: omwlveas tg the oc Flats! Plat were re sinilrly. or id otiealy rowed and ters cannot :

.... - be'disageregated from the union workers with respéct to their work and exposur
=: considering whether this was an adequate justification;. swe first looked to'42:CFR. RE 83; 13(0))s"
/ which provides t that NIOSH’s evaluation report must: inchide “A Proposed finition of | the class

: expand the class to include non- -union workers. in addition to the April 7, 2006, ‘Bvaluation .
is OSH, provided us included ‘a “Professional Judgment” document "- -

: Nephrol ts tl ape Ane “NIOSH will
+. GOnsider the adequavy and credibility of any evidence.provided.”. NIOSH did not provide’
# with. additional information’ about, how it considered. the adoauacy and cre of the:

. decisio to expand the: ola on italy accurate information. :

- : Petitioriers also reer to “ri undated memo” fom the Off otcears

-; issue, We also, note that under 42 CFR Part 83, OMB oes not have any'role in the decision: ”
-intaking process about whether or not the Secretary of Health and Hurrian Servites should add a He
“eliiss of employees to the SEC."'In additioi, petitioriers have provided't ‘fo evidence =

demonstrating an “imbalance i inthe hivisony Board’s membership” that. would favor

: "infact; balance ov the Advisory Board required by Execut e Order: 3179,
section 4@) (Members shall include affected workers and their representatives, an



NIOSH Response to HHS Administrative Panel Report on Rocky Flats _ Page 4 of 10

Griffon was not involved in radiological activities at the other sites where USW
had a presence. Thus he lacked any knowledge of the radiological activities at
these other sites and therefore his relationship to the outcome of those sites is
more attenuated than his ties to the radiological activities that were directly
impacted by his consilting activity ~

Sécond, the likelihood of any future financial benefit to Mr. Griffon from the
USW due to his work on the Board arising in connection with other sites where
USW had a presence was speculative at best. To consider Mr. Griffon conflicted
with any site with a USW presence or involvement would substantially impede
his ability to contribute to the ABRWH. Obviously, this determination required a
balancing of issues by Departmental and Agency officials. The officials charged
with making the conflict of interest determination viewed the importance of Mr.
Griffon’s significant potential contributions to the work of the ABRWH to greatly
outweigh this remote, speculative concem and exercised their judgment as.
allowed within the confines of the waiver process, .

© Although not a substantive matter, it should be noted that the Panel’s report
mistakenly indicates that Mr. Griffon’s 2006 waiver is incorrect in naming one of
the specific sites where Mr. Griffon must recuse himself from participation as
“INEL.” (See Panel Report, page 12, footnote 7, note within the CV excerpt).
This site has had multiple names including Idaho National Engineering
Laboratory (INEL), Idaho National Engineering and Environmental Laboratory
(NEEL), and others. : :

© The second paragraph of the Panel’s report discussing Mr. Griffon’s potential
conflicts of interest properly lays out the initial determination of the conflict of -
interest officials regarding specific party matters at specific sites where Mr. -
Griffon was contracted to perform work for the USW. This paragraph does not
correctly portray the conflict of interest officials’ decision-making process. As
explained above, this determination was made after an informed discussion and
was based on the regulatory criteria, including (but not limited to) the speculative
nature of any financial gain for Mr. Griffon if he were allowed to participate in
Board deliberations regarding other sites with USW involvement measured
against the importance of Mr. Griffon’s potential contributions to the Board’s
deliberation. This discussion was not documented in the waiver because such was
not the practice, as discussed above, Based on requests from the Panel, the Panel
was informed of these conversations between conflict of interest officials and
participants in the discussions, and notes from those discussions were made
available to thé Panel. It is unclear whether the Panel considered this information.
It should be further noted in this regard that NIOSH is unaware of any guidance
from the Department or other sources instructing that all discussions regarding _

. conflicts of interest for Federal Advisory Committee Act members be documented

in writing, . : .

? The list of covered facilities under EEOICPA is publicly available on both the NIOSH Office of
Compensation Analysis and Support and Department of Energy EEOICPA websites.



ROCKY FLATS SEC 00030 APPEAL OF HHS DECISION CATED AUGUST 6, 2007

the only ones that performed hands-on (hands in the gloves) weapons production and
chemical recovery operations at the Rocky Flats site and therefore are a distinct and
separate class with clear and inherent danger in their positions for the highest
occupational exposures.

