THE DEPUTY SECRETARY OF HEALTH ANO HUMAN SERVICES 

WASHINGTON, 0.C. 20201 

SEP f 7 2019 

Charles Saunders 

Rocky Flats SEC Petitioner 

Dear Mr. Saunders: 

Thank you for your request for an administrative review of the November 8, 2017, detennination 

not to add a class of employees from the Rocky Flats Plant, Golden, Colorado, to the Special 

Exposure Cohort (SEC), established by the Energy Employees Occupational Illness 

Compensation Program Act of 2000 (EEOICP A). 

Pursuant to 42 CFR § 83. l 8(b ), and because you filed a challenge to this determination, 

a panel of three HHS personnel, independent of the National Institute for Occupational Safety 

and Health (NIOSH), was appointed to conduct an administrative review. The panel has now 

completed its review of your challenge. 

After reviewing the administrative record in this case, the panel concluded that: (J) HHS 

substantially complied with the regulatory procedures set out in 42 CFR part 83; (2) the original 

detennination contained no evidence of factual error and was supported by factually-accurate 

information· and (3} there were no errors of fact or in the methods of evaluation, or omission in 

the principal findings and recommendations ofN10SH and the Advisory Board on Radiation and 

Worker Health. In summary, the panel concluded that your challenge to the November 8, 2017, 

decision is ivithout merit, and it has recommended no change to the detennination to deny adding 

a class of workers at the Rocky Flats Plant for the time period from January 1 1984, through 

December 31, 2005. 

After review of the administrative review panel's thorough report, the Secretary decided not to 

revise the November 8, 2017, final decision, and asked me to relay his decision to you. 1 am 

enclosing a copy of the administrative review panel's final report, which I hope you find helpful. 

I am sending an identical copy of tbis Jetter to Tenie Banie, your co-petitioner. 

Sincerely, 

signature on file 

Eric D. Hargan 

Enclosure 
THE DEPUTY SECRETARY OF HEALTH AND HUMAN SERVICES 

WAS HINGTON , O.C . 20201 

SEP 1 7 2019 

Terrie Barrie 

Rocky Flats SEC Co-Petitioner 

Dear Ms. Barrie: 

Thank you for your request for an administrative review of the November 8, 2017, detennination 

not to add a class of employees from the Rocky Flats Plant, Golden, Colorado, to the Special 

Exposure Cohort (SEC), established by the Ener!:,ry Employees Occupational Illness 

Compensation Program Act of 2000 (EEOICP A). 

Pursuant to 42 CFR § 83. I 8(b), and because you filed a challenge to this detennination, 

a panel of three HHS personnel, independent of the National Institute for Occupational Safety 

and Health (NlOSH), was appointed to conduct an administrative review. The panel has now 

completed its review of your challenge. 

After reviewing the administrative record in this case, the panel concluded that: (I) HHS 

substantially complied with the regulatory procedures set out in 42 CFR part 83; (2) the original 

determination contained no evidence of factual error and was supported by factually·accurate 

information; and (3) there were no errors of fact or in the methods of evaluation, or omission in 

the principal findings and recommendations ofNIOSH and the Advisory Board on Radiation and 

Worker Health. In summary, the panel concluded that your challenge to the November 8, 2017, 

decision is without merit, and it has recommended no change to the detennination to deny adding 

a class of workers at the Rocky Flats Plant for the time period from January I, 1984, through 

December 31, 2005. 

After review of the administrative review panel's thorough report, the Secretary decided not to 

revise the November 8, 2017, final decision, and asked me to relay his decision to you. I am 

enclosing a copy of the administrative review panel's final report, which l hope you find helpful. 

I am sending an identical copy of this letter to Charles Saunders, your co·petitioner. 

Sincerely, 

signature on 'file 

Eric D. Hargan 

Enclosure 
DEPARTMENT OF HEALTH & HUMAN SERVICES 

April 4, 2019 

The Honorable Alex M. Azar II 

Secretary of Health and Human Services 

Department of Health and Human Services 

200 Independence Avenue, S.W. 

Washington, DC 20201 

RE: Administrative Review of Rocky Flats Plant Special Exposure Cohort Petition 

0192 

Dear Mr. Secretary: 

BACKGROUND 

On November 8, 2017, as authorized under the Energy Employees Occupational Illness 

Compensation Program Act of 2000 (EEOICPA), 42 U.S.C. § 7384q(b), the Acting Secretary 

of the Department of Health and Human Services (HHS) at that time, Eric D. Hargan (hereafter 

"the Secretary") determined that the following class of employees does not meet the statutory 

criteria for addition to the Special Exposure Cohort (SEC): 

All employees of the Department of Energy, its predecessor agencies, and their 

contractors and subcontractors who worked at the Rocky Flats Plant ;n Golden, 

Colorado, from Janua,y 1, 1984, through December 31, 2005. 

Pursuant to 42 U.S.C. § 7384q, a class may be designated for addition to the SEC if the 

Secretary determines, upon recommendation of the Advisory Board on Radiation and Worker 

Health {the Board), that: (1) it is not feasible to estimate with sufficient accuracy the radiation 

dose that the class received; and (2) there is reasonable likelihood that such radiation dose 

may have endangered the health of members of the class. The basis for the Secretary's 

decision in this case was the determination that it is feasible to estimate with sufficient 

accuracy the radiation doses encountered by employees at the Rocky Flats Plant in Golden, 

Colorado (hereafter "Rocky Flats• or "RFP"); accordingly, a determination of health 

endangerment was not required. 

CONTEST OF DECISION 

In a letter dated December 8, 2017 {hereafter "Appeal Letter"), petitioner Charles Saunders and 

co-petitioner Terrie Barrie filed a challenge to the November 8, 2017, determination. A copy of 

petitioners' appeal letter is attached. EEOICPA implementing regulations at 42 CFR § 83.1 B(a) 

provide that, in order to contest a final decision by the Secretary to deny adding a class to the 

SEC, a challenge "must include evidence that the final decision relies on a record of either 

substantial factual errors or substantial errors in the implementation of the procedures" set out 

in 42 CFR part 83. 
The Honorable Alex M. Azar II-Page 2 

The Administrative Review Panel (hereafter "Panel") wishes to provide a full and satisfactory 

response to the petitioners. Although we cannot respond to issues raised in the petitioners' 

appeal letter that are outside the scope of our review, we have responded to those issues 

that are within our purview. 

The petitioners raised eight specific issues in the Appeal Letter: 

1. Large Cobalt 60 Source - Building 779 and site wide; 

2. Metal Tritides - Site Wide; 

3 Safety concerns including the possible criticality in the year 1986 and falsification of 

records ; 

4. Neptunium - Site Wide; 

5. Critical Mass Lab (CML)- Building 886; 

6. Plutonium and other radioactive materials in "cold area" buildings - Buildings 440, 

444, and 460; 

7. Magnesium/thorium alloy plates used in Building 440; and 

8. Division of Compensation and Analysis Support (DCAS) failed to review re levant 

documents. 

The Panel addressed these allegations through its review of the Secretary's November 8, 

2017, determination. This determination was based on the National Institute for Occupational 

Sarety and Health (NIOSH) findings and conclusions. 

ADMINISTRATIVE REVIEW PANEL 

Pursuant to 42 CFR § 83.18(b), the Secretary appointed a panel .of three Department of 

Health and Human Services (HHS) personnel, independent of the NIOSH, to conduct an 

administrative review and provide recommendations concerning the merits of the challenge 

and the resolution of the issues contested by the challenge. The undersigned, Donald L. Miller, 

MD, Andrea L. DiCarlo-Cohen, PhD, and Julie M. Sullivan, PhD comprise that Panel. Our 

collective expertise includes radiation medicine, occupational radiation protection, radiation 

exposure, radiation biology, radiation normal tissue injuries. radiation dose assessment and 

dose reconstruction, and radiation risk analysis. The Panel was charged with conducting an 

administrative review of the determination not to add a class of Rocky Flats employees to the 

SEC, which included reviewing the data and information that formed the basis of the prior 

decision. 

In conducting our review, pursuant to 42 CFR § 83.18(b), we examined the views and 

information submitted by the petitioners in the challenge, the NIOSH Evaluation Report, the 

report containing the recommendations of the Board, the recommendations of the Director of 

NIOSH to the Secretary (including the September 12, 2017, NlOSH Basis for Determination 

memo, which was attached as Tab H of this recommendation), information presented or 

submitted to the Board, and the deliberations of the Board prior to the issuance of its 

recommendations . Given the numerous issues raised in this appeal, this Panel carefully 

reviewed the relevant documents in the record provided by NIOSH, including those for which 

the regulation permits, but does not require, Panel review. Since 42 CFR § 83.18(a) 

prohibits petitioners from introducing any new information or documentation, our review was 

based entirely on the administrative record in this case, as described above. The Panel did 

not have access to any classified material; the review was conducted based solely on the 

unclassified material. 
The· Honorable Alex M. · Azar 11..:.:...:.Page 3 ·····~ 

STANDARD OF REVIEW AND MAIN CONCLUSION 

Pursuant to 42 CFR § 83.1 B(b), we considered whether HHS substantially complied with the 

regulatory procedures set out in 42 CFR part 83, and whether the Secretary's final decision 

was supported by accurate factual information. We also reviewed the principal findings and 

recommendations of NIOSH and the Board. As explained below, we concluded that 

petitioners' challenge does not have merit and, thus, we recommend no revision to the 

Secretar/s November 8, 2017, determination that denied adding a class of Rocky Flats 

employees to the SEC. 

SUMMARY OF THE PRIOR DETERMINATION 

The Secretary's November 8, 2017, determination (TAB A_Determination_Rocky Flats 

Plant.pdf) 1 states that NIOSH concluded, and the Advisory Board concurred, that dose 

reconstruction is feasible for aH Rocky Flats employees who worked from January 1, 1984, 

through December 31, 2005. This finding was based on the administrative record, 

inctuding the revised NIOSH evaluation report for the Rocky Flats Plant, SEC Petition 

Evaluation Report: Petition SEC-00192, Report Rev. #1, (Evaluation Report 

Rev.1_093013.pdf), which evaluated the feasibility of reconstructing doses for all·employees 

.of the Department of Energy, its predecessor agencies, and their contractors and 

subcontractors who worked at the Rocky Flats Plant in Golden, Colorado from Aprll 1, 1952, 

through December 31, 2005. Specifically, the Secretary determined (page 3):2 

• The potential sources of internal radiation that NIOSH investigated during its 

evaluation of the proposed class included exposures to tritium, neptunfum, 

thorium, uranium-233, and fission and activation products at the Critical Mass 

Laboratory (CML). The modes of exposure for the radionuclides of concern 

were ingestion and inhalation. 

NIOSH concluded that tritium doses from the on-site, environmental release 

in 1973 can be reconstructed using the bioassay results collected after the 

release. Bioassay results from potentially exposed individuals can be used to 

reconstruct their tritium doses for the time period from January 1, 1974, 

through December 31, 2005. 

Likewise, NIOSH concluded that doses from fission and activation products at 

the CML can be reconstructed using workplace air monitoring results coupled 

\11/ith information about the power level and duration of CML experiments. 

The principal sources of external radiation doses for members of the 

proposed class were evaluated in the SEC-00030 RFP evaluation report. 3 

SEC-00030 concluded that all external doses except those for neutrons could 

1 Citations are to the electronic administrative record provided by NIOSH to the Panel for the review of thil> 

appeal. 

i When the original document is paginated, the number provided In this recommendation is the page number in 

the document, in the form 'page x'. When there is incomplete or no pagination in the original document, the 

page number provtded in this recommendation refers to the page number of the PDF file, in the format 'page x of 

y.' 

1 This refers to the evaluation report for a prior Rocky Flats SEC petition 00030; the current Rocky Flats SEC 

petition is 00192. 
The Honorable Alex M. Azar II-Page 4. 

be estimated with sufficient accuracy. Therefore, with respect to SEC-00192, 

NIOSH concluded that there is no need to again assess external exposures 

and dose reconstruction feasibility at RFP. 

• NIOSH also concluded that operations that posed significant potential for

internal and external exposure to neptunium, thorium, and uranium-233 had

ended by December 31, 1983. Consequently, there is no need to reconstruct

doses resulting from these radionuclides for the time period.

NIOSH has established that it has access to sufficient information to: (1)

estimate the maximum radtation dose, for every type of cancer for which

radiation doses are reconstructed, that could have been incurred in plausible

circumstances by any member of the class; or (2) estimate radiation doses

more precisely than an estimate of maximum dose.

The Board concurred with NIOSH's determination that dose reconstruction is 

feasible for the evaluated class of RFP workers during the period from 

January 1, 1984, through December 31, 2005, and therefore should not be 

added to the SEC. 

Thus, NIOSH recommended, the Advisory Board concurred, and the Secretary determined, 

that the following employees do not meet the statutory criteria for addition to the SEC: 

All employees of the Department of Energy, its predecessor agencies, and their 

contractors and subcontractors who worked at the Rocky Flats Plant in Golden, 

Colorado, from January 1, 1984, through December 31, 2005. 

FINDINGS OF THE ADMINISTRATIVE REVIEW PANEL 

VVith respect to the petitioners' eight points above, we have separated out each of these 

into individual points. We provide the following comments for each point as part of our 

review and analysis. 

1. Large Cobalt 60 source - Building 779 and site wide

The petitioners state (Appeal Letter, pages 9-10) that •ocAS provided an incorrect

response to the Board regarding a classrfied interview that was to take place concerning the

large Cobalt 60 source," in that "Mr. Rutherford confused a completed classified interview

with a former Rocky Flats employee with the proposed interview with the custodian of the

Cobalt-60 source, [and] this response misled the Board to assume the classified interview

concerning additional exposures from the source was completed and nothing relevant was

discovered. We still do not know what exposure concerns the custodian has."

The Panel reviewed the transcript of the February 9, 2017, meeting of the Working Group 

(67 _wgtr020917 .pdf). � On pages 23-24, La Von Rutherford stated: 

4 Note that some documents, including this one, are duplicated in the record in different locations with different

file names. For convenience, when such a document has been cited in a footnote in NIOSH's "Basis for 

Determination" memo (TAB H Basis for Determination Memo.pdf), the file name provided by NIOSH for that 

document in the folder "Tab H references" has been used. The first two characters of these file names (e.g., "67") 

refer to the footnote number in NIOSH's Basis for Determination memo. 
The Hor\orableAleX M. Azar II-Page 5 

petitioner's concern with the cobalt-60 source. We provided a leak check 

survey, an area survey for the unit and ... work package for ... removing the 

unit. .. Dr. McKeel indicated that it would be better if you had more leak check 

surveys. We did do a number of data searches at the records center in Denver 

and we were not able to find any additional. .. actual surveys. But we did find a 

1987 health physics audit report that indicated the leak check had been 

conducted and showed no leaks. We found specific requirements in health 

physics documents requiring leak tests be performed at six-month intervals. We 

also found a document that indicated who the source custodian was and we 

were able to interview the source custodian last week. The source custodian 

indicated that the source was routinely checked and never found to be leaking. 

