Centers for Disease Control and Prevention 

National Institute for Occupational Safety and Health 

Thirteenth Meeting of the 

Advisory Board on Radiation and Worker Health 

March 14, 2003 

Meeting held by telephone conference 

Summary Minutes
NIOSH/CDC Advisory Board on Radiation and Worker Health Summary Minutes March 14, 2003

Advisory Board on Radiation Worker Health

National Institute for Occupational Safety and Health 

Department of Health and Human Services 

The Advisory Board on Radiation and Worker Health (ABRWH) convened a teleconference to 

discuss “Rule Making on Procedures for Designating Classes of Employees as Members of the 

Special Exposure Cohort” (SEC, 42 CFR Part 83) under the Energy Employees Occupational 

Illness Compensation Program Act (EEOICPA), a rule-making by the National Institute for 

Occupational Safety and Health (NIOSH). The Advisory Board on Radiation Worker Health 

ABRWH is the Board charged to advise the Secretary of Health and Human Services on matters 

relating to the EEOICPA process. 

These summary minutes and a verbatim transcript are available on the Internet at the 

NIOSH/Office of Compensation Analysis and Support (OCAS) web site located at 

www.cdc.gov/niosh/ocas. 

Those present for the telephone conference included the following: 

ABRWH members:

Paul L. Ziemer, Ph.D., Chair 

Henry A. Anderson M.D. 

Antonio Andrade, Ph.D. 

Roy L. DeHart M.D., M.P.H. 

Richard L. Espinosa 

Michael H. Gibson 

Mark A. Griffon 

James M. Melius, M.D. 

Wanda I. Munn 

Leon Owens 

Robert W. Presley 

Genevieve S. Roessler, Ph.D. 

Designated Federal Official: Larry J. Elliott, M.S.P.H., C.I.H., Executive Secretary 

Federal Agency representatives: 

 Department of Health and Human Services: 

C Office of General Counsel: David Naimon, Liz Homoki-Titus 

C CDC Committee Management: Cathy Ramadei, Renee Ross 

C NIOSH: Stu Hinnefeld, Cori Homer, Ted Katz, Jim Neton, Dave Sundin 

Department of Labor 

C Jeff Kotsch, Rose Toufexis 

Summary Minutes of the Thirteenth Meeting 

March 14, 2003 
NIOSH/CDC Advisory Board on Radiation and Worker Health Summary Minutes March 14, 2003

Members of the public: 

* Terrie Barrie, wife of a sick worker 

* Filimon Casados, LA POW 

* Kevin Dougherty, Alaska District Council of Labor, Anchorage 

* Gaylon Hanson, Idaho National Environmental and Engineering Laboratory (INEEL) 

* Sylvia Kieding, PACE union 

* Epifania Jatcuec, survivor 

* Gerry Leyba, LA POW, Los Alamos National Laboratory (LANL) 

* Mark Lewis, PACE, 

* Richard Miller, Government Accountability Project 

* Ted Silver, LA POW 

* Bob Schofield, LA POW 

* Bill Field, University Iowa College of Public Health 

* Betty Jean Shinas 

* Bob Tabor, Fernald Atomic Trades Labor Council 

* Tim Takaro, University of Washington 

ABRWH Chair Dr. Paul Ziemer convened the teleconference at 1:05 p.m. 

Public Comment 

Dr. Ziemer requested public comment before the Board’s discussion began, so that they could be 

considered during the Board’s deliberations. 

In addition to the items summarized below, all the respondents indicated they had heard that 

NIOSH had stricken 21 of the 22 cancers specified as compensable under the EEOICPA, and 

could limit the cancers claimed whether or not they are one of the 22. This issue was one of 

concern to all who commented. 

Ms. Barrie said Congress’ intent for EEOICPA is plain: if a worker develops cancer, NIOSH 

will attempt a dose reconstruction; if they cannot do the latter, the worker can petition to become 

a member of the SEC. She asked that those interested in this rule be provided with more time to 

review all the related materials provided. 

Ms. Shinas spoke on behalf of the claimants and her husband, a Department of Energy (DOE) 

worker, had died of esophageal cancer. She did not feel that the affected families were being 

compensated and stated that the burden of proof is on those families. 

