I. Introduction

The Energy Employees Occupational IlIness Compensation Program Act of 2000
(EEOICPA), 42 U.S.C. § 7384-7385, authorized a compensation program to provide a
lump sum payment of $150,000 and prospective medical benefits to qualified covered
employees suffering from designated illnesses incurred as a result of their exposure to
radiation, beryllium, or silica while in the performance of duty for the Department of
Energy (DOE) and certain of its vendors, contractors, and subcontractors. This
legislation also provided for payment of compensation for certain qualified survivors of
these covered employees. The Department of Labor (DOL) has primary responsibility
for administering this compensation program, assisted by the Department of Health and
Human Services (HHS), DOE, and the Department of Justice. DOL began accepting
claims for compensation under EEOICPA in July 2001.

EEOICPA required the establishment of a radiation dose reconstruction program to
estimate the radiation doses of most cancer claimants. These dose estimates are used by
DOL to determine if the employee’s cancer was at least as likely as not related to
performance of his or her duty at a DOE facilily or an Atomic Weapons Employer
(AWE) facility. Within HHS, the Centers for Disease Control and Prevention’s National
Institute for Occupational Safety and Health (NIOSH) conducts the radiation dose
reconstructions for cancer claims for which EEOICPA requires dose reconstructions.
NIOSH develops these dose reconstructions based on information obtained from DOE.
DOL, EEOICPA claimants, and other sources. Once completed, NIOSH transmits the
dose reconstruction to DOL for use in making a final decision on the claim.

EEOICPA defined a category of employees as the Special Exposure Cohort (“the
Cohort”), under 42 U.S.C. § 7384/(14). As defined by Congress, the classes of
employees that comprise this initial Cohort include DOE employees, DOE contractor or
subcontractor employees who were (1) employed an aggregate of at least 250 work days
before February 1, 1992, at a gaseous diffusion plant in Paducah, Kentucky, Portsmouth,
Ohio, or Oak Ridge, Tennessee, and who were monitored using dosimeter badges or
worked in a job that had exposures comparable to a job that is or was monitored using
dosimeter badges; or (2) employees of DOE or DOE contractors or subcontractors
employed before January 1, 1974, on Amchitka Island, Alaska and exposed to ionizing
radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin
underground nuclear tests. Employees included in the Cohort who incur a specified
cancer’ qualify for compensation without the requirement that DOL evaluate the
probability that the cancer was related to radiation doses received during the performance
of duty for nuclear weapons programs of DOE, as is required for other cancer claims
covered by EEOICPA.

EEOICPA authorized the President to designate additional classes of employees to be
included in the Cohort, while providing Congress with the opportunity to act on these

! Specified cancers are a limited group of cancers that EEOICPA specifies are compensable under
provisions governing compensation for members of the Cohort. Although the list of specified cancers is
determined by statute, the list can also be found at 42 CFR. § 83.5


00012

7121104

Mallinckrodt Chemical
Company

A Secretarial designation of
the class of employees who
worked 1942 — 1948 became
effective on May 12. 2005.

On October 7, 2005, the
Secretary transmitted to
Congress a designation of the
class of employees who
worked May, 1948 — March,
1949. This designation will
become effective on
November 7, 2005

00013

7130/04

Oak Ridge Gaseous
Diffusion Plant (K-25)

Closed (class already included
in the Cohort)

00014

8/12/04

IAAP.

Combined with 00006

00015

8/20/04

IAAP

Combined with 00006

00016

9/2104

K-25

Closed (class already included
in the Cohort)



professionals, information provided by the Department of Energy, and such other
information as the Advisory Board considers appropriate” (42 U.S.C. § 7384q(a)(2).
Section 7384q(a)(3) specifies that HHS obtain the advice of the Board “after
consideration of petitions by classes of employees ... for such advice.” Section 7384q(b)
mandates two broad criteria to govern HHS decisions, which are to be made after
receiving the advice of the Board. Members of a class of employees at a DOE facility or
AWE facility may be treated as members of the Cohort for purposes of the compensation
program if HHS “determines that:

(1) It is not feasible to estimate with sufficient accuracy the radiation dose that the
class received; and

(2) there is a reasonable likelihood that such radiation dose may have endangered
the health of members of the class.”

