general statement of NIOSH policy and does not have the specificity for
arule. Further, the proposal as presented has the potential of
becoming “a house of cards,” with this rule being dependent on another
rule (for dose reconstruction) first failing. {t would be appropriate

for NIOSH to revise the proposal by incorporating comments received,
and then reissuing the draft as a guidance document, rather than a rule.
This will enable NIOSH to be more flexible in their interpretation and
action as case issues develop.

Sincerely,
Robert E. McGarrah, Jr.
Coordinator for Workers’ Compensation

Robert E. McGarrah, Jr., JD, MPH
AFL-CIO Safety and Health

815 16th Street, NW

Washington, DC 20006
202-637-5335

Fax 202-508-6978


deficient to warrant inclusion of a class in the SEC?
3. NIOSH's Singular View of the Process is III Advised.

NIOSH has concluded that the process for establishing additional

members of the SEC should follow a single procedure, in which

petitioners in effect must prove NIOSH dose reconstruction process wrong
before NIOSH will accept their petition. This singular approach is both
impractical and ill advised. We note with regret that in the year that

has passed since EEOICP went into effect NIOSH has managed to complete
only seven (7) dose reconstructions; that is, NIOSH has reviewed the
exposure information on seven workers only. This is hardly encouraging
to those who believe that workers should be entitled to an expedited
hearing on their claims, given that these claims are for cancers, many

of which have poor outcomes. We also think that NIOSH has reasoned
poorly when it decided that only one approach is permissible. There are
many different ways in which determination of a petition can be made,

and it seems that NIOSH has selected the most cumbersome one as its sole
approach.

4. NIOSH's Assumption that Risk Can be Extrapolated is not
Validated

NIOSH believes that if it can establish a dose reconstruction for one
worker, then it can extrapolate that finding to other workers similarly
situated. Thus, a petition for class may not be approved if as few as
one dose reconstruction can be made for members of that class. The
amount of uncertainty that surrounds this belief has not been
determined. For instance, in CPWR-NIOSH T-BEAM projects attempting to
standardize exposure estimates for construction trades workers doing
similar tasks, the variability in exposures has been so great as to make
a prediction of exposure levels infeasible in many cases. It is likely
that this will be the case with radiation as well. Therefore, we don't
think the fact that a dose reconstruction can be made for one worker
should be used to evaluate a petition for SEC coverage for a class of
workers.

5. The Proposed Process Does Not Appear Timely

NIOSH proposes a process with many steps, but does not sufficiently
place time limits on each of them (paragraph 83.10(a)). As noted in
table 1, we estimate that the NIOSH part of the process (steps 3-7) will
take 15-18 months, and it is possible that a petition for a class could
be dragged out indefinitely. As noted above, the timeliness of dose
reconstructions to date is not encouraging, and while NIOSH has an
explanation for why so few have been completed to date, claimants are
not getting satisfaction. Clearly, the procedures for reviewing a SEC
petition are much more complex than reviewing a claim from a single
worker. We think NOSH has a duty to impose deadlines upon itself in
the review of SEC petitions, which if not met, gives the petitioner a
favorable decision. It seems that 30 days is a reasonabl

e time to

perform the initial review.

Concern about the Basic Construct of the Rule

The AFL-CIO also questions whether this proposal is appropriately
characterized as a rule under the Administrative Procedures Act. The
reason for this concern is the potential for highly arbitrary actions
under this proposal. NIOSH has stated that this proposal will be
interepreted on a case by case basis suggesting more that this is a

4


Miller, Diane M.