The person indicated this unit was rarely used after 1979 until its removal in 

1999. The person also indicated they had no idea where the actual surveys had 

went to. So after our review we concluded that the requirements did exist for 

leak checking the source. And based on !hat 1987 report and the source 

custodian interview and leak test that we do have from 1999, I believe, we 

concluded that leak test measurements were made. We also concluded that if 

the gamma cell had leaked it would have been seen during contamination 

surveys when they were prepping the unit for removal. So we find the cobalt-60 

source is not an issue. [Emphasis added.] 

In the same transcript, page 25, Mr. Rutherford continues, 

during our interview with the source custodian, the person indicated that they ... 

had other exposure concerns that they could not discuss over the phone .... So 

we are currently working on setting up a classified - or a secure interview and 

we would like to have a cleared Work Group Member and SC&A. [Emphasis 

added.) 

The petitioners also state (Appeal Letter, page 9) that in the transcript of the Board meeting 

held on March 23, 2017, Mr. Rutherford answered a question from member Kotelchuck with 

incorrect information, confusing two different interviews. The Panel reviewed this transcript 

(2017_03_23 Board transcript_RF.pdf). The relevant portion is on pages 69-70: 

MEMBER KOTELCHUCK: ... on the cobalt-60, the assertion is that we didn't 

interview someone outside ... . 

MR. RUTHERFORD: Actually, the cobalt-60 source, the person did request an 

interview. That interview was conducted in a classified setting. The individual 

was not concerned with Cobalt-60. She was concerned with a tritium capture 

system that was employed during the production years. 

She did not identify any situation where exposures could have been received 

from work with that unit. I can't discuss all of it, but I can give you that much. 

But, in fact, her interview said she had no issues with the cobalt-60 gamma cell. 

It was routinely surveyed. We could only come up with two or three of the leak 

checks, but we did find the complete work package for the removal of the 

gamma cell and we had no indications there was ever any problems with that. 

[Emphasis added.) 
The Honorable Alex M. Azar II-Page 6 

The Panel concludes that DCAS did not provide an Incorrect response to the Board because 

the interview with the source custodian related to the cobalt-60 source did tak'e place, and 

that the other, classified inteNiew dealt with an unrelated tritium capture system. We further 

conclude that the source custodian did not have concerns related to the cobalt-60 source. 

2. Metal Tritides - Site Wide 

The petitioners state (Appeal Letter, pages 10-12) that 

DCAS acknowledges that tritium was present at Rocky Flats during its entire 

operation, yet they only investigated the presence of tritides during the mid1970s. DCAS failed to thoroughly investigate the presence of tritides at Rocky 

Flats after December 31 , 1983. They ignored a document provided by Jon 

Lipsky, former FBI agent who led the raid on Rocky Flats. This was an interview 

conducted on June 11 , 1991 and provided to NIOSH. The former worker, who 

was a chemical engineer, stated, 'the tritium site was separate. Due to the 

ongoing practice of conducting Classified Projects at Rocky Flats, tritium was 

produced and disposed of at the plant, in the area of the 207 ponds.' 

[Emphasis in original.] 

The panel reviewed a number of documents related to tritium and metal tritides. 34_dcrfpsec192trit-r3.pdf is an extensive NIOSH review of tritium but limited to tritium gas and 

tritium hydride. In a transcript of a Work Group meeting held on March 17, 2015, 

(66_ wgtr031715 .pdf), Mr. Fitzgerald states, on page 207, 

metal tritides had a weapons complex application , but that application was in a 

sealed component in every place except for Mound and Los Alamos. So, one 

would expect that to be a sealed component at Rocky ... you have some 

residual tritides in locations, because it's just a particulate form of tritium ... you 

would only expect to see non-sealed tritides, like hafnium tritide at Mound and 

at Los Alamos .. .. Everywhere else they would have existed, but in sealed 

components. 

Further on in this document (pages 209-210), there is an interchange between Mr. Fitzgerald 

and member Munn regarding metal tritides: 

MR. FITZGERALD: Yes, it has an internal issue but ... where does it exist in 

that form and would it be available for exposure .. . and even if you do have it for 

exposure, the actual exposure amounts to a millirem. It's still a very small 

exposure. 

MEMBER MUNN: Even fractions of a millirem. 

MR. FITZGERALD: ... even though it's not easily detectible, the implications are 

not as great as ---

MEMBER MUNN: 1 guess I can't see any probability of danger, of physical 

danger as a result of what I've been shown ---

MR. FITZGERALD: Well, I think the first thing is, does it exist in an insoluble 

form and available for exposure at Rocky 

MEMBER MUNN: The answer is not to worry. It is not going to affect what we 

have to do. 
The Honorable Alex M. Azar 11...;;;.Page 7 

MR. FITZGERALD: Well, yes. The answer to the first question will determine 

how far you go with it... 

MR. RUTHERFORD: ... we're all in agreement the tritium exposures are low. 

In a subsequent document, 35_sca-rfpsec192tritr2-r0.pdf, page 10, there is a review of the 

Working Group discussion by Sanford Cohen and Associates (hereafter "SC&A"): 

With respect to metal tritides, a discussion begins on page 206 of the transcript 

indicating that the presence of metal tritides at the facility had a very specific 

purpose (they were sealed), and there was very little likelihood that there were 

any exposures to metal tritides as they were used at Rocky Flats. 

The Panel concludes that NIOSH did consider and investigate the possibility of worker 

exposure from metal tritides. NIOSH found that metal tritides were not present in a form that 

could lead to more than a minimal exposure. The Panel also concludes that documents 

related to production and disposal of tritium at Rocky Flats and any ongoing processes of 

tritium production, storage and disposal are not relevant to the concerns regarding metal 

tritides. Tritium existed in other chemical forms, but monitoring was in place to evaluate 

exposure to these forms. The Panel therefore concludes that NIOSH performed an adequate 

investigation and adequately researched the presence and exposure potential of metal 

tritides at Rocky Flats after December 31, 1983. 

3. Safety concerns including the possible criticality in the year 1986 and falsification of 

records 

To simplify the discussion of these issues, they are discussed separately. 

Possible criticality in 1986: 

The petitioners state (Appeal Letter, page 13) that "the safety concerns discussed in 2007 did 

not include the possible criticality which occurred in 1986,' and that "[i]f there was a criticality 

in 1986 and ignored by DCAS, then it is likely that the methodology to reconstruct dose is 

woefully underestimated." 

The Panel reviewed a number of documents regarding the possible criticality in 1986. 51_dcrfpdatafals-r4.pdf states (page 19) that the possibility of a criticality incident in 1986 appears 

to be based on an FBI agent's "contention that the flyover data indicate the presence of the 

isotopes Cs-137 and Sr-90, which is used to imply that an unreported criticality occurred at 

RFP," but "[n]o August 1989 flyover survey has been located, as asserted by the former 

agent. In addition, no specific information was located that supported a criticality event, as · 

claimed by the agent." 

Further, as discussed on pages 19, 21, and 22 of 51_dc-rfpdatafals-r4.pdf, additional 

documents (SRDB 131929, SRDB 133226 and SRDB 132825) do not support the contention 

that a criticality occurred in 1986 and other, independent assessments also found no 

evidence of a 1986 criticality. In particular: 

Subsequent interview discussions and a report obtained from an interviewee do 

not corroborate the occurrence of a criticality at RFP. This includes the 1989 

Criticality Safety Assessment at Rocky Flats that starts on page 277 (of the 
The Honorable Alex M. Azar II-Page 8 

PDF file) of the Assessment of Environmental Conditions at the Rocky Flats 

Plant (SRDB 131929). The Assessment Team found no indication that a 

criticality accident ever occurred at Rocky Flats. [Page 19.] 

The third interview (SROB 132825) was with an individual that had never been 

an employee or contractor at RFP. The only two associations this person had 

with RFP was as part of a Governor's panel to investigate unreported 

criticalities and serving as part of a NIOSH Health Surveillance Program. As 

part of his/her response, the individual reported that no indications were 

identified that supported the occurrence of a criticality at RFP. The individual 

provided a copy of the report he/she helped to develop as part of that follow-up. 

As part of his/her investigation, the individual looked for anomalies in personnel 

doses as well as flyover data. His/her investigation revealed no suspicious 

information and indicated that there was good continuity in the data. [Page 21 .] 

NIOSH concluded (51_dc-rfpdatafals-r4.pdf, page 22): 

The claim of an unreported criticality incident at RFP was investigated from 

several points of view in the documents that were reviewed, a,s well as during . 

the interviews of knowledgeable individuals; no supportive evidence of a 

criticality incident was found. NIOSH concludes that no information relating to 

this issue impacts the ability to reconstruct individual dose under EEOICPA. 

The Panel concludes that the record does not support or provide evidence for a possible 

criticality in 1986, and therefore the methodology to reconstruct dose is not "woefully 

underestimated" as a result. 

Falsification of records: 

The petitioners state (Appeal Letter, page 13) that "Several workers provided examples of 

dosimetry documents that showed cross-outs and whiteouts. One worker had a classified 

inteNiew which she related that a grievance was fifed by the Local concerning using a pencil 

to record dose. The petitioners provided a Department of Energy (DOE) document 

concerning the destruction of records ." Also (Appeal Letter, page 14), "In addition, a former 

worker came forward and testified before the full Board that she destroyed records under 

orders from her superiors. The worker also agreed to be interviewed in a classified setting." 

The Panel found that there was, without question, bo~h falsification and destruction of records 

at Rocky Flats. NIOSH did not dispute this. The relevant question is whether falsification and 

destruction of records made it impossible to bound or reconstruct doses for the purposes of 

EEOICPA NIOSH dealt with this question in detail The quotations below are from 51_dcrfpdatafals-r4.pdf. 

NIOSH found that it was able to bound or reconstruct dose for the class: 

While the documents being destroyed could have been some kind of field 

surveys, it does not appear that those surveys have an impact on NIOSH's 

ability to bound or reconstruct dose for the class, as long as the personnel 

monitoring data exist. Based on a review of some of the files that were provided 
The Honorable AlexM. Azar 11--"'Page 9 

as examples of documents that the interviewee believed were destroyed. 

NIOSH found that the records did exist in the associated personnel files in 

NOCTS [NIOSH OCAS Claims Tracking System): thus. those files were not 

destroyed. [Page 14. emphasis added.] 

.... the issue of 'p.enciling-in' information appears to be referring to radiological 

field survey records that directly relate to on-going production operations. The 

only dosimetry information that may be included in such field surveys would be 

from direct-reading dosimeters (DRDs) or personal ion chambers (PICs - a.k.a. 

Pencil Dosimeters). Field survey information is used for comparison purposes 

in the performance of EEOICPA dose reconstruction; however. the primary and 

most impactful source of radiological information for the purpose of individual 

dose reconstruction is the individual TLD dosimetry and bioassay information. 

TLD and bioassay analyses are performed in a laboratory and not documented 

in the field. in contrast to the surveys and reports discussed in the claim raised 

by this individual. Therefore. it is not expected that the original. handwritten 

documents that the interviewee refers to in the destruction process are related 

to an individual"s TLD or bioassay results (with electronic readouts - SRDB 

953; 24337; 24342). [Page 15, emphasis added.] 

Contamination incident and survey data are used to supplement the personnel 

monitoring data in the performance of dose reconstructions under EEOICPA. 

Personnel monitoring data are considered the primary data sources for the 

process. Therefore, NIOSH concludes that this issue does not impact the dose 

reconstruction process. [Page 16.J 

No information provided during this interview [SRDB 130493) supported the 

allegation of document destruction activities at RFP. While the individual 

discussed his/her concerns with the implementation of radiological limits and 

controls as well as dose reporting during his/her employment. up to the point of 

the implementation of the DOE Radiological Control Manual at the site {late 

1980s to early 1990s) and the FBI raid, there were no identified impacts on the 

ability to bound dose for the portion of the class of RFP workers being 

assessed as part of this white paper .... The other concerns that were relayed 

were associated with personal radiological monitoring records and the 

documentation of the statistical or sample-counting variations that may produce 

positive and negative bioassay results associated with the analysis of a 

potential exposure situation in an individual"s dose records .... These issues 

were assessed by ORAUT Principal Dosimetrists who considered the 

interviewee information. reviewed claimant files for comparable/corroborating 

situations. and assessed the impacts of the verified issues on the completion of 

the NIOSH EEOICPA dose reconstruction process. The assessment 

specifically focused on any negative impacts that the interviewee concerns may 

have on individual dose reconstructions. The ORAUT Principal Dosimetrists did 

not identify any situations or issues that impact the ability to reconstruct dose 

for the RFP worker class being assessed as part of this white paper. [Pages 17-

18. emphasis added.) 
The Honorable Alex M. Azar II-Page 10 

The Panel concludes that the record does support the existence of both falsification and 

destruction of records at Rocky Flats, but that NIOSH is nonetheless able to bound or 

reconstruct dose for the class because either (a) the false or destroyed records are not 

primary sources for dose reconstruction, or (b) duplicates of the destroyed records exist, or 

(c) other records or methods exist that permit reconstruction of worker dose. 

4. Neptunium - Site Wide 

The petitioners state (Appeal Letter, page 14) that: 

The Evaluation Report issued on September 9, 2012 stated that neptunium was 

handled in small quantities at Rocky Flats. An internet search provided a 

document which showed that there was a process for neptunium production. 

This document was provided to OGAS and the Work Group on February 26, 

2013, eight days after ANWAG submitted their complaint to the Health and 

Human Services Inspector General. · 

Again, seven months after the submission of the DOE document, DCAS 

determined they were unable to reconstruct dose with sufficient accuracy for 

neptunium exposure prior to January 1, 1984. This was accepted by the Board. 

The assertion that OGAS can reconstruct dose for workers after December 31, 

1983 is based on the premise that they can use plutonium bioassay data for 

this purpose. OGAS had plutonium bioassay results prior to December 31, 

1983. If those records were not sufficient then, why are they now sufficient after 

that date? According to a 2005 DOE document, 'Inspection of Environment, 

Safety and Health Programs at the Los Alamos National Laboratory' DOE 

determined that plutonium bioassay cannot be used to reconstruct neptunium 

exposure. 

The Panel reviewed a number of documents related to neptunium (Np). 25_dc-rfpnp237-

r1 .pdf, states (page 3): 

Neptunium was processed at Rocky Flats as early as 1962 (SRDB 24722, PDF 

p. 6). There is no evidence of continuous routine neptunium operations at 

Rocky Flats; rather, the evidence points to a series of discrete tasks performed 

from 1962 through 1983, involving a few grams to a few hundred grams. 

[Emphasis added.] 