Finally, 42 U.S.C. § 7384/(14)(C)(ii) requires the Secretary to submit a report to
Congress for each class of employees the Secretary designates to be added to the Cohort.
The report must define the class of employees covered by the designation and specify the
criteria used to make the designation. This section, as amended by the Ronald W.
Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375
(codified as amended in scattered sections of 42 U.S.C.), requires that the designation
take effect 30 days after the date upon which HHS submits the report to Congress “unless
Congress otherwise provides.”

Procedures under 42 C.F.R. pt. 83

As indicated above, HHS promulgated a final rule on May 28, 2004, to explain the
procedures the Secretary will follow in making a determination of whether or not to add a
class to the SEC, 42 C.F.R. pt. 83, Procedures for Designating Classes as Members of the
SEC Under EEOICPA; Final Rule. The procedures are briefly summarized below:

1. Petitioner(s) file a petition, providing information as specified in the petition
instructions about the petitioner(s) and the basis of the petition.

2. NIOSH determines if the submission qualifies as a petition, providing assistance to the
petitioner(s) to address the requirements. Petitions are closed only after comprehensive
consultation with petitioners.

3. NIOSH evaluates a qualified petition by collecting information on the types and levels
of radiation exposure that potential members of the class may have incurred from a
variety of sources.

4. NIOSH submits a report of evaluation findings to the Board and the petitioner(s).

5. The Board considers all information received, including comments by the public, and
makes a recommendation to the Secretary.

6. The NIOSH Director proposes a decision to the Secretary.

7. The Secretary makes a final decision to add or to deny adding a class to the Cohort
and reports to Congress as necessary.

8. A designation by the Secretary adding a class to the Cohort will take effect 30
calendar days after the report is submitted to Congress, unless Congress otherwise


decisions. On December 7, 2000, the President issued Executive Order 13179, which
delegated his authority in this matter to the Secretary of HHS (“the Secretary”). On

May 28, 2004, HHS issued a final rule to establish the procedures by which the Secretary
will determine whether to add new classes of employees from DOE and AWE facilities to
the Cohort (42 C.F.R. pt. 83).

Section 3167 of the Ronald W. Reagan National Defense Authorization Act for Fiscal
Year 2005, Pub. L. No. 108-375 (codified as amended in scattered sections of 42 U.S.C.)
provides as follows:

Sec. 3167. EMERGENCY SPECIAL EXPOSURE COHORT MEETING AND
REPORT

(a) MEETING OF ADVISORY BOARD. --

(1) For purposes of carrying out section 3626 of the Energy Employees
Occupational II]ness Compensation Program Act of 2000 (42 U.S.C. 73844), the
President shall require the Advisory Board on Radiation and Worker Health to
convene a meeting of the Board at which the Board considers each petition for
designation as members of the Special Exposure Cohort —

(A) that was filed not later than October 1, 2004; and

(B) the evaluation of which (by the Director of the National
Institute of (sic) Occupational Safety and Health) was completed more than 10
days before a previously scheduled meeting of the Board.

(2) Effective March 1, 2005, this subsection shall have no further force or
effect.

(b) REPORT TO CONGRESS. - Not later than March 15, 2005, the
President shall submit to Congress a report on the status of the petitions referred
to in subsection (a). The report shall include, for each petition, the estimated time
to complete the consideration of that petition and any anticipated actions or
circumstances that could preclude the Board from acting upon that petition before
the end of fiscal year 2005.

This report summarizes the procedures for designating classes of employees as members
of the Cohort under EEOICPA, provides status information on the petitions filed not later
than October 1, 2004, estimates the time required to complete the consideration of each
petition, and discusses actions or circumstances that could preclude Advisory Board on
Radiation and Worker Health (“the Board”) action on each petition before September 30,
2005.

II. Summary of Procedures for Designating Classes of Employees as Members of
the Cohort under EEOICPA

Statutory Requirements

The Board shall provide advice to the President (delegated by Executive Order 13179 to
the Secretary) concerning the designation of additional classes as members of the Cohort.
The Board’s advice is to be based on “exposure assessments by radiation health


ILl. Status of petitions filed not later than October 1, 2004

Eleven petitions were filed on or before October 1. 2004:
petitions is shown in the following table.