Mr. Leyba stated that NIOSH is creating a disease, rather than exposure cohort. The latter’s 

point is to provide a remedy for those workers who were not properly monitored by DOE. He 

felt that NIOSH is not treating workers equitably or following Congress’ instructions to address 

the 22 specified cancers. Mr. Lewis agreed. 

Ms. Jatcuec stated that the compensation process, which was intended to be claimant friendly, is 

not. She asked for another meeting in Santa Fe with NIOSH to discuss these issues face to face, 

and demanded that NIOSH throw out the current proposal as unfair, cruel, and evil. 
NIOSH/CDC Advisory Board on Radiation and Worker Health Summary Minutes March 14, 2003

Mr. Casados had recently been confirmed as having beryllium sensitivity. He wanted 

recognition by the representatives in Congress as well as in the state of New Mexico. 

Mr. Schofield stated that there would likely not be adequate records to show what everyone was 

exposed to. Persons at Los Alamos could have been exposed to multiple elements and NIOSH 

will not know what isotopes/elements a person had been exposed to over their career. 

Ms. Kieding noted that the PACE union conducts a Worker Health Protection Program for 

former and current workers at the three gaseous diffusion plants (GDP) cited by EEOICPA and 

at the Idaho National Environmental and Engineering Laboratory (INEEL). She expressed 

concern that the three GDPs are part of the SEC, but Idaho is not. She also hoped that the Rule’s 

comment period would be extended to allow more input. 

Mr. Takaro asked about NIOSH’s basis for choosing particular cancers over others, thinking that 

they were based on the radioepidemiological tables, and asked if NIOSH had adopted other 

criteria for identifying radiogenic cancers. 

Dr. Ziemer commented that, although there may be differences of opinion over the law’s intent, 

both the Board and NIOSH are required to and will follow the law. Mr. Elliott stated that the 

administration and other agencies, rather than DHHS, have been part of the development of this 

rule. While at this point in the rule making, the agencies cannot discuss it, he could state 

categorically that the rule does not say that one particular cancer will be assigned. What it does 

imply is that this is an option for NIOSH to use if that makes the most sense for a given exposure 

scenario. That does not mean that this will be done in every case and the whole list will be used 

in the definition of the class. 

Mr. Naimon added the rule is not illegal in any sense and does not change the Act’s list of 

cancers. The rule making can not change the statute; only Congress and the President can do 

that. 

Board Discussion 

Dr. Ziemer pointed out that this rule is proposed, not final. NIOSH is required to take comments 

from the public, the Board and other agencies, as they were doing in this call. But they also are 

under time pressure because by law the SEC rule making must be complete before anything 

further can be done, including identifying any others who should be in an SEC other than those 

identified by Congress. The 30 day comment period reflects that reality. He closed the comment 

period at this point. 

Several Board members expressed surprise and concern at the expressed perception by members 

of the public that this rule making would eliminate 21 of the 22 cancers established as 

compensable. That was untrue. In fact, the proposed rule gives the ABRWH options to define 

classes with cancers not so listed, although that did not guarantee that those would be 

compensable. Mr. Gibson noted the public point that, if NIOSH cannot determine the dose from 
NIOSH/CDC Advisory Board on Radiation and Worker Health Summary Minutes March 14, 2003

particular isotope, how would they know that there were not other isotopes that people were 

exposed to that could cause other cancers? 

For those who did not have the changes suggested since the last meeting, NIOSH e-mailed or 

faxed them. They also were read aloud to allow the public to hear them, as well. 

Review of 42 CFR Part 83 

The review began with the first section of this document. Although informational and not part of 

the rule itself, clarifications were provided. 

Introduction 

 Clarifications and changes suggested by Ms. Munn were: 

• Section III, Summary of Public Comments, Item B, next to last paragraph: beginning with 

“The Health Physics Society further recommended:...” NIOSH was asked to clarify the 

syntax of the last sentence: “Hence, it may be appropriate to limit the finding ... with specific 

types of cancers.” 