These operations, involving high purity Np-237, were the basis for NIOSH's conclusion that it 

was not possible to bound Np exposures in the period from January 1, 1962 through 

December 31 , 1983. After December 31, 1983, no operations involving high purity Np-237 

were performed. From 25_dc-rfpnp237-r1 .pdf, (pages 3-4): 

Since that report [SRDB 132777] was issued, NIOSH has conducted an 

extensive search for evidence of Np processing after 1983. The result of this 

effort has been the identification of a single operation described in a 1987 

document, Production-Scale Plutonium-Neptunium Separation and Residue 

Recovery at Rocky Flats Plant (SRDB 129512). This document does not make 

clear exactly when this operation took place, although it does indicate that the 
The Honorable Alex M. Azifr11....:.Page 11 

campaign lasted approximately one year. NIOSH interviewed one of the 

authors, who was also the Principal Engineer who designed the process and 

directed the activities. He estimated that the operation began around January 

1985 (SRDB 130877). This is the only post-1983 Np operation that NIOSH has 

been able to confirm. 

26_sca-rfpnp237-052915.pdf, states (pages 2-3): 

After 1983, document reviews and interviews have uncovered only one Np 

operation, an approximate 1-yearcampaiqn in the mid-1980s that processed 

plutonium scrap containing residual amounts of Np in order to recover 

neptunium and purify plutonium ... Key attributes of this operation, PlutoniumNeptunium Separation and Residue recovery, were (1) the processing of the 

Pu/Np scrap in a 'closed" separation system ... , and (2) lack of any 'pure' 

plutonium or neptunium source term (both metals were produced with impurities 

of the other, i.e., 'purified' plutonium contained 0.0069% neptunium and 

'purified' neptunium was co-generated with plutonium at a Pu:Np mass ratio of 

6.4) (NIOSH 2015). 

The implication of the first attribute of this particular operation is that no routine 

exposure potential would have existed for workers performing the extractions at 

the glovebox. Workplace monitoring for this operation included continuous air 

monitoring (CAM), contamination surveys, and routine bioassay (urinalyses and 

body counts) typical of a plutonium-handling environment for all workers 

involved. From interviews and reviews of incident reports only one incident, 

involving a leaking tank, occurred and no worker exposure took place. 

The implication of the second attribute is likewise important, in that the 

continuing presence of plutonium with neptunium product provides a means for 

radiological monitoring of this operation. given the much greater specific activity 

attributable to Pu as compared with Np making any uptake of the Pu/Np 

mixture detectable via bioassay results (all personnel were provided routine 

bioassays during this operation). The predominance of plutonium relative to 

neptunium was confirmed in a review of RFP neptunium-containing waste 

shipped to Idaho National Engineering and Environmental Laboratory for 

disposal (mean mass ratios of Pu-239/Np-237 ranged from 105 to 6,450 in 

drums assayed, and mean mass concentrations ranged from 109 to 5,820) 

(SRDB 104511). [Emphasis added.] 

As noted in 25_dc-rfpnp237-r1.pdf, 

The dose from any internal exposure would have been dominated by the 

overwhelming amount of plutonium in the mixture, making neptunium bioassay 

unnecessary. Given the much greater specific activity of Pu-239. Pu bioassay 

would account for all organ doses. of which Pu would be the dominant 

component. [Page 4. emphasis added.] 
The Honorable Alex M. Azar II-Page 12 

The previous discussion also noted that this single post-1983 operation did not 

involve purified Np, but rather Pu with Np as a contaminant. Since the specific 

activity of Pu-239 is about 90 times greater than that of Np-237, the activity ratio 

of this Pu:Np mixture is greater than 500. As a result, all organ doses resulting 

from an intake from such a mixture would be dominated by the Pu component. 

The Np dose component would comprise only about 0.1 % for Type M Pu for 

most organs, and only about 1% for Type S Pu (SRDB 137075). 

In conclusion, NIOSH finds no evidence that Np-237 intakes occurred at RFP after 

December 31. 1983. If intakes had occurred during this period from the single 

identified Np operation. the resulting organ doses would be adequately accounted for 

by the available Pu bioassay data. [Page 10, emphasis added.] 

After the conclusion of the year-long Np purification operation, Np was still present at Rocky 

Flats. As stated in 26_sca-rfpnp237-052915.pdf: 

Beyond the one post-1983 Np operation identified, NIOSH observes that 

neptunium was present at RFP from 1962 to 2003, with quantities ranging from 

29 grams to 1,319 grams (SRDB 33009). While the one post-1983 Np program 

was reportedly terminated by 1988, neptunium remained in inventoiy and as 

residual contamination in gloveboxes, ductwork, and other process equipment. 

In its review of an interview with a fomner RFP engineer (SROB 138666), 

NIOSH concluded that for post-1983 handling of this contaminated equipment 

[e.g., during decontamination and decommissioning (D&D) and site closure 

activities], it does not 'dispute the potential for personnel Np exposures,' but 

'contends that the exposure would be dominated by the Pu (nothing involved 

purified or pure Np), and nothing provided up to this point disputes that 

contention' (SRDB 138666). [Page 3, emphasis added.] 

SC&A, likewise, has not identified any information that would point to potential 

worker exposure after 1983 involving pure or purified neptunium, albeit such 

neptunium was in storage or being shipped by RFP during that time . ... While 

contaminated areas and equipment were frequented by RFP workers during 

cleanup and site closure, and there was a likelihood of exposure to neptunium 

contamination during these activities, this contamination would have been 

dominated by the plutonium also present and monitored by either routine or 

event-driven bioassay. [Pages 4-5, emphasis added.] 

SC&A notes that all interviewees agree that neptunium remained at RFP 

beyond 1983 and into final cleanup, and that contaminated equipment (e.g., 

gloveboxes and ductwork) with trace amounts of Np would have undergone 

O&O. However, none of the interviewees identified any other operations 

involving Np and no one cited processing of pure or purified Np that would have 

had exposure potential. [Page 5, emphasis added.] 

SC&A reviewed the relevant RFP documents in the SRD8 ... Counting al l alpha 

monitored as being plutonium appears to be claimant favorable in this case. 

(Page 6, eniphasis added.] 
The Honorable Alex M. Azar 11-=Page 13 · · 

The Panel concludes that NIOSH acted correctly in determining that data are insufficient for 

estimating internal Np exposures prior to December 31, 1983, but that Pu bioassay data are 

adequate to bound Np expo.sure after that date, because (1) pure and purified Np and Np 

alloys were used, and Np recovered, from various production residues prior to January 1, 

1984, but not after that date, (2) small amounts of pure or purified Np were in storage or 

being shipped by RFP after 1983, but there is no evidence in the record of potential worker 

exposure involving this material, (3) the circa 1985 process to purify Pu yielded 'purified' 

neptunium that was predominantly Pu, (4) organ doses resulting from an intake of this 

'purified' neptunium would be dominated by the Pu component, (5) counting all alpha 

monitored after January 1, 1984 as being Pu, even if due to Np, would be claimant favorable, 

and (6) these considerations also apply to any Np exposure due to decontamination and 

decommissioning activities. 

5. Critical Mass Lab (CML)- Building 886 

The petitioners state (Appeal Letter, pages 15-16) that 

(a): NIOSH's assumption that the average [CML criticality] experiment lasted 

70 minutes ... is a low estimate ... about 15 to 20 minutes would be devoted 

to the 'slightly super and slightly subcritical conditions' alone. A few 

experiments ... were 'intentionally kept at or near criticality for hours.' 

(b): NIOSH has found no indication that confirmatory bioassays were 

performed for employees involved in the clean-up of any of the accidental 

UNH [enriched uranyl nitrate solution] spills. Fission and activation 

products, which decay primarily by beta/gamma emission, are not likely in 

any case to have been detected by bioassay intended to detect alpha 

particles emitted by uranium or transuranic radionuclides. ' ... If fission and 

activation products can't be detected by bioassay, how does NIOSH plan 

to reconstruct dose for beta/gamma exposures for these workers? [Italics 

in original.] 

{c): NIOSH focused only on HEUN [highly enriched uranyl nitrateJ ... CML also 

had 375 kg of very old Pu because it was rich in AM-241 ... workers would 

have been exposed to HEUN when there were no experiments being 

conducted ... CML staff was required to inventory HEUN 'which would have 

exposed workers to 4 months of daily hands on contact with irradiated 

radioactive material.' 

To simplify the discussion of these issues, they are discussed separately. In addition, 

because a CML scientist flagged many of the issues listed above as concerns, we have 

included a section to address this. · 

a) Assumptions regarding criticality experiments: 

NIOSH determined {01_rockyer.pdf): 

The [Nuclear Criticality Safety] group ... conducted about 1,600 critical mass 

experiments using EU [enriched uranium]. including Pu in solutions (800 tests), 

compacted powder (300), and metallic forms (500). After 1983, criticality 
The Honorable Alex M. Azar II-Page 14 

experiments were not conducted with solid materials; they were conducted 

primarily with uranyl nitrate solutions, which were reused . [Page 22.) 

Short-lived fission products were produced, and none were indicated as having 

been released to the work or outdoor environment. The isotopes decayed 

rapidly and were contained until stable. [Page 24.] 

10_SW-A-005612.pd.pdf also states (page 94): 

Approximately half of the 1600 criticality experiments conducted in Building 886 

actually achieved criticality .... The experiments conducted in the RFP 

laboratory generally involved power levels and the associated heat generated 

of no more than 1 D milliwatts for no more than one hour (ChemRisk, 1991 ; RE891{53)). 

Comments made during Rocky Flats Working Group meetings regarding the possibility of 

higher power outputs, (" ... 10 to 20 watts instead of 10 milliwatts.") during the criticality 

experiments, as well as longer periods of time involved in each study ("two-and-a-half-hours 

instead of one hour"), (54_wgtr071415.pdf, page 67) were also considered to ensure that 

data used by NIOSH in their calculations were appropriate, correct, and claimant favorable. 

NIOSH reassessed the criticality experiments based on this information and considered 

additional data. A reassessment of typical criticality experiment power and duration, based on 

contemporaneous CML records and reports, resulted in a revision to the original estimates, 

but is still claimant favorable (43_dc-rfpirdcml-r0.pdf, page 8). 

In 43_dc-rfpirdcml-r0.pdf, evidence was revisited in response to claimant concerns after 

discussions with a senior CML scientist. As stated on page 36: 

Re-evaluation of unmonitored personnel dose using recently captured air 

monitoring data and reactor performance estimates for the Rocky Flats Plant 

Critical Mass Laboratory has resulted in estimates on the order of a few 

nanosieverts for maximum organ doses due to inhalation of resuspended 

contamination containing mixed fission and activation products. These 

estimates are over two orders of magnitude lower than previous estimates. The 

greatest contributor to the large reduction in estimated doses is a correction in 

the calculation of a conversion factor. Lesser contributors to the reduction are 

lower estimates of reactor power in a typical criticality experiment at CML, and 

a lower value for respirable alpha air concentrations based on routine air 

monitoring results. [Emphasis added.} 

The newer calculations resulted in lower estimated levels of internal radiation exposure than 

were reported initially but are nonetheless claimant favorable (44_sca-rfpirdcmlr0.pdf, page 8). 

NIOSH used reasonable and claimant-favorable assumptions and parameters in 

deriving the potential MFAP (mixed fission and activation products} intakes and 

doses for CML workers at the R FP. SC&A did not identify any outstanding error 

in the calculations or any data issues in the NIOSH's process. Various 

parameters and scenarios could be used to estimate the potential MFAP intakes 
The Honorable Alex M. Azar fl...;;..;.Page 15 ··· 

at the CML, with differing results. However, as indicative of the very small MFAP 

doses derived by both NIOSH and SC&A, even a change of a factor of 10 or 100 

in the results would not alter the conclusions that the potential doses from MFAP 

were very small, and much less than 1 mrem, the minimum dose used in the 

dose reconstruction. 

VVith regard to accidents and potential exposure of CML cleanup workers, no alphas were 

detected and contamination and air sampling surveys, as well as bioassay data are available 

for ~ndividuals who worked at CML during that period. Further; when the facility was 

decommissioned, bioassays were done to detect uranium, and prompt decontamination was 

carried out, along vvith air monitoring. 

b) Issues related to b;oassays: 

The petitioners expressed concern regarding a lack of bioassays in CML for personnel 

involved in clean-up of accidental spills and the ineffectiveness of bioassays for detecting 

fission and activation products. NIOSH concluded that RFP had a good overall air monitoring 

program, which would have indicated the presence of potentiar external exposures. 43_dcrfpirdcml-r0.pdf states, an page 20: 

NIOSH has since captured formal plant-wide procedures describing a 

particulate air monitoring program during the period from 1980-1989 for alphaparticle emissions ... Additional captured documents indicate that these 

procedures appear to have been followed and that routine alpha air monitoring 

was perfonned at CML during the period 1980-1989. 

The results of air sampling, contamination surveys and bioassays were discussed at an 

Advisory Board meeting in March, 2017 (2017 _03_23 Board transcript_RF.pdf, pages 68-69): 

CHAIR MELIUS: The CML cleanup workers spills? 

MEMBER KOTELCHUCK: The cleanup of activity was ... that we were not 

detecting alpha particles ... there was cleanup. 

MR. RUTHERFORD: Oh, we have documented surveys. We have 

contamination surveys. We have air sampling from the entire period. The issue 

was, was there post-accident bioassay? We could not confirm that, but we do 

have the actual bioassay for individuals that worked in the actual Critical Mass 

Laboratory during their period. It does not address fission and activation 

products, and we did mention that, because, at the time, the site did not feel 

that it was necessary. And our calculations prove that it was not. The highest 

dose we came up vvith was 2.5 times 10 to the minus fourth millirem potential 

exposure at the Critical Mass Lab from fission and activation products. 

This monitoring would have detected any possible alpha exposures and can therefore be 

used to bound dose for CML workers. 

NIOSH concluded (43_dc-rfpirdcml-r0.pdf), on page 36: 

no significant personnel dose to Rocky Flats workers or contractors resulted 

from the generation of fission or activation products in the uranyl nitrate fuel or 
The Honorable Alex M. Azar II- Page 16 

resuspended contamination from fuel spills as a result of criticality experiments 

conducted at CML over its lifetime. 

In 38_dc-rfpradexpsrc-r0.pdf, on page 21, NIOSH concluded further that: 

external radiation exposure to CML workers and staff is accounted for by Rocky 

Flats' personnel dosimetry program, which assigned radiation dosimeters to all 

workers. The personnel dosimetry program also included periodic bioassay 

(urinalysis and body counts) that focused primarily on identifying uranium and 

plutonium intakes. The in-vivo bioassay, using gamma spectrometry, would be 

expected to easily detect most fission and activation products present In any 

significant amount, except for radioisotopes like Sr-90, which emit beta radiation 

not detectable in a routine body count or in a urinalysis evaluated for alphaemitters. 

Organ doses to individual radionuclides from inhalation of re-suspended 

contamination at CML are less than 10·6 Sv, with the largest total organ dose 

being 1.1 x 1 O 6 Sv to the thyroid, if radioiodines are included (a very claimantfavorable assumption). 