———
From: Rob McGarrah [Rmcgarra@aficio.org]

Sent: Monday, August 26, 2002 12:50 PM

To: niocindocket@cdc.gov

Ce: Jordan Barab; Peg Seminario; Delisbur@infi.net; rrabinow@starpower.net
Subject: AFL-CIO Comments on Proposed SEC Rules

August 26, 2002
NIOSH Docket Office
Robert A. Taft Laboratories
MS C34

4676 Columbia Parkway
Cincinnati, OH 45226

Sent Electronically to NIOCINDOCKET@CDC.GOV
Dear Sir or Madam:

The American Federation of Labor and Congress of Industrial
Organizations represents more than 14 million working people throughout
the country. Many of our members worked during the Cold War in America's
nuclear weapons program and were represented by our affiliated unions,
including the unions of the Building and Construction Trades Department
and the Paper, Allied-Industrial, Chemical and Energy Workers
International Union (PACE).

After decades of denial by the Department of Energy and the Atomic

Energy Commission, Congress determined in 2000 that these men and women
should receive "timely, uniform, and adequate compensation" for their
diseases from exposure to radiation, beryllium, or silica while working

in DOE nuclear weapons-related programs and, where applicable, their
survivors.

Sadly, the proposed rules of the National Institute for
Occupational Safety and Health for designating classes of employees as
members of the Special Exposure Cohort for compensation under the Energy
Employees Occupational Illness Compensation Act
would completely frustrate the will of Congress and prolong the
suffering of these patriots. The proposed rules fail for the following
reasons:

(1) NIOSH has created an adversarial proceeding in which a class of
workers without resources is once again pitted against the Government
with its unlimited resources;

(2) NIOSH has shifted the burden of proof from the Department of
Energy to show that records are complete on to workers to prove that
records are totally incomplete.

Proposed dose reconstruction standards are improper

Specifically, Section 83.2 (a), of the proposed rules sets forth a
subjective standard for deciding whether or not NIOSH will determine
that a radiation dose can be reconstructed. A "determination by NIOSH
that it cannot complete a dose reconstruction for the claimant" is
inconsistent with the Act. Section 3626(b) sets a higher standard: "it
is not feasible to estimate with sufficient accuracy the radiation dose
the class received."

NIOSH cannot deny Special Exposure Cohort petitions if NIOSH can
assert, without defining its terms, that it can "complete a dose
reconstruction." The proposed rule would permit NIOSH to "complete" dose
reconstructions which are inaccurate, unreliable and miss significant
amounts of unmonitored dose.


The proposed rule relies upon a definition of "endangered the health"
(Proposed Rule Section 83.5) that rests on "statistical estimates of the
probability that a specific cancer was caused by specific amount and

types of ionizing radiation." Since the radiation dose of these workers

is assumed to be an unknown (and not knowable), how can NIOSH determine
whether their health was endangered using potential radiation dose
estimates? If NIOSH does not have a good enough dose for estimating the
likelihood of causation, how is it possible that there is a good enough

dose for deciding whether a worker was endangered?

There will be situations where NIOSH will not be able to
determine the potential level of radiation to which the class was
exposed and the rule does not state what NIOSH will do in these
situations. The rule's silence implies that NIOSH has only one choice.
When it cannot estimate a potential dose, it will conclude that the
class was not endangered. This would be an unreasonable and illogical
conclusion. Additionally, it would be an unlawful execution of the SEC
provision, which is to provide compensation to those claimants who "may
have been endangered" and for whom "sufficient" dose data does not
exist. NIOSH should, if it sticks with the proposed "endangerment"
algorithm, create alternative methods when it cannot estimate
"potential" dose.

The proposed rule relies upon unacceptable biostatistics and bad
policy

Congress never intended for these workers to be subjected to
pseudo-science and circular reasoning.

Instead, NIOSH should use the approach Congress applied to
Special Exposure Cohorts at the gaseous diffusion plants: (250 days and
the individuals in class were monitored for radiation or should have
been monitored) or, in cases where the potential dose cannot be
estimated, NIOSH should assign a dose that exceeds the threshold for the
most radio-sensitive cancer to meet the endangerment test. Additional
criteria will have to be developed for acute exposures of a shorter
duration (e.g., fought fire with pyrophoric radioactive materials) that
can serve as a proxy for endangerment.