. The status of each of these

Petition #

Date Received

Site

Status

000067

6/15/04

Iowa Army Ammunition
Plant (LAAP)

A Secretarial designation of
the class of employees who
worked March 1949-1974 at
IAAP’s Line 1 became
effective on June 19, 2005.
(The Board and NIOSH determined
that a class would not be added for
the Line 1 employees who worked
June 1947-May 1948, due to a lack
of radioactive materials.)

On August 25, 2005. the
Secretary transmitted to
Congress a designation of the
class of employees who
worked at IAAP from May
1948 to March 1949 as
radiographers; this designation
became effective on
September 24, 2005.

00007

6/22/04

IAAP.

Combined with 00006

00008

712104

Los Alamos National
Laboratory

Closed (petition withdrawn by
petitioner)

00009

716104

Hanford

Closed (petition requirements
not met)

00010

7115104

Paducah Gaseous
Diffusion Plant

Closed (petition requirements
not met)

00011

72/04

Multiple sites

Closed (petitioner did not
complete the submission)

? Prior to the issuance of the final rule that established guidelines for designating classes of employees as
members of the Cohort under EEOICPA (42 C.F.R. pt. 83) on May 28. 2004. NIOSH received some
materials from claimants and other individuals that NIOSH determined may have been submitted with an
intent to request the addition of individuals or classes of employees to the Cohort. After publication of the
tule, NIOSH contacted each of these. individuals, provided information on the petitioning process, and
requested that they notify NIOSH if they considered the document they had submitted to be a petition that
NIOSH should review. Petition numbers 00001-00005 were assigned to these pre-rule submissions. A
new petition number was assigned if those individuals requested that NIOSH proceed with an evaluation of
the documents they had submitted (or if they resubmitted their petition).



THE SECRETARY OF HEALTH AND HUMAN SERVICES
WASHINGTON, D.C. 20201

NOV 15 2005

The Honorable Richard B. Cheney
President of the Senate
Washington, D.C. 20510

Dear Mr. President:

I am pleased to transmit to Congress the enclosed report on the status of petitions for
designating classes of employees as members of the Special Exposure Cohort under the Energy
Employees Occupational IlIness Compensation Program Act of 2000 (EEOICPA), as required by
the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law
108-375). Your continued support in this critical area of occupational safety and health is greatly
appreciated.

Sincerely,

0. ee ae

Michael O. Leavitt

Enclosure


1949 to 1957 — On September 15, 2005, the Board recommended that the Secretary
should designate the class as an addition to the Cohort. Upon receipt of the
recommendation, the Secretary will have 30 days to make a decision on whether to add
the class.

Vv. Actions or circumstances that could preclude Board action before the end of
Fiscal Year 2005

The Board completed all action on September 15, 2005.

VI. Conclusion

Eleven petitions were filed with NIOSH on or before October 1. 2004. Five of these
petitions (representing two sites) qualified for evaluation. NIOSH evaluated the qualified
petitions and submitted reports to the Board at February, April, July, and August Board
meetings. The Board completed actions on all the petitions on September 15, 2005.


IV. Estimated time to complete the consideration of petitions filed not later than
October 1, 2004

The Board has submitted recommendations to the Secretary concerning certain
employees of two petitions. NIOSH submitted evaluation reports for the five qualified
petitions to the Board, and the Board considered the petitions, the NIOSH evaluation
reports including supplements, and views and input from the petitioners. Actions taken
by the Board on the petitions representing these two sites are summarized below:

Board Actions — IAAP (SEC Petitions 00006, 00007, 00014, and 00015)

[Initial proposed class definition: Locations — Line 1 (which ineludes Yard C, Yard G,
Yard L, Firing Site Area, Burning Field “B”, and Storage Sites for Pits and Weapons
including Buildings 73 and 77); Job Titles and/or Job Duties — All Technicians
(Laboratory, Health Physics, Chemical, X-ray, etc.), Production Personnel (hourly and
salaried), Engineers, Inspectors, Safety Personnel, Physical Security Personnel, and
Maintenance Persons. Period of employment — 1947-1974.]