Also, in the same document NIOSH concludes, on page 22: 

based on the weight of evidence from the detailed history of the CML, computer 

modeling of criticality experiments, and radiological measurements after 

operations ceased, that no significant personnel dose to Rocky Flats workers or 

contractors resulted from the generation of fission or activation products in the 

building materials and fixtures of the Building 886 Cluster as a result of the 

criticality experiments conducted there over its lifetime. 

A subsequent SC&A review states (39_sca-rfpradexpsrc-r0.pdf, page 8) that: 

results of this analysis suggest that the external doses and internal intakes from 

potential exposures at the CML were monitored in a manner that would mostly 

likely not result in significant exposures going undetected for dose reconstruction 

purposes. 

Thus, potential exposures can be bounded based on overall available data from air sampling, 

contamination surveys and bioassays at Rocky Flats. 

c) Exposure to HEUN and Pu: 

43_dc-rfpirdcml-r0.pdf discusses surface contamination (pages 8-20), workplace air monitoring 

(pages 20-29) and assessment of unmonitored dose from spills of uranyl nitrate and mixed 

fission and activation products (pages 30-36) in the CML in detail. In 2017 _03_23 Board 

transcript_RF.pdf (page 50), Member.- Kotelchuck summarizes the findings in 43_dc-rfpirdcmlr0.pdf as follows: 

Routinely collected data was found for external exposures monitored via 

personnel badges and daily radiation surveys at control points. Potentially 
TheHoriofableAlexM. Azar II-Page 17 

contaminated surfaces were checked regularly for alpha radiation via tissue 

smears. Internal exposures resulting from inhalation and ingestion of airborne 

dusts and resuspension from contaminated surfaces were assessed via 

bioassays, and with an adequate amount of exposure data and amount of data. 

The petitioners also expressed concern over "375 kg of very old Pu because it was rich in Am241' in the CML (Appeal Letter, page 15). However, in 54_wgtr071415.pdf (pages 68-69), a 

CML scientist mentions the Pu referred to by the petitioners: 

the age of the plutonium metal cylinders, we got these metal cylinders for 

experiments in the 1970s sometime and we returned them to the production 

stream in 1983. By that time, the plutonium metal was about 25 years old and 

would·· there is a natural process that inbreeds americium-241 into the 

· plutonium-239. And that·· and that makes the resultant plutonium metal 

cylinders much more hazardous to handle or deal with. 

The period from the 1970s through December 31, 1983 is already included in a SEC, and the 

Pu in question was no longer in the CML during the time period covered by the petitioners' 

current appeal. The Panel concludes that Pu in the CML is not an issue for the current appeal 

and that sufficient data are avallable to bound exposures from HEUN. 

Concerns expressed by a CML scientist; 

As recorded in 54_wgtr071415.pdf, (pages 62-80), the scientist expressed strong disagreement 

with NI OS H's conclusions, and requested an interview with the Working Group. The substance 

of the interview, which was conducted in October of 2015, is summarized in 2017 _03_23 Board 

transcript_RF.pdf (page 49). During the interview, the scientist argued that it is not possible to 

bound the neutron flux in CML's near-criticality experiments. He asserted that the radiation 

levels at CML were not properly documented, and body counts were not done on the lab's 30-

35 employees, only lung counts and (irregularly) urinalyses. He also disputed the ability to put 

upper bounds on the neutron flux via reactors' energy output. Finally, he stated that in the 

1980s, an estimated 100-200 non-CML RFP staff entered the lab annually to observe ongoing 

experiments. As a result, NIOSH agreed to revisit these issues, with a plan to also request 

additional data from Los Alamos National Laboratory, and reporl back to the group. 

NIOSH interviewed additional people and collected data from previously unknown records in 

storage at Los Alamos National Laboratory (LANL) to address claimant and CML scientist 

concerns. NIOSH identified records of neutron flux and thermal power estimates by CML staff 

using analytical measurements made during or after criticality experiments and used these data 

and other data from the scientist's book to re-assess thermal power and fission rate estimates 

(43_dc-rfpirdcml-r0.pdf, pages 4-8). As a result of this reassessment, "NIOSH found that CML 

staff had on five occasions satisfactorily assessed thermal power and neutron flux, and the 

power in all cases was less than the 10 mW estimated in its 7/14/15 NIOSH White Paper.' 

[2017_03_23 Board transcript.:_RF.pdf, page 49] 

On the basis of its reassessment, NIOSH and SC&A reached the conclusions already stated 

above, in b). 
The Honorable Alex M. Azar II-Page 18 

ln summary, the Panel concludes (a) that NlOSH's estimates of power and duration of criticality 

experiments are averages based on data from CML experiments recorded contemporaneously, 

(b) estimates of possible dose from resuspended contamination from spills are based on 

routine air monitoring, and extensive data are available, (c) NIOSH utilized Information from 

numerous sources, including a CML scientist's publications, extensively in the determination of 

possible exposures, (d) the scientist's objections relate to external dose from gamma radiation, 

not internal dose, (e) external doses and internal intakes from all potential exposures at the 

CML, including to unmonitored personnel, can be bounded based on available monitoring data, 

(f) calculated levels of internal radiation exposure are claimant favorable, (g) the NIOSH 

analysis appears thorough, data-based, and claimant favorable, and (h) the detailed review 

carried out by SC&A supports NIOSH's analysis. 

6. Plutonium and other radioactive materials in "cold area" buildings - Buildings 440, 

444, and 460 

The petitioners appear to raise two concerns in the Appeal Letter related to this topic: 

plutonium exposure and neutron exposure from beryllium and depleted uranium (DU). While 

the concern is listed as a bullet point on page 4 of the Appeal letter as "Plutonium and other 

radioactive materials in "cold area" buildings - Buildings 440, 444, and 460," the discussion of 

this issue on page 16 of the Appeal Letter is more narrow, and describes only "Neutron 

exposure to workers in Building 444." The petitioners advance no new evidence regarding 

plutonium in any building or neutron exposure in buildings 440 or 460. 

The two concerns regarding building 444 are discussed separately: 

Plutonium exposure (Appeal Letter, pages 16-17): 

As recently as June 12, 2017, plutonium was listed as being present at some 

point in Building 444. This was presented to DCAS and the Board before the 

Board meeting in March of 2017. DCAS has not responded whether their dose 

reconstruction methodology incorporates plutonium exposure for workers in 

Building 444. 

Certain metals are known to have been present in building 444 (23_2005062800775ALL.pdf, 

page 3), including depleted uranium, depleted uranium alloys, aluminum, beryllium, stainless 

steel, copper, and other metals in minor amounts. This document does not mention the 

presence of plutonium in building 444. Conceivably, it could have been present in small 

amounts or in waste drums, as in building 460. 

The petitioners' concern regarding the presence of plutonium in building 460 is not new. The 

Panel reviewed a number of documents related to this issue. DRQual_P0192_02082012.pdf, 

includes the following under the heading "(F.1) Radiation exposures and radiation doses 

potentially incurred by members of the proposed class were not monitored either through 

personal monitoring or through area monitoring:" 

Originally, the DOL Site Exposure Matrix showed that plutonium was present in 

Building 460. NIOSH was advised of this in the attached email dated December 

8, 2009. According to the statement submitted in that email, a former radiation 

control technician related that waste drums from the 700 complex were stored 

in Building 460 in 1988 when the governor of Idaho refused to allow shipments 
The Honorable Alex M. Azarll=Page 19 

of radioactive waste from Rocky Flats into the state. Building 460 was a 'cold' 

building and workers were not monitored for exposure to radiation. [Page 2.] 

More specifically, as noted on page 1 of the same document, the petitioners' concern is 

clarified as, "The potential unmonitored dose from waste drums stored in Building 460 refers 

to the Building 460 workers' lack of bioassay monitoring.' 

The NIOSH response is in the same document, DRQual_P0192_02082012.pdf, on pages 2-

3: 

NIOSH has exposure records for most workers. Some workers may not have 

been monitored if it was determined that their exposure potential was below the 

threshold for dose monitoring to be required. Work in Building 460 may not 

have required monitoring for workers assigned there. The affidavit regarding 

the stored drums describes the performance of radiological monitoring of those 

drums. and states that there were radiological postings due to the exposure 

rates from the drums. Additionally, records available to NIOSH indicate that the 

radiation control technician had plutonium bioassay during the period of 

concern. This indicates to NIOSH that radiological controls were being 

exercised to prevent unmonitored workers outside the posted areas from 

receiving exposures above appropriate limits. NIOSH does not see indications 

that the movement and storage of these drums was controlled differently than 

the general waste storage activities on site. The doses associated with general 

waste handling and storage activities are represented in the dose monitoring 

records of the RFP worker population. The adequacy of RFP worker population 

dose records for the development of coworker distributions for the assignment 

of unmonitored internal and external dose has already been evaluated by 

NIOSH and the ABRWH for SEC00030. [Emphasis added.] 

In NIOSH's view, this proposed basis support provides no substantially new 

information regarding unmonitored plutonium or uranium exposures, beyond 

what NIOSH has previously addressed in its evaluation for SEC00030. 

The Panel concludes that if plutonium was present in building 444, it would have been in very 

small amounts or in waste drums, as in building 460. The Panel further concludes that in this 

regard NIOSH investigated the possibility of exposure from stored plutonium waste drums in 

building 460 adequately, and that the investigation methods, conclusions, and proposed use 

of exposure data from general waste handling and storage activities are acceptable. The 

method used to reconstruct exposure for building 460 workers would apply equally to building 

444 workers potentially exposed to plutonium in waste drums. In addition, a neutron 

monitoring program was in place in building 444 (discussed in the section on beryllium and 

depleted uranium below). 

Neutron exposure from beryllium and depleted uranium (DU) in building 444 

In the Appeal Letter, page 17, the petitioners state: 
The Honorable Alex M. Azar II-Page 20 

Another recent development was whether workers in Building 444 were 

monitored for neutron dose. This question arose when the petitioners realized 

that both beryllium and depleted uranium were present in that building. 

The petitioners' concern regarding the possibility of neutron exposure to workers in building 

444 from DU and beryllium (Be) is related to the production of neutrons when DU and Be are 

in close proximity. Attachment 4 to the Appeal Letter is an email from Mr. Rutherford in 

DCAS, who states (page 25 of 47) that " ... it would take about 1,000 kg of DU in intimate 

contact with Be to give a dose rate of 1 mrem/hr at a meter." [Emphasis in original.] 

Petitioner Barrie provided information about the physical location of the Be and DU in a 

presentation to the Rocky Flats Work Group at its February 9, 2017, meeting 

(67 _wgtr020917 .pdf, page 58): 

LaVon and I, last June, had a discussion about depleted uranium in Building 

444. And I don't want to get into an of it, but he did explain to me that depleted 

uranium would need a catalyst to emit neutrons. And a worker told me that 

beryllium would act as a catalyst, and in the other side of Building 444. which 

was separated by a three-foot wall, was beryllium. So we had depleted uranium 

on one side and Be on the other side. [Emphasis added.] 

If a three-foot wall separated the Be from the DU, as petitioner states, they could not have 

been in intimate contact. Additionally, in the same Work Group transcript, page 63, Mr. 

Rutherford states, "Building 444, ... neutron exposure from depleted uranium is not an issue. 

You don't have enough there." 

Were Be and DU ever alloyed together at Rocky Flats? There is an extensive review of Be 

use at Rocky Flats in 23_2005062800775ALL.pdf. This review indicates that DU was not 

alloyed with Be at RFP, so no DU-Be alloy waste could have been generated in building 444 

(23_2005062800775ALL.pdf, page 17). 

23_2005062800775ALL.pdf includes a discussion of Be use in building 444 (page 21 ): 

Building 444 had a beryllium machine shop, a DU machine shop, and a foundry 

that accommodated both beryllium and depleted uranium. The waste generated 

by the machine shops was segregated, but foundry waste could be 

commingled. Although drums and boxes generated were not marked always as 

to their origin within Building 444, a commingled drum was always identified as 

a beryllium drum. 

However, Be foundry operations ceased in 1975 (23_2005062800775ALL.pdf, page 6): 

Production of beryllium components began in 1957 and consisted of machining 

and inspection of beryllium forms supplied by offsite vendors. A wrought 

beryllium process was developed at RFP in the mid-1960s to recycle beryllium 

metal scrap into cast beryllium forms available for machining. While beryllium is 

not radioactive, it was often commingled with OU and other radioactive 

materials shipped to !NL [Idaho National Laboratory] . 
The Honorable Alex M. Azarll_..:Page 21 

In 1975, offsite vendors began supplying beryllium blanks that required a 

minimal effort to machine into acceptable beryllium components. Consequently, 

the recycling and casting of beryllium at RFP ceased. The beryllium blanks 

provided by offsite vendors were composed of sintered beryllium, which 

contained 5-6% beryllium oxide. Eliminating the wrought process after 1975 

significantly reduced the beryllium waste generated by Buildings 444, 447, and 

883. (Emphasis added.] 

Thus, although foundry waste could contain both Be and DU (though not as an alloy), there 

were no Be foundry operations after 1975. Moreover, the petitioners state (Appeal Letter, 

page 17) that, based on their review of the Comprehensive Epidemiologic Data Resource 

(CEDR) for Rocky Flats and their observation that data on neutron exposure were included in 

the CEDR, 'It is obvious that there was some kind of [neutron] monitoring program for the 

workers in 444." The Panel determined that such monitoring would indicate whether these 

workers did have neutron exposure and would provide information that would permit 

estimation of their neutron exposure. 

The Panel concludes that there is no evidence of Be alloyed with DU in building 444, and 

large quantities of Be and DU could not have been in intimate contact, or even in close 

proximity-the Be and DU machine shops were in separate parts of the building, separated 

by at least a three-foot wall. Therefore, there is no mechanism for neutron exposure to 

workers in building 444 as a result of the machining of Be and DU. Be and DU wastes were 

commingled in foundry waste containers before 1976. \Mlile it is conceivable that Be and DU 

could have been in intimate contact in waste containers and therefore neutron production 

might have occurred, there is no evidence that this occurred during the period 1984-2005, 

and there is evidence that a neutron monitoring program was in place in building 444. 

Further, NIOSH investigated the possibility of neutron exposure to workers in building 444 

and found nothing to s'uggest that neutron exposure was a concern. 

7. Magnesium/thorium alloy plates used in Building 440 

The petitioners state (Appeal Letter, page 18) that: 

This issue originally arose from fourteen former workers from the Dow Madison 

Company who offered sworn affidavits that truckloads of this material was (sic] 

shipped to the Rocky Flats plant. DCAS, in 2007, suggested that the Dow 

workers were mistaken and that the shipments actually went to the Rocky 

Mountain Arsenal. .. 

One former Rocky Flats worker came forward in 2013 and alluded that special, 

classified materials were used in the Modification Center located in Building 

440. The worker was willing to be interviewed in a classified setting, however, 

we do not know if this interview took place or what information this worker 

provided to DCAS ... 

