Los Alamos P.O.W.S.

Project on Worker Safety
Prisoners of the Cold War
P.O. Box 2791 Espanola, NM 87532
"If you don't have your health, you're not free."

April 30, 2003

NIOSH Docket Office

Robert A. Taft Laboratories, MS-C34
4676 Columbia Parkway

Cincinnati, OH 45226

RE: Procedures for Designating Classes of Employees as Members of the
Special Exposure Cohort under the EEOCIPAct of 2000

Dear Sir/Madam:

The Los Alamos Project on Workers Safety (POWS) advocates for
implementation and reform of the Energy Employees Occupational IlIness
Compensation Program Act on behalf of former and current Los Alamos
National Laboratory employees and their families. We are a project of labor
organizations, a grassroots environmental justice organization, and
numerous individuals in northern New Mexico who have never enjoyed the
benefits of union representation. Our members have testified at several
NIOSH public meetings and on telephone conference calls.

Our key concerns with the proposed rule are as follows:

1, Petitioner Status

NIOSH has used prudent criteria in determining who can file a
petition. We urge the agency to disregard the request by a major national
union to restrict this right to certified unions. Many LANL employees never
had the opportunity to become union members. Few current employees are
unionized, with several craft unions involved, We envision many
situations in which all of the potential members of an SEC are distributed
among the unorganized, as well as several different craft unions.

Los Alamos POWS advocates for the interests of all LANL employees
and their families. We deserve and demand the right to file formal petitions
for establishing SEC classes. We surmise there are similarly situated and

S
SW


Los Alamos POWS advocates for the interests of all LANL employees and
their families. We deserve and demand the right to file formal petitions for
establishing SEC classes. We surmise there are similarly situated and qualified
organizations, with long histories of constructive contributions to these issues, at
other DOE facilities.

2. Section 83.13 Represents a Violation of Congressional Intent

NIOSH must not authorize itself to reduce the number of cancers covered
by the SECs from 22 to a lesser number. This should be obvious from Senator
Jeff Bingaman’s (D-NM) remarks in the Congressional Record of October 12,
2000. Senator Bingaman, the lead Senate sponsor, was describing Congressional
intent behind the legislation that had recently been signed by President Clinton:

“We allow groups of workers to petition to be considered by the
advisory committee for inclusion in this group {SEC]. Once a
group of workers was placed in the category, it would be eligible
for compensation for a fixed list of radiation related cancers.”
(emphasis added)

Los Alamos POWS has worked closely with Senator Bingaman and his staff since
early 2000, while the legislation was still being drafted.

Section 83.13, as currently written, would thwart Congress’s clear intent.
Moreover, it is illogical. First, the EEOCIPAct specifies Special Exposure Cohorts
-- not special disease cohorts. Second, a condition for an SEC is NIOSH’s inability
to estimate a worst case dose. Once that condition has been met, we find it hard
to believe that NIOSH will be able to estimate dose for certain organs but not
others.

3. Section 83.9 Should Be Changed to Allow Information from a Variety of
Sources

As currently written, Section 83.9 would require petitioners to submit
supporting information from “scientific” agencies of the government. Use of the
word “scientific” would effectively bar the use of Congressional committee
hearings, GAO reports, DOE public meeting transcripts, oral histories collected
by university projects, and other potentially important sources of documentation
of deficiencies in radiation dosimetry.


The rule should provide an independent administrative appeals
process within HHS for petitioners after NIOSH makes a determination
under Section 83.11(b) that the petition has failed to meet the requirements
for evaluation. Without such an administrative review process, we may
have no choice but to seek judicial review in federal court. The resources for
such a review may not be readily available.

In the interest of a “claimant friendly” system, we request that Section
83,11 be amended to provide an independent review within HHS. The rule
should specify with whom the request for an appeal must be filed, the
address, the procedural requirements, and the regulations that will govern
these appeals proceedings.

5. Timelines for Initial Decision by the S ¢HHS

The rule should stipulate that the Secretary shall review recommended
decisions from NIOSH and the Advisory Board and issue a final written
determination in not more than 21 days after receipt of such materials from
NIOSH and the Advisory Board.

Claimants have already waited too long for compensation. They have
also been buffeted by prevailing political winds. Stipulating a deadline for the
Secretary's review is essential if the system is to truly become “claimant
friendly.”

6. Technical Assistance

Los Alamos POWS urges NIOSH to provide smail technical assistance
grants to assist in the development of SEC petitions. Grants would be used to
hire health physicists or other qualified professionals to assist in the
development of a technically sound petition. NIOSH should also hold several
training workshops to address the information requirements of a petition.

Sincerely,

nab M. auees Se.