June 1947 to May 1948 - On May 17, 2005, the Board recommended to the Secretary
that this class not be designated as an addition to the Cohort because no radioactive
materials were present at the facility during this period. The Secretary concurred with
the Board’s recommendation on May 20. 2005.

May 1948 to March 1949 — On July 26, 2005, the Board recommended that the
Secretary should designate the class as an addition to the Cohort; on August 25, 2005, the
Secretary designated the class as an addition to the Cohort in a report to Congress. The
Designation became effective on September 24. 2005.

March 1949 to 1974 — On May 17, 2005, the Board recommended that the Secretary
should designated the class as an addition to the Cohort; on May 20, 2005, the Secretary
designated the class as an addition to the Cohort in a report to Congress. The
Designation became effective on June 19, 2005.

Board Actions — Mallinckrodt Chemical Company (SEC Petition 00012)

[Initial proposed class definition: Locations — All locations in the Destrehan Street Plant,
St. Louis, Missouri; Job Titles and/or Job Duties - All employees that conducted Atomic
Energy Commission (AEC) work at the Destrehan Street Plant. Period of employment —
1942-1957.]

1942 to 1948 - On March 11, 2005, the Board recommended that the Secretary should
designate the class as an addition to the Cohort; on April 11, 2005, the Secretary
designated the class as an addition to the Cohort in a report to Congress. This
designation became effective on May 12, 2005.


provides. After either expiration of the Congressional review period or action by
Congress, the Secretary transmits to DOL and the petitioner(s) a report that defines the
class and cither the addition of that class to the Cohort or the result of any action by

Congress on the Secretary’s decision. This report is published on the internet and in the
Federal Register.


Executive Summary

This report responds to Section 3167(b) of the Ronald W. Reagan National Defense
Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375 (codified as amended in
scattered sections of 42 U.S.C.), which required the National Institute for Occupational
Safety and Health (NIOSH) to report on the status of petitions for designating classes of
employees as members of the Special Exposure Cohort (“the Cohort”) under the Energy
Employees Occupational Illness Compensation Program Act of 2000 (42 U.S.C. § 7384-
7385) that were filed not later than October 1. 2004. The report includes a summary of
the procedures for designating classes of employees as members of the Cohort,
information on the current status of each petition, an estimate of the time needed to
complete the consideration of each petition, and a discussion of actions or circumstances
that could preclude the Advisory Board on Radiation and Worker Health (“the Board’)
from acting upon a petition before the end of fiscal year 2005 (September 30, 2005).

Eleven petitions were filed with NIOSH on or before October 1, 2004. Five of these
petitions (representing two sites) qualified for evaluation. NIOSH evaluated the qualified
petitions and submitted reports to the Board at February, April, July, and August Board
meetings. The Board completed actions on all the petitions on September 15, 2005.
According to the procedures established by regulation for adding classes to the Cohort,
both the Board and NIOSH are to make recommendations to the Secretary of the
Department of Health and Human Services (HHS), who then makes a final decision. If
HHS decides to designate the addition of a class to the Cohort, HHS must submit a report
to Congress. The designation takes effect 30 days after the designation report is submitted
to Congress, unless Congress advises otherwise.


REPORT TO CONGRESS

Status of Petitions for Designating Classes of Employees as
Members of the Special Cohort

Centers for Disease Control and Prevention

Jelip Louise Gerberdikg, 91.D., MPH.

Director
Centers for Disease Control and Prevention
September 2005



THE SECRETARY OF HEALTH AND HUMAN SERVICES
WASHINGTON, D.C. 20201

NOV 15 2005

The Honorable J. Dennis Hastert
Speaker of the House of Representatives
Washington, D.C. 20515

Dear Mr. Speaker:

I am pleased to transmit to Congress the enclosed report on the status of petitions for
designating classes of employees as members of the Special Exposure Cohort under the Energy
Employees Occupational IIIness Compensation Program Act of 2000 (EEOICPA). as required by
the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law
108-375). Your continued support in this critical area of occupational safcty and health is greatly
appreciated.

Sincerely.

OF }-FLO. oA

Michael O. Leavitt

Enclosure