As noted above, DCAS admitted that there were approximately 400 boxes of 

documents located at LANL which might contain information on 

magnesium/thorium alloy plates usage at Rocky Flats. Yet, despite knowing of 
i 

The Honorable Alex M. Azar II-Page 22 

these records for years, DCAS has yet to review them and doesn't plan to do so 

until January 2018. 

The Panel reviewed a number of documents that dealt with magnesium/thorium alloy 

(hereafter "Mg-Th") plates. Joint_Email_Submission_From_Rocky_Flats_Plant_SEC00192_ Co-petitioners.pdf includes a redacted report or an interview with an individual 

identified only as a Rocky Flats worker. On page 6 of 7, the interviewee is reported as saying: 

You Indicated that you had never heard of Magnesium-Thorium (Mg-Th) alloy 

and were not aware of the existence of any Mg-Th alloy at RFP-Modification 

Center. You were aware of 4x4 foot square crates being brought in that were 

marked as radioactive. but you were not aware of what the composition of the 

material was. We were under the impression this was annealed armor plates. 

We formed this material into various shape configurations by shearing, 

punching and bending .... You informed us that you did not perform any welding 

on that material ... You indicated that the management told you that this 

material was not monitored because it was not radioactive; it was probably just 

coming from a radiologically controlled area. 

In your closing statements, you discussed a union concern regarding work with 

radioactive materials on Building 440, that you did not do any grinding in 440 .. ." 

(Emphasis added.] 

Note that in McKeel_EmailAttachment_Mag-Thor_At_RF _3 .21 .17.pdf, Dr. McKee! states 

(page 1) that Mg-Th plates were not 4 X 4 feet: 

magnesium-thorium metal alloys ('mag-thor') such as HK-31A and HM-21 were 

produced at the Dow Chemical Plant located in Madison. IL, were then shipped 

as large (-4 x 8-12 foot) sheets or plates to the DOE Rocky Flats plant in 

Jefferson Co., Colorado .... 

The document dc-rfpmgth-r1 .pdf summarizes the review of this issue by NIOSH as part of the 

Rocky Flats and other investigations. Numerous records and sources were investigated, with 

the conclusions that (1) Mg-Th was only produced at Dow Chemical from 1954-1973, and (2) 

there are several worker statements that Mg-Th was never used at Rocky Flats: 

No corroborating evidence for the assertion that Mg-Th alloys were used or 

present at RFP was found during the research into Mg-Th alloy efforts in the 

DOE complex over the applicable time period. [page 2] 

While most of the information and documentation remains classified, the 

information that was released based on the reviews does not corroborate the 

use of Mg-Th alloys at RFP for this or any other operations. (page 7) 

All of the available information for Mg-Th alloys for other sites falls within the 

timeframe of the most recent proposed SEC class for RFP (1952-1983); 

therefore, if any undocumented Mg-Th operations did occur at RFP (that were 

responsive to these other sites' operations), the RFP operational dates would 

be covered under the existing RFP SEC class. (page 8) 
The Honorable Alex M. Azar II-Page 23 

The document 56_sca-rfpmgth-091114.pdf summarizes the review of this issue by SC&A. In 

2006, SC&A raised the possibility of Mg-Th alloy being received by Rocky Flats during the 

review of the NIOSH Evaluation Report for Petition SEC-00030 (page 1 ): 

During this review, SC&A interviewed a Dow Madison worker who had claimed 

that shipments of Mg-Th alloy material were being sent to Rocky Flats during a 

12-year period from 1963 to about 1975 (SC&A 2007b). The interviewee 

indicated that four truckloads of Mg-Th alloy were being shipped to R FP per 

month, and that the same material was being shipped to Los Alamos National 

Laboratory (LANL). Dow Madison also received scrap returns from the various 

Atomic Energy Commission (AEC) sites, including RFP, which W<!S clearly 

labeled on the returns. The interviewee indicated that four Mg-Th alloys were 

involved: HK31, HK61, HM21, and HM31. 

At the Rocky Flats Work Group request, NIOSH subsequently interviewed four 

site experts from RFP regarding the degree of exchange of Mg-Th between 

RFP and Dow Madison, if any. As noted in NIOSH's August 13, 2014, paper 

(NIOSH 2014), the four experts interviewed did not recall any large quantities of 

magnesium alloy in use at RFP and did not recall any shipments of such 

material between RFP and Dow Madison. As the Work Group took no further 

action, NIOSH considered this issue closed. 

The issue was raised again in 2013 for SEC-00192 (56_sca-rfpmgth-091114.pdf): 

The issue was raised again by the petitioner for the current SEC-00192 via email on May 31, 2013, who indicated that a third party had reported that Mg-Th 

alloy plates had been brought to RFP, refined in Building 881, and then sent to 

the MOO center for modification to fit 'Semi Trucks' to make them bullet proof 

(NIOSH 2014). NIOSH has since conducted further records review of the Site 

Research Database (SRDB) to locate any documentation establishing a link 

between Mg-Th alloy and RFP, conducted new keyword searches of available 

RFP documents (e.g., using HK-31 and HK-31A, as key search parameters), 

performed additional onsite document searches, and interviewed additional 

former RFP workers, in particular, one who worked at the MOD center. None of 

these more recent investigations have surfaced new information which has led 

NIOSH to change its original conclusions from 2007 that there is no evidence of 

the use of Mg-Th alloy material at RFP. NIOSH opines that there is likely 

'confusion between RFP and other Denver-area sites, as well as confusion 

regarding Mg-Th plates and other similar materials at RFP.' [Pages 1-2.) 

The Dow Madison worker interviewed by SC&A in 2007 provided a level of 

clarity and detail in his recollections of the Mg-Th alloy shipments between Dow 

Madison and RFP, which make it difficult to attribute his identification of RFP as 

the recipient as merely 'confusion' on his part. For example, the interviewee 

clearly i,tentified that returned scrap was received from all recipient sites, with 

that of RFP being clearly labeled as such. [Page 2.) 
The Honorable Alex M. Azar II-Page 24 

In his October 16. 2013, comments before the full Advisory Board in its meeting 

in Denver (McKeel 2013), Colorado, Dow co-petitioner Dan McKee! noted that 

he had made inquiries to the Department of Energy (DOE) via the Freedom of 

Information Act in May 2013 regarding Mg-Th use and had not yet heard 

anything. He was also told by DOE that about 400 boxes of records pertaining 

to RFP are located at LANL but would need to be searched by hand. He 

indicated that some of these records are classified and was told any such 

search would take about 2 years. Without accessing these records, any final 

conclusions regarding facility use and shipments of Mg-Th would be premature. 

[Page 2, emphasis added.] 

The reported Mg-Th use period for the AEC weapons complex (1956- 1969, 

SRDB 53615) falls within the current SEC period for RFP (1952-1983) and, 

therefore, would only influence partial dose reconstructions. While the reported 

concentration of thorium in the alloy material (2%-3%) is relatively low, the 

dose contribution to workers, if they were involved with certain, intrusive 

handling of the material (e.g., grinding, smelling, or fabricating), could 

potentially be significant, as pointed out by SC&A in its 2007 review of NU REG 

-1717 and potential worker exposures from 4% thoriated welding rods. (SC&A 

2007a). [Page 3, emphasis added.} 

In SC&A's judgment, the receipt and use of Mg-Th alloy material at RFP 

remains inconclusive, given the incompleteness of document searches and 

reviews, particularly of the apparent records collection identified at LANL 

However, it is within the Work Group's purview to judge whether further 

investigation is warranted, given the uncertainty of corroborating evidence 

being uncovered, the subsuming scope of the current SEC period, and the 

resources that will be required to probe this issue further. [Page 3, emphasis 

added.} 

The Mg-Th issue was discussed at the Work Group meeting on March 17, 2015, 

(31_wgtr031715.pdf): 

[Mr. Rutherford:] So some initial work ... found no corroborating evidence for the 

assertion that magnesium-thorium alloys were used or present at Rocky Flats 

And I actually interviewed Rocky Flats personnel to see if one of them were 

aware of the receipt of these types of materials, and none were aware that 

magnesium-thorium alloy was ever present or used in any significant quantity. 

(Page 30.) 

[quoting from an email received from a petitioner] 'You may remember that Dow 

workers submitted affidavits that Dow shipped these plates to Rocky Flats.' 

[Page 31 .] 

... we did additional interviews .. . I talked to a person that was at the Board 

meeting at the time who was involved in this We set up classified interviews at 

the Denver records facility. We interviewed ... four to five workers that were 

directly associated with this work. (Pages 31-32.] 
The Honorable Alex M. Aiar II-Page 25 

And we also went back, and we did additional data captures and research to 

see if we could find ... potential documentation that would show that 

magnesium-thorium alloy was used at the mod center. [Page 32.) 

From that review. from the interviews of the workers, and from the review of 

documentation that we had there, we found no indication that magnesiumthorium alloy -- we had no corroborating evidence that it was used at Rocky 

Flats. But through that research we also identified that Sandia National Lab 

may have been involved in the process, since they were part of the design 

team, and putting together for the mod for the semi-trucks. [Page 32.) 

So we went back to Sandia National Lab. We did a data capture search there 

as well. And, again, we found no information that supported that magnesiumthorium alloy was used at Rocky Flats. [Pages 32-33.) 

[Mr. Fitzgerald:] ... we participated in the NIOSH data capture at the Legacy 

Management Complex in Denver, and I think all of us recognize that the set of 

records that Legacy Management had ... was incomplete. I would say 

significantly incomplete, because Los Alamos ... took quite a few Rocky Flats 

records, a lot of classified records that had'relevance to the weapons program. 

[Page 35.] 

And it is very possible that Rocky Flats, given the source terms they were 

dealing with, which, you know, plutonium, neptunium, and uranium, that magthorium probably almost didn't get on their screen .... 

So, in general, you know, we have not found much in the way of records for 

mag-thorium. Otherwise, this issue would have been gone years ago. We have 

had to rely on interviews of workers, mostly to discount the original input that 

we got that in fact Dow Madison has shipped it. And we haven't found any 

corroboration of that at all, so it sort of leaves us in this situation where we don't 

have any records per se, any clear-cut closure on the thing from that 

standpoint. [Pages 37-38.) 

... we have talked to a lot of people, we have chased down a lot of leads. There 

may in fact be some additional records at Los Alamos to validate this. And, 

certainly, the history of mag-thorium use suggests that it is possible that there 

was an application at Rocky, but to date we have not been able to verify that. 

[Page 38.] 

CHAIRMAN KOTELCHUCK: ... NIOSH -- its records search its search seemed 

to me pretty comprehensive. I was impressed at the number of different ways 

one approached trying to figure out if something was sent, transport receipt, 

different ways, and they found nothing. It's hard to believe. If these are metal 

plates, right, that's somebody would have noticed metal plates coming in, 

and, as you noted. in fairly large weights, right, and sizes. [Pages 50-51.] 
The Honorable Alex M. Azar II-Page 26 

CHAIRMAN KOTELCHUCK : ... l'm still impressed by SC&A's comment that 

you -- that there is really a chance that it really did happen ... we are still talking 

about something -- a material with two or three percent thorium. [Page 55.) 

CHAIRMAN KOTELCHUCK : .. . Suppose it really happened. There is some 

credible evidence -- some evidence; I don't even say credible. if we're wrong, 

this is not likely to have resulted in exposures that would be -- highly affect the 

dose reconstruction for the individuals. [Page 58.)(AII emphasis added.] 

An email from petitioner Barrie dated February 6, 2017, (58_barriemckeel020617.pdf} stated 

(page 2 of 7): · · 

Dr. Dan McKee! recently received new evidence via the FOIA process from 

unclassified notes of a secure phone interview that NIOSH/SC&A/ORAU 

conducted with a Rocky Flats worker ... and shared the document with me. The 

worker interviewed is known to us. 

1. The secure interview concerns the suspected use of large quantities of 

magnesium-thorium alloy metal plates at the Rocky Flats CO plant in Building 

440' (Transport Modification Center or TMC). This worker had previously 

addressed the ABRWH in a Public Comment, stating he worked at the RF Mod 

Center ... The worker requested the Board grant him a secure interview. 

2. The worker testimony (Name redacted PA-cleared copy attached) from Dan 

McKeel's CDC FOIA 17-00140) is that he bolted plates of metal housed in 4 x 4 

ft. wood boxes marked 'RADIOACTIVE MATERIAL' to railroad cars and 

semitrucks for shielding and or strengthening during his work in Building 440 

(TMC). His supervisor stated the metal in the wood boxes was safe and was 

NOT radioactive (see discussion of HK-31 and HM-21 alloys in [4]). According 

to the interview notes, this process occurred at the Rocky Flats plant between 

1984 and 1989. Additionally, the worker relayed in the interview that he was 

well acquainted with depleted uranium and its use in Building 440. It is logical to 

assume that unidentified material housed in 4 x 4 ft. wood boxes marked 

'RADIOACTIVE MATERIAL' was not depleted uranium. 

I 

3. The worker's description in item [2} fits perfectly the extant literature and 

affidavit testimony of a dozen1

Dow Madison, IL workers who manufactured 

magnesium-thorium (2.5-4.0%) alloys HK-31 and HM-21 and shipped same to 

many military, commercial and DOE EEOICPA sites. In particular, they are 

100% certain a major client was the Rocky Flats Plant on CO , where Dow 

Chemical was prime contractor from 1952 to 1975. The same Dow IL workers 

testified RF shipped Mg-thor scraps back to the Dow Madison IL site and 

remelted it. The workers cited the B-Mac and Anderson trucking companies as 

ones that shipped HK-31 Mg-thor alloy plates to RF. [Balded and italicized text 

in original; other emphasis added.] 

The transcript of the February 9, 2017, meeting of the Rocky Flats Work Group 

(59_wgtr020917.pdf) discussion of the Mg-Th issue repeats much of the discussion from the 

Work Group meeting on March 17, 2015, discusses the issues raised by petitioner's email of 
The Honorable Alex M. Azar II-Page 27 

February 6, 2017, and concludes that there is no new information that warrants reopening 

this issue: 

MR. RUTHERFORD: I want to point out that this is not a new interview, that 

was not as Dr. McKee! had indicated. This is an interview ... conducted in 

support of the White Papers that we developed ... during our development of 

that report [dc-rfpmgth-r1 .pdf] we asked for design documents .... we went to 

Sandia. We went to a number of other organizations looking for additional 

information to look for magnesium-thorium alloy. We talked lo the individuals 

there and we have found nothing that would support magnesium-thorium alloy 

being used at Rocky Flats, and we stand by that position at this lime. [Pages 

44-45.J 

[Chair Kotelchuck:] And the letter by Dr. McKee I and Ms. Barrie says that - it 

notes that ... certain NRC regulations exempt magnesium-thorium with less 

than 4 percent for use in commercial products such as lantern mantles and 

welding rods. And I certainly know that that is the case with lantern mantles, 

which I happen to have used ... that that level of radiation, certainly in the 

mantles, is not considered a high level and therefore it's perfectly okay to let 

people in the general public use it. And it's noted in the interview that this is 

considered a cold area. That is to say, the level of radiation is presumably low 

enough that people are not required to wear badges and that they can work 

there. 

