MAY. 6.2083 3:29PM SEN KENNEDY LABOR POLICY NO. 737 P.4

additional information needs to be made ayailable along these lines, so that this topic can
be addressed in the final rule.

Thank you for your attention and consideration of our concems. We are looking
forward to hearing from you or your designee soon about the steps you will take to
address them. Staff members who were involved in the negotiations that led to
EROICPA are available if your staff has any questions: Robert Simon of the staff for the
Senate Committee on Energy and Natural Resources (224-9201), John Drake or Ed
Wallace of the staff of the Senate Committee on Finance (224-4515), and Holly Fechner
of the staff for the Senate Committee on Health, Education, Labor and Pensions (224-
5441).

Sincerely,

Chk Yf,

Ck)Grassley



NO. 737
MAY. 6.2883 3:28PM SEN KENNEDY LABOR POLICY

SEWARE SEH UA SEACRUBETTE GessRauAN NGS GABSG, NEY HERE nitex Stxtes Senate
COMMITTEE ON HEALTH, EDUCATION,
f wt F, AND PENSIONS
WASHINGTON, DC 20816-2309
Senstor Edward M, Kennedy's Labor Policy Office
Date; Ty 6 2005
To: er, Aone) Tbe» :
t
Fax Number: 5/3 - 433-8230 : .

From: Up,
Number of Pages (Including Cover page); if

’

Ifyou kaye any Problems receiving this fax, Please call (202) 224-5441

Message:

Pet


MAY. 6.2883 3:28PM SEN KENNEDY LABOR POLICY

NO.737 P.2

Congress of the United States
Washington, BE 20510

May 6, 2003

Dr, John Howard, Director

National Institute of Occupational Safety and Health
Department of Health and Human Services

Hubert H. Humphrey Building

200 Independence Avenue, S.W.

Room 715H

Washington, D.C, 20201

RE: NIOSH proposed rules on Special Exposure Cohorts
Dear Dr. Howard:

We are writing to express our strong ‘concern regarding the Department's
Proposed rule relating to Special Exposure Cohorts (68 Federal Register 11294 et seq.),
which has been developed by the National Institute for Occupational Safety and Health
(NIOSH) pursuant to the Energy Employees Occupational Iiness Compensation Program
Act of 2000 (EEOICPA). Two key issues in the mle deviate substantially from
Congressional intent in crafting this law. A number of us were involved in the
deliberations that led to the EEOICPA, and all of us are concerned that it be implemented
in accordance with the understanding at the time of enactment of how key features of the
Act would operate.

: Our first objection to the proposed rulemaking deals with a provision that permits

NIOSH to limit the list of “specified cancers” in a given Special Exposure Cohort to
fewer than the 22 cancers listed or incorporated by reference in the definition of
- “specified cancers” in section 3621(17) of EEOICPA. There is nothing in the statute or
in the record of Congressional deliberation that supports this change in how EEOICPA
would operate, Indeed, the legislative history clearly delineates Congressional intent that
a “fixed list” of specified cancers was intended to serve as the basis for compensation for
members of a Special Exposure Cohort, and not a variable list drawn up at the discretion
of the agency. As specifically stated in the Congressional Record for October 12, 2000
(page S10377), “Once a group of workers was placed in the category [i.e,, the Special
Exposure Cohort], it would be eligible for compensation for a fixed list of Tadiation-
related cancers,”

Those of us who participated in deliberations during the conference on the
Provisions of EROICPA fully expected that all specified cancers would apply to any
group of workers added to a Special Exposure Cohort, We would strongly urge that this
aspect of the proposed rule be conformed to the letter and spirit of the law.


MAY. 6.2083 3:26PM SEN KENNEDY LABOR POLICY NO. 737 P.3

Our second objection relates to the meaning proposed for the terms “feasible” and
“sufficient accuracy” with respect to dose reconstruction by NIOSH. The proposed mule
would take the position that it is feasible to estimate radiation dose with sufficient
accuracy “if HHS has access to sufficient information to estimate the maximum tadiation
dose that could have been incurred in plausible circumstances by any member of the
class.” We believe that this standard is inconsistent with clearly expressed Congressional
intent, The pertinent discussion in the legislative history (also from page $10377) is as
follows: .

There are several reasons why reconstructing a dose might be infeasib[le].
First, relevant records of dose may be lacking, or might not exist
altogether, Second, there might be a way to reconstruct the dose, but it
would be prohibitively expensive to do so. Finally, it might take so long
to reconstruct a dose for a group of workers that they will be all dead
before we have an answer that can be used to determine their eligibility.

This passage evidences a much broader test of feasibility, motivated by a concem
that the dose reconstruction process could become so complicated that the essential aim
of the statute (i.c., compensation) would be frustrated, We are concerned that the
standard proposed for adoption by NIOSH will result in dose reconstructions being
attempted in many of the circumstances that we sought to exclude when crafting the
statute, In particular, the final rule should clarify the use of a time limit, after which time
it would be presumed that NIOSH had determined that the “not feasible to estimate with
sufficient accuracy” standard had been met, Thus, we would urge, at a minimum, that the
rule incorporate these three factors into its definition of feasibility, and that the rule
specify parameters related to time and cost to serve as a means of considering, in a
uniform manner, the issues of excessive length of time and prohibitive cost,

In addition to these concerns that are motivated by what we see as a misreading of
the statute, we have two other concerns about the tule, 4s proposed,

First, the rule proposes that when NIOSH is able to constryct “worst case
estimates” of dose, workers will be excluded from membership in the Special Exposure
Cohort, Worst case estimates are used in a different and apparently incompatible way,
though, in the existing dose reconstruction rule (42 CF.R. § 82). Claimants should not
fall into a regulatory void between this proposed rule and the dose reconstruction Tule,
Either claimants should receive a final determination of their eligibility for compensation
under 42 C.F.R, § 82 or they should be included in the Special Exposure Cohort. The
proposed rule should clarify, as well, that § 3626 does not require a demonstration that no
“worst case estimate” can be reached for inclysion in the Special Exposure Cohort.

Second, while the proposed rule references the fact that there will be numerous
administrative processes (such as appeals), these processes are not described in any way
that can provide for informed public comment, Yet, the administrative processes will be
very important to claimants who will seek their rights under EEOICPA. We believe that

2