• Section IV, Recommendations of the ABRWH, Item H. Recommendation for Section 83.10: 

the second sentence of paragraph 1 should be changed to read “The Board would review each 

petition “for which” (changed from “that”) DHHS proposes to deny.......” The Board 

AGREED 

• Section IV, Recommendations of the ABRWH’s, Item A, paragraph 3, Sentence 2, beginning 

with “If the employee had sufficient radiation exposure outside of his work experience as a 

member of the cohort...” This could be misinterpreted to include medical or environmental 

exposures outside the work environment. Insert “occupational” between “sufficient” and 

“radiation.” AGREED

Changes suggested by Mr. Griffon: 

• Section III, Summary of Public Comments, Item B, Accuracy of Dose Reconstruction; 

change the sentence beginning “Hence, for the purposes of a compensation program... at least 

as high as the highest dose that the cohort could have received,” to read: “reasonably certain 

to be no greater than the highest dose than the cohort could have received.” AGREED

Subparts A (Introduction) and B (Definitions) 83.5 produced no further comments. 

Subpart C: Procedures for Adding Classes of Employees to the Cohort 

Sections

83.1: No comment 

83.2: No comment 

83.5, Definition, Item C; Class of Employees: Mr. Espinosa had questioned at the last meeting 

if multiple facilities could be included, so the class could cross facilities. As now written, this is 
NIOSH/CDC Advisory Board on Radiation and Worker Health Summary Minutes March 14, 2003

limited to employees “at the same DOE/AWE facility;” that is, a single facility. Mr. Katz 

reported that the statute limits NIOSH to prescribing a class of employees to a single facility. 

DHHS is talking to the Department of Labor (DOL) to clarify what will be defined as a 

“facility,” since the EEOICPA does not specify. The Board’s discussion included the following: 

C This is critical and needs to be clearly defined in the rule as well in the introduction. It 

poses strong implications to several possible claim scenarios. For example, 1) big sites 

such as the INEEL have several large sub-sites, or facilities, dealing with different 

operations and radioisotopes; 2) persons were transferred (or, as in the building trades, 

worked) between “facilities” that dealt with different isotopes; and 3) one building could 

house work on different types of operations/radioisotopes, which should be defined 

distinctively. 

C EEOICPA defines “facility” as “... any building, structure, or premise, including the land 

upon which such building, structure or premise is located.” But this is still broad, and 

could identify individuals who worked in particular part of a site (whether outdoors or 

inside) as opposed to another part that was never exposed to radioactivity. 

C The dictionary definition of “premise” is “a tract of land with the buildings thereon; a 

building or part of buildings.” 

C Dr. Andrade stated that the definition of facility should be based on/tied to the operation 

and the radioisotopes involved. 

The question was posed, since many workers on site could have worked with different isotopes 

over time, consecutively, does that preclude someone from being under one or more SECs, or are 

all doses under one SEC? Such a person’s multiple facilities and opportunities would have to be 

defined under the SEC. But each would relate to a separate class, and not be combined to 

achieve the 250 days of exposure required (e.g., 125 days in one facility and 125 days in another; 

or with a dose that could not be calculated for one portion of the 250 day criterion). 

Mr. Katz said that, where a dose reconstruction can be done, those days in that window of time 

in that location would not be added into the class. But their experience outside of that window 

would be irrelevant as far as their membership in the cohort is concerned, since the cohort only 

applies to periods in which a dose reconstruction cannot be done. And, if a person was placed in 

a cohort but did not have a compensable cancer, they would still come to NIOSH for a dose 

reconstruction because they cannot be compensated for other than those 22 cancers. All their 

other doses would be calculated, but the question of what to do with the unknown dose that put 

them in this SEC cohort was still open. 

Dr Ziemer asked the Board if NIOSH should be charged to define “facility?” Responses were: 
NIOSH/CDC Advisory Board on Radiation and Worker Health Summary Minutes March 14, 

2003

C This definition is important. If overly restrictive, it could affect how the rule is 

implemented. This could be seen very broadly, using “class” as way to define the 

group that may work at a certain part of that facility or at smaller facilities on site. 

The Act’s definition could be an entire site; individual definitions of “facility” 

may be needed. 

C The DOL regulation (30.214 Sec B) states that the 250 work day requirement of 

the existing SEC may be aggregated for days of service at the GDP plants, so the 

DOL has already interpreted that the SEC exposure periods could be combined. 

However, Mr. Naimon pointed out that the DOL’s SEC definition differs from the 

one under discussion. 

Finally, it was agreed that NIOSH should frame the question for discussion in another 

conference call to be held in two weeks. This could indicate the parameters to be 

incorporated into the definition; or they could provide a sample in keeping with the 

definition in the law. Drs. Melius and Andrade offered to also craft something for the 

next meeting. Dr. Andrade felt that aggregating the days to qualify for an SEC should be 

allowed. 