So, this is ... a situation where the amount of exposure is quite small and the 

work that's ... reported does not suggest a high degree of machining that would 

involve exposure to small - to dust or to materials from the machining. [Pages 

48-49.] 

[Chair Kotelchuck:f So I don't see ... that we should overturn ... the decision that 

we made earlier to close this. [Page 49.J 

Al the March 23, 2017, meeting of the Advisory Board, Mr. Rutherford noted that some of the 

400 boxes at LANL had, in fact, been searched (2017 _03_23 Board transcript_RF.pdf): 

MR. RUTHERFORD: I would like to say that it's not 400 boxes. We have 

reviewed some of those boxes. When we went through the Rocky Flats early on 

in not only SEC-30, but SEC-192, we have been to LANL, we have captured 

documents and we have, you know, looked for this issue. I know we haven't 

looked in all of those boxes, but it's not 400 boxes. [Page 54.] 

MR. RUTHERFORD: Okay. I would like to point out another thing is we did look 

at the classified documents at LANL. That was the ones we focused on, 

because the operation was a classified operation. And so those were the 

documents we were specifically looking at at [sic] LANL. [Page 55.] 

Mr. Rutherford also observed that thorium doses from the kinds of operations performed in 

building 440 can be reconstructed (2017_03_23 Board transcript_RF.pdf, page 54): 
The Honorable Alex M. Azar II-Page 28 

MR. RUTHERFORD; And I'd also like to point out that, in our opinion, this is not 

an SEC issue. We can reconstruct the thorium exposures from cutting, grinding, 

welding, your two to four percent thorium alloy. And we've done this for a 

number of metals operations. 

At the March 23, 2017, meeting of the Advisory Board, Mr. Kotelchuck summarized the 

reasons for the Working Group's decision not to ask NIOSH or SC&A lo pursue the Issue 

further and to close the issue (2017 _03_23 Board transcript_RF.pdf, pages 37-38): 

And our reasons were the failure of intensive, year-long searches for 

documentation at the plant and agency levels. This had been going on since 

2007 . So, it was ten years of looking at data. And of course, once the issue was 

open, it was clear that both groups, had they seen anything that related to 

magnesium-thorium, would have so reported. So, the searches had failed to 

corroborate the reports from the Dow-Madison workers and ... consideration of 

current limitations on NIOSH resources of staff, time and funding ... we had to 

simply close this. I should note that the vast majority of cancers during the 

years of possible magnesium-thorium use are compensable under the existing 

SEC, which goes to 1983. So, only those with noncompensable cancers not in 

the SEC might be negatively affected by this. 

In summary, the Panel finds that (a) NIOSH reviewed shipment records, receipt records, 

inventory records , and work processes and interviewed workers. No evidence of Mg-Th use 

was found. (b) Several hundred additional boxes of records exist at LANL, but not all have 

been searched. Searches of these records have largely been confined to classified records 

(c) Fabrication of armor for the rail cars and semi-trailers did not involve grinding, smelting or 

welding, which could have produced vapor, dust or small particles, but only shearing, 

punching and bending. (d) As reported by the petitioners, the boxes of plates reported by the 

interviewee are different in size from the Mg-Th plates shipped by Dow-Madison, (4' x 4' vs. 

4' x 8'-12'). (e) Th orium alloys with less than 4% Th are approved for use by the general 

public, including as welding rods, without any need for radiation monitoring. (f) The reported 

concentration of thorium in the alloy material (2%-4%) is relatively low, and any exposure to 

this material is not likely to have resulted in exposures that would have a substantial effect on 

dose reconstruction for individuals with non-presumptive cancers. (g) All the available 

information fo[ Mg-Th for other sites occurred prior to 1984, so if any undocu~ented Mg-Th 

operations did occur at Rocky Flats related to other sites' operations, those exposures would 

be covered under the existing RFP SEC class. I 

The Panel agrees with SC&A that it is within the purview of the Working Group (and 

subsequently the Advisory Board) to judge whether further investigation is warranted, given 

the extensive nature of the search already conducted, that no evidence of Mg-Th use at 

Rocky Flats has been found, the work methods used to fabricate armor for the rail cars and 

semi-trailers, the uncertainty of any corroborating evidence being uncovered, the scope of the 

current SEC period, and the resources that would be required to probe this issue further. 

8. DCAS failed to review relevant documents 

The petitioners raise this issue regarding DCAS in the context of the "approximately 400 

boxes of Rocky Flats documents In storage at Los Alamos National Laboratory" (Appeal 
The Honorable Alex M. Azar ll=Page 29 

Letter, pages 4-5), and also with respect to an alleged statement by the Director of DOE's 

Office of Worker Screening and Compensation Support that LANL is the repository of more 

than 5,000 boxes of Rocky Flats documents that have not been reviewed. (Appeal Letter, 

page 5). This issue was raised by petitioners specifically with respect to the Mg-Th issue, and 

is discussed in point 7 with respect to Mg-Th. However, the petitioners also assert that ij 

'affects every other issue raised.' (Appeal Letter, page 4.) 

With respect to issues 1-6, and as described further in those sections, the Panel's review of 

the record indicates that sufficient data ·and information are available in the records reviewed 

by NIOSH, SC&A, and the Advisory Board to permit (1) estimation of the maximum radiation 

dose for every type of cancer for which radiation doses are reconstructed that could have 

been incurred under plausible circumstances by any member of the class, or (2) estimation of 

the radiation doses of members of the class more precisely than a maximum dose estimate. It 

is the Panel's opinion that review of additional records stored at LANL would not likely result 

in a more claimant-favorable determination .. 

ADMINISTRATIVE REVIEW PANEL CONCLUSIONS 

In our review of this case, we conclude that: 

1. HHS substantially complied with the regulatory procedures set out in 42 CFR part 83; 

2. The original determination contained no evidence of factual error and was supported 

by factually-accurate information; and 

3. There were no errors of fact or in the methods of evaluation, or omission in the principal 

findings and recommendations of NIOSH and the Board. 

SUMMARY AND RECOMMENDATION 

Based upon our review of the administrative record in this case, this Panel believes that the 

regulatory procedures have been complied with, that credible sources of information have been 

used as allowed for under EEOICPA implementing regulations, 42 CFR parts 82 and 83, and 

that the Secretary, NIOSH, and the Board came to reasonable and appropriate conclusions. 

We conclude that the Secretary's prior decision was supported by factually accurate 

information, and that there were no errors of fact or omission in the principal find_ings and 

recommendations of NIOSH and the Board. We recommend no change to the determination to 

deny adding a class of workers at the Rocky Flats Plant for the time period from January 1, 

1984, through December 31, 2005, to the SEC. The Administrative Review Panel has 

concluded that the petitioners' challenge is without merit. 
The Honorable Alex M. Azar II-Page 30 

Respectfully submitted, 

Donald L. 

Miller -5 

2019.04.04 

09:55:45 -04'001 

Donald L. Miller, MD, FSIR, FACR 

Chief Medical Officer for Radiological Health 

Office of In Vitro Devices and Radiological Health 

Center for Devices and Radiological Health 

Food and Drug Administration 

Andrea L. Cohen -

S 

Dlgltally signed by Andrea L. 

Cohen -S 

Date: 2019.04 04 08 55:01 ,04'00 

Andrea L. DiCarlo-Cohen , MS, PhD 

Senior Program Officer 

Radiation and Nuclear Countermeasures Program 

National Institute of Allergy and Infectious Diseases 

National Institutes of Health 

Julie Sullivan -5 

Julie M. Sullivan, PhD 

Biologist 

Office of In Vitro Devices and Radiological Health 

Center for Devices and Radiological Health 

Food and Drug Administration 

Attachment 

Petitioner's Appeal Letter dated December 8, 2017 (without attachments) 
DEC l 8 2017 

Charles Saunders 

Rocky Flats SEC Petitioner 

Terri~ Banie 

Rocky Flats SEC Co-Petitioner 

December 8, 2017 

AnnAgnew 

Executive Secretary to the Department of Health and Human Services 

Room603-H 

200 Independence Avenue, S.W. 

Washington. DC 20201 

Subject: Request for Administrative Review of the denial of Rocky Flats Special 

Exposure Cohort Petition 0192 

Dear Ms. Agnew: 

~ Charles Saunders, Special Exposure Cohort (SEC) petitioner for the Rocky FJats site and 

Terrie Barrie, co-petitioner rcspectfuUy requests a full review of the Advisory Board on 

Radiation and Worker Health's (Board) decision to deny expanding lhe SEC years for the Rocky 

Flats facility beyond December 31, 1983. 

On May 8, 2017, the Advisory Board on Radiation and Worker Health (Board) agreed with 

DCAS's usessment in a close vote (8 to S with two abstentions). 

1 
On November 16, 2017, Acting Secrela!y, Eric D. Hargan, determined that, based on documents 

provided by the National Institute for Occupational Safety and Health's Division of 

Compensation and Analysis Support (DCAS), that DCAS has sufficient data to reconstruct dose 

for the Rocky Flats Workers after December 31, 1983. 

We object to this decision and respectfully request that this decision be reversed and SEC status 

be awarded to all claimants fiom Rocky Flats employed after December 31, 1983. As will be 

shown below, we submit that DCAS failed to uphold their primary responsibility under the 

Energy Employees Occupational Illness Compensation Act of 2000, as amended (EEOICPA) 

and their own regulations. DCAS also violated the mandates of the Administrative Procedures 

Act (AP A) by ignoring evidence and misleading the Board and the Acting Secretary on the facts 

of the petition. 

Applicable Laws 

When DCAS investigates the merits of an SEC petition they are govemed by two federal statutes 

and two federal regulations. In the following discussion we will show that DCAS has violated 

these statutes and regulatioos. 

1. Section 7384 (d) (b) e,cplains the pUipOse ofEEOICPA, 

(b) PURPOSE OF PROGRAM-The purpose of the compensation program is to provide 

for timtly, unifonn, and adequate compensation of covered employees and, where 

applicable, mniivors of such employees, Sl!/ferlngfrom illnesses incurred by such 

employees in the pe,formance of duty for the Department of Energy and certain of its 

contractors and subcontractors. (Emphasis added) 

Additionally, Section 7384q (3) (b) of the EEOICPA, states, 

DFSIGN.4.TION OF .4.DDITION.4.L MEMBERS-Subject to the pro11isions of section 

73841(14) (C) of this lille, the members of a class of employees al a Department of 

Energy facility, or al an atomic weapons employer facility, may be lrealed as members of 

the Special E.xposure Cohort for purposes of the compensation program if the President, 

upon recommendation of the Advisory Board on Radiation and Worker Health. 

determines thol2 
{J) it is not feasible to estimate with :sulfident 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. (emphasis added). 

2. DCAS is charged with the development of dose reconstruction methodology WJdcr 

EEOICP A. Under the Final Rule, it is DCAS' responsibility to detennine whether, 

" ..• it has access to :suff,cient information lo estimate the maximum radiation dose, for 

every type of cancer for which radiation doses are reconstructed, that cauld have been 

incu"ed in plausible circumstances by any member of the class, or ifNIOSH has 

established that II has access to su.fflcient i,iformation to estimate the radiation doses of 

members of the class more precisely than an estimate of the m0%imum radiation dose. 

NIOSH must also determine that It has i,iformation regarding monitoring. source, source 

term, or process from the site where the employees worked to serve as the basis for a 

dose reconstruction. This basis requirement does not limit NIOSH to using only or 

primarily l,iformatlon.from the site where the employee worked. buJ a dose 

reconstruct/an must, as a starting point, be based on some Information from the site 

where the employee worked "(Emphasis added) 

3. The APA places certain responsibilities on federal agencies when mljudicating claims. We 

assert that petitiqning for a site to be included in the SEC, while more complicated, is nothing 

mon: than an individual filing a claim for compensation. DCAS is bound to obey the 

adjudication process under the APA. Otherwise DCAS's conclusions could be considen:d to be 

arbitrary and capricious wder S USC S if DCAS, 

[I] has relied on factors which Congress has no/ inlended it to consider, [2] enlirely 

failed to consider an important aspect of the problem, [JJ offered an explanaJlonfor its 

decision that runs colllllu to the evidentt4 before the agency, or [ 4] is so implausible 

that II could not be ascribed to a difference in view or the product of agency expertise. 

3 
4. 42 CFR 83, Procedures for Designating Classes of Employees es Members of the Special 

Exposure Cohort Under EEOICP A states that an appeal can be submitted it; "substantial factual 

errors or substantial errors in the implementation of the mies" can be established. 

Issues Petitionen Raised but Were Unresolved or Inappropriately Dismissed 

During the course of the SEC petition investigation, we identified specific issues where we felt 

!hat DCAS could not reconslnlct dose with sufficient accuracy because monitoring records were 

inadequate, faulty or uoo-existenL We also provided documents to support our position and, in 

some cases, facilitated classified interviews with former workers who had fust had knowledge of 

the situation. Those issue are: 

• Large Cobalt 60 source - Building 779 and site wide 

• Metal Tritides - Site Wide 

• Safety concerns including the possible criticality in the year 1986 and falsification 

of records. 

• Neptuniwn - Site Wide 

• Critical Mass Lab (CML)- Building 886 

• Plutonium and other radioactive materials in "cold area" buildings- Buildings 

440, 444, and 460. 

• Magnesium/thorium alloy plates used in Building 440 

These issues are discussed in detail further in this request for ieview. We will also explain our 

contention that DCAS misled the Working Group and the Board itself on lhese issues. 

DCAS Failed to Re\llew Relevant Documents 

While this issue arose before the vote on the petition by the full board, we lead with it because it 

affects every other issue raised. 

On March 23, 2017 Dr. David Kottclchuck, the Rocky Flats Workgroup (WO) Chair, 

acknowledged that DCAS had located approximately 400 boxes of Rocky Flats documents in 

4 
storage at Los Alamos National Laboratory, but did not review them. Please see pages 36 and 37 

of the following report 

https://www.cdc.gov/niosb/<>sas/pdfs/abrwfia0l 7/tr0323 I 7.pdf. 

Two years ago on 3/17/15, the Working Group decided not to ask N/OSH or SC&A.10 

pursue th;s issue further and to clos~ the issue. And our reasons were the failure of 

inlensive, year-long searches for documentation at the plll111 and agency levels. This had 

been going on since 1007. So, it was ten years of looking at data. 

Additionally, it is OW' understanding that it is DCAS's intent to review those boxes, when 

resources become available, but only for docwneotation related to the presence of 

magnesium/thorium alloy plates in Building 440. It is our opinion that there very well could be 

records which would support the petitioners' position on many issues. For instance, there could 

very well be a follow-up report on the possible criticality in 1986 or more detailed information 

on tritium production and storage. 

