Miller, Diane M.

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NOISH12-3-01.doc

William Slattery [whslattery@yahoo.com]
Tuesday, December 04, 2001 3:10 PM
niocindocket@cdc.gov

Comment on Proposed 42 CFR 81

The attached comment letter is being submitted on
behalf of Atlantic Legal Foundation, 205 East 42nd
Street, New York, NY 10017;tel.:(212)573-1960.
Sincerely, W.H. Slattery, President.

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ATLANTIC LEGAL FOUNDATION
205 East 42" Street, Ninth Floor
New York, NY 10017
(212) 573-1960
December 4, 2001
NIOSH Docket Office
Robert A. Taft Laboratories
M/S C34
4676 Columbia Parkway
Cincinnati, OH 45226
Re: — Energy Employees Occupational Illness .
Compensation Program Act of 2000 (“EEOICPA”);
Proposed Regulations — 42 CFR Part 81
Federal Register 50967 et seq., October 5, 2001,
(the “Proposed Guidelines”)
Dear Madam/Sir:

We submit this letter of comment on the Proposed Guidelines as solicited by the Notice of
Proposed Rulemaking appearing in the Federal Register on October 5, 2001.

Atlantic Legal Foundation is a nonpartisan, nonprofit public interest law firm which has a
long history of promoting the use of sound science in litigation in Federal and state courts and by
Federal and state administrative agencies.

ALF’s particular interest in the Proposed Guidelines arises from the concern that the
Proposed Guidelines, without the changes here proposed, may be misused in civil litigation not
involving the compensation scheme for Government workers (and certain employees of Government
contractors) who may have been exposed to radiation in the course of their employment in an attempt

to prove that a particular cancer was caused by radiation, or by a particular level of exposure to

radiation. Government reports, statements and data compilations benefit from an exception to the



hearsay rule which facilitates their admission into evidence in Federal courts and those state courts
which have adopted a rule patterned on Rule 803 (8) of the Federal Rules of Evidence.

The Proposed Guidelines should not be applied in civil litigation because, as noted by
Chauncey Starr in his comment of November 26, 2001, the Probability of Causation model used in
the Proposed Guidelines does not account for an exposure level below which no occupational illness
will occur and because the assumed Linear No Threshold extrapolation to zero does not represent a
scientific consensus, and has no experimental foundation. See R.Wilson, “Probability of Causation:
its Use in Compensation Schemes,” Nuclear News, June, 2001; see also J. Beyea and S. Greenland,
“The Importance of Specifying the Underlying Biologic Model in Estimating the Probability of
Causation,” Health Physics, 76:269-274 (1999).

While the Congress can, of course, make a policy choice to compensate whomever it
chooses, whether or not their exposure has resulted, or is likely to result, in cancer, this approach
should not be the basis of imposing liability on private parties, and may perpetuate an exaggerated
public fear of the effects of radiation at any level, no matter how small. The Proposed Guidelines
should not imply that the radiation actually caused the cancers for which the Guidelines provide
compensation.

The final rule and the Proposed Guidelines should explicitly state that they are not to be used
in any way in civil litigation as proof of fault, or as establishing any standard for proof of causation,

other than in situations expressly contemplated by EEOICPA.

Sincerely,

William H. Slattery
President