Since NIOSH has superior access to exposure records than do the workers
Congress has determined to protect, NIOSH should investigate each
petition for inclusion in the Special Exposure Cohort by requesting
exposure records from DOE or its contractor. A NIOSH request should be
subject to a time limit. If DOE or its contractor fails to provide

records within a reasonable amount of time, NIOSH should assume that no
adequate records exist to reconstruct the dose. Petitions should not

wait indefinitely for exposure records that may never be produced

Dose reconstruction process is excessive

Moreover, under the proposed rule, since claimants will not be able to
perform dose reconstructions themselves, they will be subjected to a

flawed NIOSH dose reconstruction framework. Unless claimants allow NIOSH
to try and fail to perform a dose reconstruction, NIOSH will not

consider the petition for the Special Exposure Cohort. This means a
petitioner will face the following steps:

Estimated Time Line for SEC Claims Process under Proposed Rule
Step No. Procedure Duration
1 Filing of claim 1-3 month
2 DOL request for DOE employment records 3-6 months
2



Referral to NIOSH dose reconstruction 6-9 months
Review by dose reconstruction by DOL 1-3 months
Submission of SEC Petition 1-3 months

NIOSH review of petition 3 months

Board on Worker and Radiation Health review 3-6 months
Congressional review6 months

Total duration 24-40 months

OnNAUAW

Congress never intended to prolong the suffering of these dedicated
workers. On the contrary, it sought to make every effort to assist them
to file their claims and to resolve them as quickly as possible.

The AFL-CIO also joins in the flowing concerns, which have been raised
by the Building and Construction Trades Department:

1. Presentation of Statutory Requirements. NIOSH errs in
two interpretations of the statute:

a In Background Section (D)—Statutory Requirements for

Designating Classes of Employees as Members of the Cohort, NIOSH

misstates the statute. The notice should be corrected to read: "The |
Board's advice is to be based on ‘exposure assessments by radiation |
health professionals, information provided by DOE and such other
information as the Board considers appropriate.” This is a very
significant distinction, because "such other" would mean “other than
exposure assessment by radiation health professionals” which "other
such" would mean "same as exposure assessment by radiation health
professionals." This is more than a semantic difference, because all ;
the rest of the rule derives from this interpretation. It is the :
AFL-CIO's position that Congress left for the Board to define what is

meant by "such other.”

b. One of the criteria for inclusion in the SEC as defined in the
statute is "It is not feasible (our emphasis) to estimate with

sufficient accuracy the dose that the class received." In Background
Section (E) NIOSH has chosen to interpret this to mean that "...if NIOSH
can successfully reconstruct the radiation doses of the members of the
class...." then the class does not qualify for SEC membership. In other
words, NIOSH has chosen to interpret "feasible" in the most narrow,
technical or scientific manner. Yet, "feasible" has many other
meanings. It may be technically possible to reconstruct a dose, but if
it

cannot be done in a timely manner, then it is not feasible. The

AFL-CIO position is that Congress had in mind a much broader
interpretation of "feasible" than NIOSH has included in its rule.

2. The Role of the Advisory Board

This rule limits the role of the Advisory Board to a post-hoc review of
actions taken by NIOSH on individual petitions. Yet, Congress clearly
implied a more proactive role for the Advisory Board, including
determining the kind of information that petitioners can rely on to make
their case [See EEOICPA Section 3626 (a)(2)]. Therefore, before this

rule is promulgated, NIOSH should go back to the Advisory Board and ask
it to define what type of information—both quantitative and

qualitative — can be used by petitioners to make their case. For

instance, we can envision a board saying that qualitative information on
deficient exposure monitoring could be acceptable. Under EEOICP, an
affidavit from co-workers is sufficient proof of employment where DOE
cannot verify employment from its records. Why could not affidavits
from workers be used to determine that exposure records are sufficiently

3