While the idea of 400 boxes sitting in storage without review is disconcerting enough. the 

Director of DOE's Office of Worker Screcni.og and Compensation Support on August 23, 2017 

informed the co-petitioner, Terrie Barrie, that LANL is the repository of over 5,IIOO boxes of 

Rocky Flats documents, which have languished without review. Ms. Barrie referred to the 

thousands of boxes of Rocky Flats documents lhat have yet to be reviewed by DCAS in her 

public comments that night. 

Page 307 hnps://www.cdc.gov/niosh/ucas/pdfsfabrwh/2017/1rfi82317~508.pdf 

Subsequent private conversations with two Wodc Group members confirmed that they were 

amawarc of the amount of documents which were not reviewed by DCAS. 

s 
Because then.Secretary Price did not make a decision on the Board's recommendation, we faxed 

the attached letter (Attachment I) to him on September 11, 2017. We asked him to reject the 

Board's recommendation and award SEC status to all workers at Rocky Flats after December 31, 

1983 " .•• because of DCAS's negligence in reviewing all of the evidence." 

This letter should be consideted as part of the administrative record and rcviewable by the panel. 

This should not be considered "new" evidence. While it is true that this information that there 

were 5,000 boxes of document provided by DOE was not relayed to the Board or the Rocky Flats 

Work Group during the petition's deliberations, this infonnation was relayed to the Secretary's 

office prior to the Secretary making a decision on the petition. We not only faxed the letter 

before the Secretary made a decision but we also, on October 3, 2017, asked that the letter be 

posted to the NIOSH Docket 032 (Attachment 2). More than two months have passed and this 

letter has yet to be posted to the NIOSH DockcL 

Please note that on J\llle 19, 2017 a Freedom of Information Act (FOIA) request was submitted 

by the co-petitioner requesting the unclassified indices of the 400 boxes provided to OCAS by 

the Los Alamos National Lab. Those documents have not yet been released by DOE. In 

addition, Dr. Daniel McKcel, Jr., MD, co-petitioner for Dow Madison SEC petition 0079, filed a 

similar request with the National Nuclear Safety Administration. (Attachment 6) 

DCAS's failure to research these aforementioned documents, despite knowing of their existence 

for many years, and routine dismissal of specific issues raised, demonstrates that science behind 

this program is not based on a thorough review of records. Therefore, the efficacy of their dose 

reconstruction methodology for Conner Rocky Flats workers will be questionable, depending on 

the size of any one box and how full the boxes are, there are potentially miffions of documents 

that have not been analyzed. 

It is quite possible that in the trove of documents there is at ltasl one, and likely more. pieces of 

paper that confirms that magnesium thorium alloy plates were used in Building 440 to modify 

the rail cars and truck transports. It's possible there is at ltast on~ document that explains why 

plutonium or other radioactive materials were present in the "cold" buildings of 444 and 460. 

6 
It's possible there is aJ least one document providing evidence that metal tritides were present at 

Rocky Flats after December 31, 1983. These possibilities are not dreamed up lo keep this 

petition alive; these possibilities are supported by worker interviews and testimony as to being 

factual, to which DCAS routinely bas responded with an institutional bias, wrongdoing, and 

anogance which dismissed bard evidence and discredited testimony from site experts, including 

a senior scientist, who were hands on at Rocky Flats. 

NIOSH is knowingly creating dose reconstruction models based on incomplete infonnation, 

which is likely to result in an inaccurate characterization of working conditions at the site. Thus, 

all subsequent technical basis documents fall victim to the "garbage in, garbage out" principle. 

Depending on' the size, quantity and quality of each box's contents, it is reasonable to assume 

that facility infonnation exists to challenge NIOSH's rejection of the SEC. By rejecting the SEC 

without reviewing facility information, NIOSH has abandoned its obligation to claimant 

fuvorability. When the purpose of the SEC classification is to acknowledge absence of sufficient 

data, a decision to ignore 5,000 boxes of data that may influence the application and outcome of 

dose reconstruction in and of itself becomes grounds to establish the SEC. 

The APA states that a federal agency's decision is made in an arbitrary and capricious manner if 

that decision, 

" .•. relied on factors which Congress bas not intended it to consider, [2] entirely failed to 

consider an important aspect of the problem, [3] offered an explanation for its decision 

that runs counter to the evidence before the agency, or [4] is so implausible that it could 

not be ascribed to a difference in view or the product of agency expertise." 

DCAS "entirely failed to consider an important aspect of the problem" by not reviewing 

the thousands of boxes. DCAS is aware that thousands of boxes full of documents may 

provide a more robust understanding of the Rocky Flats plant DCAS failed to evaluate 

these documents and failed to provide a complete assessment of the evidence to the Work 

Group and the Board. 

7 
Pattern of Institutional Bias and Wrongdoing 

After the Rocky Flats SEC petition 0030 was decided on October 3 2007, the co-petitioner filed 

a Freedom oflnfonnation Act Request (FOJA) for all emails related to that debate. A selected 

group of emails can be found near the bottom of this page, "Emails obtained through FOIA 

Request .. , redacte pursuant to 42 CFR 83.I8(a 

For background, SEC petition 0192 was filed on August 23,201 I. DCAS qualified this petition 

betause methodology for tritium exposure was not developed. The original EvaJuation Report 

(ER) was issued on Septembers. 2012 which determined that DCAS bad sufficient data to 

reconstruct dose for tritium exposure. 

It was discove~ through the docwnents obtained through the FOIA request, that relevant 

information was withheld from the Bo&ld's Rocky Flats Work Group, specifically, the number of 

thorium strikes performed at Rocky flats during. This was first brought to the Board's atteotion 

on September 18, 2012. 

Page 338 https://www.cdc.gov/niosh/rn;as/pdfs/ubrwh/20 I 2/tr0918 I 2.Q!!f Also see attached 

Power Point Presentation lo the Boanl (Attachment 3) 

The revelation that vi1al infonnatioo was withheld from the Board was not acted upon by either 

the Board or OCAS. Because of this inactio~ the Alliance of Nuclear Worker Advocacy Groups 

(ANW AG) filed a complaint with the Health and Human Services' Inspector General oo 

Feb~ 18,2013. reaacte pursuant to42 CFR83.18 a 

Subsequently ~ possibly coincidentally, DCAS revised the ER on September 20, 2013 and 

determined that DCAS cannot m:onstruct dose for thorium, U233 and neptunium CXJ>C)SWeS 

through December 31, 1983. DCAS admitted that they did make a mistake about the number of 

thorium strikes they relied on for Petition 0030. 

8 
The above infonnation is relevant because it appears that DCAS was also not forthcoming with 

the Work Group or Board during Ibis year's deliberations. We are not saying that DCAS 

deliberately withheld information from the Board. However, there were factual 

misrepresentations especially during the deliberations this year which probably swayed the 

Board's majority and eveo Acting Secretary Hargan. The most obvious misreprenscntation(s): 

classified interview regarding the Cobalt 60 source exposures; that exposure to metal tritides was 

dt!clded during Petition 0030; that radiation exposure in the "cold buildings" was dt!cidd during 

Petition 0030; and all safety concerns were dt!cidt!d during the Petition 0030 deliberations. 

The Cobalt 60 Source 

DCAS provided an incorrect response to the Board regan:ling a classified interview that was to 

take place concerning the large Cobalt 60 source. 

During the Februaiy 9, 2017 Work Group meeting. DCAS infonned the Chair that the cunent 

custodian of the SOID'Ce had infonnation on exposures that could only be relayed in a classified 

interview. 

Page 27 2/9/17 transcript. 

MR. RUTHERFORD: Okay. Now, I do have to say during that - during our interview 

with the source custodian, the person indicated that they were a [identifying information 

redacted] and that they had other exposure concerns that they could not discuss over the 

phone. Given the status of this petition evaluation I thought it was - you know, we - and I 

discussed this with both Stu and run and we felt it was important to conduct this interview. 

So we are currently working on setting up a classified - or a secure interview and we would 

like to have a cleared Work Group Member and SC&A present for the interview as well. 

The co-petitioner inquired whether a classified interview was held with the custodian before this 

meeting. The co-petitioner did not receive a response. however, Member Kotelchuck followed 

up with this question from the Man:h 23, 2017 meeting: 

9 
https://www.cdc.gov/niosh/ocas/pdfs/abrwh/2017 /tr0323 I 7 .pdf 

Page 76 MEMBER KOTELCHUCK: Yeah, I mean, if I may say, on the cobalt-60, the 

assertion is that may say, on the cobalt-60, the assertion is that we didn't interview 

someone. 

OCAS's responded with a summary of a completely different, and unrelated, classified 

interview. It appears that this interview was conducted with a fonner Rocky Flats employee 

years before. 

MR. RUTHERFORD: Actually, the cobalt-60 source, the person did request an 

interview. That interview was conducted in a classified setting. The individual was not 

concerned with Cobalt-60. She was concerned with a bitiwn caplure system that was 

employed during the production years. She did not identify any situation where 

exposures could have been received from work with that unit. I can't discuss all ofit, but 

I can give you that much. But, in fact, her interview said she had no issues with the 

cobalt gamma cell. It was routinely surveyed. We could only come up with two or thrcc 

of the leak checks, but we did find the complete work package for the removal of the 

gamma cell and we had no indications there was ever any problems with that 

Even if this was an honest mistake and Mr. Rutherford confused a completed classified interview 

with a former Rocky Flats employee with the proposed interview with the custodian of thii 

Cobalt-60 source, this response misled the Board to assume the classified interview concerning 

additional exposures ftom the soun:e was completed and nothing relevant was discovered. We 

still do not know what exposure concems the custodian has. 

Metal Tritides 

DCAS reported during the March 23, 20 I 7 meeting that they assessed the presence of metal 

tritides at Rocky Flats. 

10 
Page 75 Metal tritides, we actually assessed the metal tritide issue. I actually did get the 

docwneots from Terrie. The only period where we initiaJly thought there could possibly 

be was the mid-70s time em when some activities were going on. However, when we 

did classified search on that and discussions, we concluded that this was not a concern 

during that period. And so we have assessed that and it was reported to the Work Group. 

And we also gave SC&A the opportunity to rebut that 

We have no recollection of verbal report nor did we locate a white paper on the presence of 

metal tritidcs. In fact, we only learned of the possibility that metal tritidcs could have been at 

Rocky Flats on March 17, 20 IS, when Sanford Cohen and Associates made this comment, 

Page 188, https://www.cdc,gov/niosh/ocas/pdfs/abrwh/20J S/witr031715.pdf 

" ... some language that appears that there was some metal tritides associated with what 

was handled at the facility. An~ of course, as we know, metal tritides are a lot different 

than tritiated water or elemental tritium. And I'd like to hear a little bit more about tritides 

and how that fits into this idea that really other than the 1984 - ·I'm sorry, the August 

1974 incident, how does that play out, he idea that some of this might have been 

tritides?" 

DCAS acknowledges that tritium was present at Rocky Flats during its entire operation_ yet they 

only investigated the presence of tritides during the mid-l 970s. DCAS failed to thoroughly 

investigate the presence oftritides at Rocky Flats after December 31, 1983. lfhey ignored a 

document provided by Jon Lipsky, fonner FBI agent who led the raid on Rocky Flats. This was 

an interview conducted on June 11, 1991 and provided to NIOSH. The former worker, who was 

a chemical engineer, stated, "the tritium site was separate. Due to the ongoing practice of 

conducting Classified Projects at Rocky Flats, tritium was produc~d and disposed of at the plant, 

in the area of the 207 ponds." (Emphasis added) 

A criminal charge can be filed against a person who provides false information to the FBL Both 

DCAS and the Board chose to overlook this important documcnL The assumption for dose 

11 
assipmeot for tritium exposure is based upon the 1973 incident. DCAS failed to further 

investigate whether there was an ongoing process of tritium production, storage (which could be 

the c~tion of metal tritidcs) and disposal. 

It also sheds a new light on the March 21~ 2006 email shewn on slide 3 of the petitioners• 

September 18, 2012 Power Point Presentation. DCAS obviously had some information about 

tritium sttippiog. In redactecl pursuantto 42 CFR 83 .18( a) 

re ctecl pursuant to '1-2 CFR 83.18 a) 

The explanation given much later was that this was probably a typo and that the process was, in 

fact, "titanium stripping.fl 

However, this argument no longer holds water. OCAS would not be interested in tillnium. 

Theu- only concern is radioactive materials. There would be no need for the author of the email 

to make an inquiry for titanium stripping. It makes perfect sense to ask for more iufonnation on 

tritium stripping. And obviously. this process was confirmed before the ER of April 7, 2006 was 

issued. 

DCAS failed to fully rescan:b the issue of whether metal tritidcs were pmentel Rocky flats. To 

the best of our knowledge, the did not report their findings to the Work Group, Board or to the 

petitioners. This violates die F"mal Rule bcca~ despite bavihg iatormation on lritium storage 

and stripping they neglected to identify the process, duration and location. DCAS also violated 

the APA because DCAS ignored the evidence before them and did not adequately address the 

petitioners' concem 

12 
Safety Concerns/Record falslflcation/Record datnaclioa 

Two issues that will permit a group of workers to be included in an SEC is evidence of. 

falsification of records and destruction of t'C(:ords. The petiliooers provided evidence of both. 

DCAS asserts that Local 8031 '"s safety concerns were fully reviewed and closed out in 2007. 

However, we would like to point out that the safety concerns discussed in 2007 did not inelude 

lbe possible criticality which occUJTed in 1986, reoactecl pursuant to 42 CFR 83.18(a) 

If there was a criticality in 1986 and ignored by DCAS. then. it is likely 1ha1 the melhodology to 

reconstruct dose is woefully underestimated. Likewise, it is likely that if the plutonium weights 

wete - falsified, it would not be a stretch to conclude that dosimetry . reconb. for that incideot were 

also altered. 

Several workers provided examples of dosimetry documenls that showed ctOSS-OUts and whiteouts. One worlcer bed a classified interview which she related that a grievance was fiJed by the 

Local a,ncerning using a pencil to rccard dose. 

The petitioners provided a Department of Energy (DOE) doc:ument concerning the destruction of 

records. That document was confirmed to be origioatal by DOE, 

redactecl pursuant to 42 CFR 83. l 8(a 

M April 25, J996 - A motatorium was pllleed on the destruction of all records at the Site, 

including reconb_ locatm at the Denver Federal Record Cenler. No destruction would take place 

of any recotds unless approved by the RFFO Chief Ccunsel." 

13 
In addition, a fo1U1Cr worker came forward and testified before the full Board that she destroyed 

records under orders from her superiors. The worker also agreed to be interviewed in a classified 

setting. 

As is common with DCAS, when it comes to worker testimony (similar to how they treated the 

sworn affidavits from Dow Madison concerning magnesium/thorium alloy plate shipments to 

Rocky Flats}, DCAS rejected these two former workers account and explained away their 

knowledge of the practices at Rocky Flats. 

Neptunium 

The Evaluation Report issued on September 9, 2012 stated that neptunium was handled in small 

quantities at Rocky Flats. An internet search provided a document which showed that there was 

a process for neptunium production. This document was provided to DCAS and the Work Group 

on February 26, 2013, eight days after ANWAG submitted their complaint to the Health and 

Human Services Inspector General. 