It was also agreed that, if a dose reconstruction can be performed, but not for another 

class of workers that lacks sufficient data, the process should be flexible enough to 

consider them. There were no other comments except to note that all 22 cancers are still 

present in 83.5, Sec K, Specified Cancer. 

83.6: Overview of Procedures: No comment. 

83.7: Who Can Submit a Petition: No comment. 

83.8: How a Petition Is Considered. The Board requested that section on ABRWH 

comments in the Introduction include praise for NIOSH for making the changes 

requested, as done in this section. AGREED

83.9 Information the Petition Must Include. 

Item C.2.iii: Mr. Griffon suggested the following to clarify this section: “A report from a 

health physicist or other individual with expertise in dose reconstruction describing 

(rather than “documenting”) the limitations of DOE or Atomic Weapons Employer 

(AWE) records on radiation exposures at the facility, as relevant to the petition. This 

report should specify the basis for believing (rather than “finding”) the stated limitations 

might prevent the completion of dose reconstructions for members of the class under 42 

CFR Part 82 and related NIOSH technical implementation guidelines; or ...." 

Mr. Griffon moved to recommend this new language to NIOSH to replace the 

previous text. Dr. Andrade seconded the motion. Dr. Ziemer noted that this was a 

conditional approval, since further refinement is possible on the next conference call. 

The motion was unanimously passed.
NIOSH/CDC Advisory Board on Radiation and Worker Health Summary Minutes March 14, 

2003

Item C.2.i: Dr. DeHart had suggested during the last Board meeting to amend the 

existing paragraph, inserting “scientific or technical” in front of “report, published by a 

“governmental (delete ‘scientific’) agency;” and deleting the last phrase beginning with 

”and also find” and inserting “dosimetry and related information that is otherwise

unavailable.” Dr. Ziemer suggested a friendly amendment to change the phrase 

“scientific or technical report published “or issued” by a governmental agency.” Then, 

since “otherwise” implied that this report has the information needed to do the dose 

reconstruction, when it is in fact not available anywhere, the term “otherwise” was 

dropped. A final grammatical edit was to make “is” unavailable to “are” unavailable. 

AGREED

83.9, Petition Information; Section C.2, introductory paragraph: Mr. Griffon suggested 

inserting after “petitioner’s basis for believing...”, “DOE or AWE records may be 

inadequate”, in order to remain consistent with the paragraph just approved by the Board. 

However, he agreed to reconsider this, since the broader current wording is not limited to 

those agencies’ lack of information. 

Paragraph 3: Dr. Melius suggested moving to 83.11, or to a separate section, the text on 

the process for evaluating the information required for such exposure incidents in the 

event that “NIOSH is unable to obtain records or confirmation...” This refers to 

information required after the petition has been evaluated by NIOSH. Upon Dr. Ziemer’s 

comment that this could be interpreted that NIOSH reconsider even having it in the 

document, Dr. Melius amended that to “... that NIOSH consider changing the placement 

of this section within the regulation...” AGREED

Public comment 

(Chairman Ziemer permitted a member of the Public, who had just entered the conference 

call, to provide comments at this point.) Mr. Hanson, who is the Health and Safety 

representative at the INEEL, expressed two areas of concern. One was that the INEEL 

Chemical Processing Plant had the same exposures as the GDP at Paducah, whose 

workers are in the present SEC. The other was to request that special consideration be 

given to any worker at the INEEL’s SL-1 facility who may have filed a claim, since they 

may have received a high short-term dose during an explosion there. 

Continued Document Review 

The Board then continued its review of Dr. Melius’ suggested changes to the rule 

document. 

83.9, Petition Information; Witness Affidavits: Dr. Melius suggested text to clarify that 

if the employee claimant witnessed the incident, that s/he would count as one of the two 

witnesses whose affidavits are needed to confirm the exposure not otherwise 

documented. Dr. Andrade moved to adopt and to recommend to the Secretary this 

text as provided. Dr. Melius seconded the motion, which Dr. Ziemer again, noted, could 

be changed if necessary in the next call. 
NIOSH/CDC Advisory Board on Radiation and Worker Health Summary Minutes March 14, 

2003

In discussion, it was clarified that the “employee” could work for a contractor or subcontractor. Ms. Munn expressed her own lingering concerns over the concept of 

requiring only one corroborating statement, although she understood that in some 

instances even that would be difficult to get. Flexibility is needed on the number to 

corroborate, considering the 50-year time period involved. Mr. Gibson and Mr. Presley 

also pointed out that the buddy system often had only two people working together; the 

three-man rule did not begin until the 1990s. The Board unanimously approved the 

motion. 

