of a class of
employees?

We commend you on broadening the population who can file a petition in the proposed
rule 83.7. This rule proposes that both unions and groups who are adequately authorized
are able to file a petition. We know this is important because of our work here at Tri-
Valley CAREs (TVC). Although we have played an advocacy role in support of a
compensation program for sick nuclear workers for many years, we had no intention of
getting so involved in the nuts and bolts of assisting workers with their applications,
providing a repository for information related to the EEOICPA and coordinating and
facilitating a support group. However, we started receiving so many calls from sick
workers whose needs were not being met, that we began providing assistance until a time
when a permanent resource center is located in Livermore to assist sick workers and
family members.

A natural extension of our activities would be in filing petitions for membership in a
Special Exposure Cohort for appropriate individuals and classes. For that reason, we
support the provision in Section 83.7 to allow organizations such as TVC to file petitions
on behalf of a class, subject to authorization from at least one individual in the class. We
do not support a proposal from those who would seek to limit the right to petition to only
unions which represent workers at a given site. This is unworkable.

3. Section 83.12(b)(1)(iv) and 83.13(b)(2)(iii) and 83.13(c)(4) — Limiting the
List of 22 Specified Cancers

Authority to limit the list of specified cancers should be deleted from 83.13 of the rule. It
is plainly unlawful and contradicts clear Congressional intent. Limiting the list of
specified cancers where dose cannot be “capped" is scientifically unworkable. Limiting