Again, seven months after the submission of the DOE document, DCAS determined they were 

unable to reconstruct dose with sufficient acclll'Bcy for neptunium exposure prior to January I, 

1984. This was accepted by the Board. 

The assertion that DCAS can reconstruct dose for workers after December 31, 1983 is based oo 

the premise that they can use plutonium bioassay data for this purpose. DCAS had plutonium 

bioassay results prior to December 31, 1983. If those records were not sufficient then, why are 

they now sufficient after that date? According to a 2005 DOE document, "Inspection of 

Environment, Safety and Health Programs at the Los Alamos National Laboratory'' DOE 

determined that plutonium bioassay cannot be used to reconstruct neptunium exposure. 

14 
Critical Mass Lab (CML) -Building 886 

A few months before the March 23, 2017 meeting, DCAS released their final white paper on the 

Critical Mass Laboratory, Building 886. 

The petitioners consulted with Dr. Robert Rothe, the senior scientist at the CML. He participated 

in a number of meetings and was interviewed by NIOSH. He voiced a number of concerns with 

the November 2016 white paper, "Reassessment of Internal Radiation Dose from Sourccs at the 

Rocky Flats Critical Mass Laboratory". For instance, NIOSH focused only on HEUN. He 

reminded us that CML also bad 37S kg of very old Pu because it was rich in Am-241. He also 

explained that workers would have been exposed to HEUN when there were no experiments 

being conducted. He said that the CML staff was required to inventory HEUN "which would 

have exposed workers to 4 months of dally hands on contact with irradiated radioactive 

material." He also questioned NIOSH's assumption that the average experiment lasted 70 

minutes. He believes this is a low estimate. He contends that about IS to 20 minutes would be 

devoted to the "slightly super and slightly subcritical conditions" alone. It would not have been 

safe to just ramp it up to just below criticality too fast He also recalls a few experiments which 

were "intentionally kept at or near criticality for hours." 

It is important that the panel reviews additional objections to DCAS's assessment of the ability 

to reconstruct dose for the CML posted to the NIOSH docket, 

https://www.cdc.gov/niosb/ocas/pdfs/d321canoll-043017-l.pdf 

Mme importantly, page 30 of the November 2016 white paper, "Reassessment of Internal 

Radiation Dose from Sources at the Rocky Flats Plant Critical Mass Laboratory", 

hltps ://www.cdc .~ov/niosh/ocas/pdfs/dos(dc-rf oirdcm 1-rO. pd f, states, 

"However, NIOSH has found no indicallon.that ca,uirmatory bioassays were performed 

for employees involved In the clean-up of any of the accidental UNH spllls. Fission and 

activation produels, which decay primarily by beta/gamma emission, are not likely In any 

15 
case to have been detected by bioas.say intended to detect alpha particles emitted by 

uranium or lransuronic radionuclide.s. " 

The Final Rule demands that DCAS, "" ..• bas access to sufficient infonnation to estimate the 

maximum radiation dose, for every type of cancer for which radiation doses are n:construcled, 

that could have been incum:d in plausible circwnstanccs by any member of the class." 

DCAS miled to obtain the most basic evidence to substantiate that adequate docwnents arc 

available to reconstruct dose for the workers who cleaned up spills in Building 886. 

The petitioners question why NIOSH was unable to locate bioassay for these workers. Was the 

bioassay protocol violated? Did Building 123, the dosimetry lab, misplace the urine and fecal 

samples? Were the bioassay records destroyed? And, if fission and activation products can't be 

detected by bioassay, how does NIOSH plan to reconstruct dose for beta/gamma exposures for 

these workers? 

These questions remain UIIIIIISWered. And because they are, DCAS bas violated the Final Rule 

as mentioned above. 

Neutron exposure to worken in Building 444 

Since 2009, the petitioners have raised the concern that radioactive materials were present in 

non-radiological buildings. This stems from the Department of Labor's Site Exposwe Matrix 

(SEM) which lists the thousands of toxic substances, by building, in this data base. SEM was 

developed using approved DOE documents. 

As recently as June 12, 2017, plutoniwn was listed as being pn:seot at some point in Building 

444. This was presented to DCAS and the Board before the Board meeting in Man:h of 2017. 

DCAS bas not responded whether their dose reconstruction methodology incorporates plutonium 

exposure for workers in Building 444. 

16 
A.Dodier recent development was whether worlcms in Building 444 were monitored for neutron 

dose. This question arose when the petitioners realized that both betyllium and depleted uran.iwn 

were present in that buildina. 

1be petitioners reviewed lhe National Institute for Occupational Safety and Health's (NJOSH) 

document. ,.Health Hazard Evaluation Report No. 96-0198-26S I authored by John Cardarelli. 0, 

M.S., and mkcd whethcdtapplicd to Rocky Flats Building 444, since that is where the majority 

of the depleted uranium wus- located. The Cardarelli report stases, .. For example, an equal 

nLU11ber of neuttons can be produced with either a large amount of Jow-esuiched or dep1eled 

uranium (238U) or a small amount of highly enriched uranium {23SU)."' W~ wondered, at the 

time of our ioquiry. whether workers in Building 444 were monitored for neutron exposure. 

DCAS responded ii\ an email to the Work Group on 3/10/2017 (Attachment 4). DCAS stated, "'A 

search of the Site Research Database (SRDB) has fowtd no documents indicating that there was 

a neutron monitoring program in Rocky Flats Building 444." They also stated that they located a 

little mote than 60 documents in the SRDB related to Building 444 but none were relevant. 

An advocate for this program reviewed Che Comprehensive Epidcmiologie Data Rcsoun::c 

(CEOR) for Rocky Flats. Her analysis shows 874 ICCOl'ds for workers who were monitored and 

bad neutron exposure between 1914 and 1989. At least 64 of those records sho\Wd 100 mr or 

more of neutron exposure. It is obvio~ that there was some kind of monitorins pmsmm for the 

workers in 444. (Attachment S provided to the Boanl March 23, 2017) 

OCAS's email of3/10/17 lllso states, ,.1'1tnt!/o,y, It W()ll/d tau obolll J,Ot/9 ig of DU In 

inlimllle contact will, Btr to 61w a IOK rt1te of I m,fflillu, al a mna." 

Rocky Flats had an annual inventory of over 300 me«rk tom of DU between 1984 8Dd 1988, 

with three of those yem exceeding 400 metric tom annually. The petitioners believe that it was 

likely that at least 1,000 kg of DU was present o.n any gi'VCll day. 

redacted pursuant to 42 CFR 83.18(a) 

17 
lt is our opinion that DCAS gtossed over this evidence, too, because it did oot fit in with their 

accepted dose reconstruc:ticu methodology. Again. violating thermal Rules and APA. 

Magnesium/Iboriom Alloy Plates 

This is another long-standing issue that has yet to be resolved satisfactorily. This issue originally 

arose &om fourteen fonnet workers from the Dow Madison Company who offCRd sworn 

affidavits that truckloads of trus material was shipped to lhc Rocky Flats plant. DCAS, in 2007, 

SUQC$ted that the Dow workeJS were mistaken and that the shipments actually went to the 

Rocky MountaiJl Arsenal redacteo pursuant to 42 CFR 83.18(a) ,. 

One fonner Rocky Flats worker came forward in 2013 and alluded that special, classified 

materials were used in the Modification Center located io Building 440. The worker was willing 

to be interviewed in a classified setting, however, we do not know if this interview took place or 

what infoima1ion this worker provided to DCAS. Please see details ii\ Attachment 6 as provided 

by Dr. Daniel MeKeel. Jr •• MD. co-petitioner for Dow Madison SEC petition 1>079. This 

information was provided to the Board on Man:h 21, 2017 prior to the Board' s decision oo 

March 23. 2017 to deny expanding the SEC years for Rocky Flats. 

As noted above, DCAS admitted that there were approJCimatcly 400 boxes of documenlS localed 

at LANL which might contain information on magnesium/thorium alloy plates usage at Rocky 

Flats. Yet, despite knowing of these records fur years, DCAS has yet to review them and doesn't 

plan to do so until January 2018. 

Addltioaal Evidence oflgnored or R~jected D0cu111entation 

Fotma" Rocky Flats workers advised NIOSH and the Board during beth SEC petition 

disc11Ssioos about in.adequate air monitoring and reading of dosimetry badges. ·we provided 

DCAS and 1he Board during the evaluation of the 0192 petitioo numerous documcats from 

government agencies ineJuding the Government Accountability Office and the Defense Nuclear 

Facilities Safety Board confirming the 0030 petitioo.s and the former workers' tesUmoaies that 

18 
the Rocky Flats monitoring programs which were intended to protect the workers were deficient 

and inadequate. bttps://www ,cdc. cov/niosb/ocas/pdfs/d32/bwrie0718 l 3 .p,df. 

The former FBI agent who led the raid on Rocky Flats in 1989 provided nmnerous documents to 

NIOSH. He explained. in an email to NIOSH dated (Attachment 7) that, 

Tiu: documenl in question was re/eared lo /he f11'h/ic through the hearing held in /992 by 

Subcommittee on lnvestiga1ions and Oversighl of the Committee on Science. Space, and 

Technology (Chairman Haward Wolpe), U.S. House of Representatives. One Hundred 

Second Congress, Second Session which resulted in the reporl entitled ErrvironmenJal 

Crimes al the Rocky Flats Nuclear Weapons Facility. 

In addition to FBI interviews, the f onner FBI agent provided other docwncotalion to support the 

SEC petition. Dominic Sanchini was the President ofRo<:ky Flats from 1986 and through the 

time of the raid. He kept a contemporaneously written diary on lhe day-to-day activities at the 

planL Excerpts of this hand-written diary which supported om position were provided to NIOSH. 

reaacte pursuant to 42 CFR 83.IS(a 

The documentation was obtained from government sources yet, inexplicitly, this and other 

evidence located in the Site Research Data Base has been ignored by DCAS and the Board. 

We strongly recommend that dte panel review every meeting where the Rocky Fl81S workers 

provided comments and documentation to the Board . 

Sammary 

Acting Secretary Hargan detailed seven Fiodings on which he !med his decision lo deny 

expanding the SEC ycaus for Rocky Flats claimants. Below is our response to the first five 

Flndings. 

19 
1. "The potential sources of internal radiation lbat NIOSH investigated during its evaluation of 

the proposed class included exposun:s to bitiwn, neptunium, thorium, uraniwn-233, and fJSSion 

and activation products of the Critical Mass Laboratory (CML). The modes of exposun: for the 

radionuclides of concern were ingestion and inhalation." 

Petitioners' respome: DCAS neglected to inform the Acting Secretary lbat they also 

investigated Cobalt-60 and magnesium/thoriwn alloy plates. Because DCAS failed to 

investigate the thousands of boxes of docwnents located at LANL, these two issues have not yet 

been resolved. 

2. "NIOSH concluded that tritium doses from the on-site, environmental release in 1973 can be 

~nstructed using the bioassay results collected after the release. Bioassay results from 

potentially exposed individuals can be used to reconstruct their tritiwn doses for the time period 

from January 1, 1974, through December 31, 2005." 

Petitioners' response: DCAS was aware of the petitioners' issues of the preseDCe of metal 

trititdes and on-site production and storage of tritiwn. DCAS failed to fully explore these issues. 

It failed to review the thousands of documents located at LANL to detennine whether those 

docwnents would provide a better understanding of the presence of tritiwn at Rocky Flats. 

Therefore, it is impossible to tell if their dose reconstruction methodology for tritium exposure is 

sufficiently eccurate. 

3. "Likewise, NIOSH concluded that doses from fission and activation products at the CML can 

be reconstructed using workplace air monitoring results coupled with information about the 

power level and duration of CML experiments." 

Petitioners' response: DCAS completely ignored Dr. Robert Rothe's testimony and oral 

history of the experiments which were conducted in CML. DCAS normally substantiates the 

majority of their dose reconstruction methodology for Rocky Flats based solely on bioassay 

results. For those exposun:s which do not have bioassay information, SEC status was granted 

(neutron, neptunium, thoriwn and uraniwn-233 exposures, e.g.). Yet, for CML, DCAS asserts 

that the limited air monitoring documentation (page 24, 

bttps://www.cdc.gov/niosh/ocas,'pcl&/dpsldc-rlpirdcml-rO.pdf) is sufficient to reconstruct dose 

for the exotic fission and activation products produced during criticality experiments performed 

20 
by CML between December 31, 1983 and the last day radionuclides were present in Building 

886. 

4. "The principal sources of external radiation doses for members of the proposed class were 

evaluated in the SEC.Q0030 RFP evaluation report. SEC-00030 concluded that all external 

doses except those for neutrons could be estimated with sufficient accuracy. Tiu~refore, wUh 

ICSpect to SEC-00192, NIOSH concluded that there is no need to again assess external exposures 

and dose reconstruction feast"bility at RFP. 

Petitioaen' response: Cobalt-60 is a gamma emitter. Questions remain about the other 

exposures the source custodian offered to share with DCAS. We also raised whether neutron 

dose is assigned to workers in building 444, where tons of depleted uranium and the fact that 

plutonium was present 

5. "NIOSH also concluded that opemtions that posed significant potential for internal and 

external exposure to neptunium, lhoriwn, and uranium-233 bad ended by December 31 1 1983. 

Consequently, 1here is no need to reconstruct dose for the time period." 

Petitionen• response: This is not accmate. DCAS, in fact, identified one additional operation 

after December 3 J, 1983. DCAS also asserts that they can captW'C neptunium exposure through 

plutonium bioassay. We supplied a 2005 DOE document, '1nspectioo of Enviromncnt, Safety 

and Health Programs at the Los Alamos National Laboratory" where on Page 37, DOE found 

that "Standard plutonium controls, such as plutonium bioassays, would not be adequate for 

nepttmium but were not evaluated and/or modified for lhis operation.,, The panel should also 

note that the SEC petition for the Los Alamos National Laboratory was granted through 1995, in 

pait, due to the inability to reconstruct dose for neptuniwn: · 

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DCAS has violated both the Fmal Rule and the ACA. They failed to identify all processes that 

occmrcd at Rocky flats. locate DCf essary soma: doc:umen1s needed to dewelap a method to 

reconstruct dose fur each and t111ery caocer. They have ignored evidence submilkd Co them or 

provided an explanation as to why they lejccted evidence in a way that • ••• if :so ;,,,,,,,,,n;61r tlllll 

it ca"1II not 6e IISCriW to 11 4ifff!ff!II~ in *w or die prodad of "llO'l:Y t.Jq,dlise." 

The petitioners nspectfully ~ that the denial ID expend the SEC class beyond Drttmber 

31, 1983 be voided and that the class be expanded through the date the Rocky Flats Pl.ant closed. 

Sinc:crcly. 

signature on file 

Rocky Flats SEC petitioner 

signature on file 

Terrie Durie 

Rocky flats SEC co-petitioner 

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