New item, or “iii”: When the evidence suggests that an event occurred years ago, but a 

survivor petitioner cannot find witnesses (due to death or difficulty to identify or locate), 

Dr. Melius suggested recommending that NIOSH “... offer the option for other parties to 

submit confirmation of the incident in the absence of available witnesses or records. For 

example, affidavits from the widows of three employees who may have been involved in 

exposure incidents would be acceptable if those widows recall similar reports from their 

spouses about the exposure incident at the time that it occurred.” 

Mr. Espinosa moved to accept the recommendation as stated and Mr. Owens seconded 

the motion. Dr. Roessler raised gender concerns in a friendly amendment, and the Board 

agreed to replace “widows” with “eligible survivors.” Subsequently, Dr. Melius 

suggested the motion be limited to the first three sentences, since he had offered the 

example just for the Board’s consideration. Mr. Espinosa and Mr. Owens agreed. The 

motion was now: 

“The Board is also concerned that a petitioner may have difficulty finding 

witnesses for an exposure incident that occurred many years ago. Witnesses may 

no longer be living or may be difficult to identify or locate. In such a case, the 

Board recommends that NIOSH offer the option for other parties to submit 

confirmation of the incident in the absence of available witnesses or records.” 

The Board unanimously accepted the motion. 

83.10: No comments. 

83.11 (b): There was a question at the last meeting about whether a claimant could 

appeal a NIOSH final decision that s/he has not met the requirements for evaluation, and 

if so to whom. This question also pertained to the preamble. 

The opinions expressed in discussion were: 

C In the present process, the petitioner petitions; NIOSH notifies them of the 

deficiency and assists the petitioner to meet the requirements. It is then 

resubmitted and reviewed within 30 days. If it is decided that it still does not 

meet the requirements, it is turned down again. The Board had previously agreed 

that two applications are adequate. 

C Dr. Melius felt that the petitioner should have the right of appeal to DHHS if they 

feel they have been treated unfairly by NIOSH. However, section (c) notes that if 
N/J

~

there is new information, NIOSH may reconsider the petition and the petitioner

can return.

Mr. Espinosa also advocated for an appeal process, having particular concern

about petitioning survivors' potential trouble in getting new infonnation to allow

them to file an appeal. Others noted that the appeal also relates on the adequacy

of the petition to even be considered (i.e., it is an unevaluated petition); and that

currently, the same "umpire (NIOSH) delivers the two strikes". The question is

whether there should there be another avenue of appeal if the petitioner has no

access to other infonnation.

Since the Board cannot mandate how the agency conducts its appeals and is not

an adjudicatory entity; and since this is a complex issue of some public concern,

some members felt that another forum in which to address such complaints was

needed. On the other hand, the more other entities that are involved, the less

likely they are to have the expertise ofNIOSH or this Board in making these

kinds of judgements. The provision of new information was felt by some to be

fair enough. At some point, "no is no". The process must be practical and careful

not to raise unreasonable expectations.

Due to time constraints, Dr. Ziemer tabled this issue to the next conference call. It was

agreed to reconvene on April 4 from 1-4 p.m. EST. The date was based in part on the 30-

day limit on the comment period. DHHS had not yet decided on the Board's request to

extend the latter by 15 days, so an April 7 postmark was still required for comments to be

accepted. Only Dr. Roessler reported an inability to attend that call. A subsequent

conference call may be held on April 28th from 2-5 p.m. EST. The discussion on April 4

will begin from Section 83.11. The Board members were asked to send their

recommendations to Ms. Homer to distribute in enough time for all the Board members'

review beforehand.

Additional public comment was deferred to the next call. Mr. Field asked if comments

could be submitted as part of public record without waiting for the next call, and

Dr. Ziemer said yes. They should be sent to him at the NIOSH address on their Website.

He then thanked all for their time, and the teleconference adjourned at 4:05 p.m.

I hereby certify that to the best of my knowledge, the foregoing minutes are accurate.

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