8) Significant Divergence in Scientific Opinion. SC&A stated that it, too, has concern
over NIOSH’s ability to implement its stated methods, approaches, and coworker
models to enable “dose reconstruction with sufficient accuracy,” as prescribed by 42
CFR Part 83.”. We are concerned that while the Pacific Northwest Nuclear
Laboratory stated in 2003 that “the precise nature of Super Class Y material is not
known”, that NIOSH developed adjustment factors to accommodate these exposures
and used only one single data point to determine particle size for modeling.
Fundamental facts remain unknown about high fired oxides. We are concerned that
the standard being applied appears to be whether something is “plausible” or not. We
repeatedly here things like it is plausible that a model will work or it is plausible that
the 0s recorded met that the dosimeter was not turned in. The Webster New World
Dictionary defines the word plausible as “seemingly true; often implying disbelief” or
“applies to that which at first glance appears to be true .. . but which may or may not
be so." We do not plausibility is an appropriate standard by which to make decisions
as important as whether or not sick workers should be compensated. The fact that it
has been more than two years and significant factors are still unresolved means the
petition was valid and should be approved. The fact that NIOSH has modified the
site profile, added new TIBs, changed the particle size for high fired oxides,
developed new co-worker models, added adjustment factors, tweaked other models,
Etc. , means that NIOSH could not accurately reconstruct dose otherwise they would
not have made all the changes. Department of Labor Official Shelby Hallmark asked
the question “Does it make any sense to continue to defend a dose reconstruction
process that will just get more complicated and attenuated?” As evidenced by the
addition of nine new technical guidance documents in the time since the Rocky Flats
Petition was submitted, we would have to agree with Mr. Hallmark, this process has
gotten far too attenuated to allow accurate dose reconstruction.

It is for these reasons and based on the facts described above, that we hereby formally
request a review of the Secretary of HHS’s decision dated August 6, 2007, that determined
Rocky Flats workers from 1967 to 2005 and those exposed to dose other than neutrons from
1952 to 1966 “do not meet the statutory criteria for addition to the SEC.” Please count this
letter as our formal request for administrative review and our appeal of the Secretary’s
decision.

Respectfully,

USWA, Local 8031 Official Petitioner-Designated Representative

PAGE 7 OF 7 ‘SEPTEMBER 6, 2007


NIOSH Response to HHS Administrative Panel Report on Rocky Flats. _ Page 9 of 10

- Item # (8) “Inappropriate Expansion of the Rocky Flats Class of Workers from its
Original Submittal as a ‘Steelworker’ petition to include all Rocky Flats Workers”

- Two points of‘appeal (“Process Basis” #8 and “Scientific Basis” #7) addressed the fact
that NIOSH expanded the class that was evaluated to include employees not represented
by the Steelworkers (USW). The administrative review panel made no recommendations
for further action regarding point of appeal #7. For point of appeal #8, the administrative
review panel found that NIOSH substantially complied with the regulatory procedures
conceming the provision of justification in the evaluation report for the inclusion of
additional groups of employees.. Notwithstanding this finding, the panel recommended
that a more detailed explanation of NIOSH’s justification should be provided to the
Sectetary, and that more detailed evidence and explanation in support of similar class
expansions should be provided in future evaluation reports.

‘The following additional details relevant to this issue are offered:

° NIOSH first expanded the class that was initially proposed by the petitioners
at the time the petition was determined to have established an adequate basis,
for evaluation. The petitioners initially proposed inclusion of only union
employees who were monitored or worked in positions that were required to
be monitored and/or who worked in areas of plutonium exposures. Because
NIOSH found that several of the documents included in,the petition were
relevant to workers outside of this initial proposed class (i.e., workers who
may not have worked in areas of plutonium exposures), NIOSH, in
consultation with the petitioners, determined that adequaté bases had been
established for all union represented workers who worked at the site between
April 1952 and February 15, 2005. .

° The petitioners did not provide specific information conceming which set of
employees or jobs were represented by the USW. Rather, the petition
included a listing of “some of the job titles under our union contract at Rocky
Flats.” This listing consisted of a table from the Rocky Flats Plant Site
Description document approved by NIOSH (ORAUT-TKBS-001 1-2, Rev 00),
that is a partial listing of potential hazards associated with various job
descriptions and locations. Further, while the petitioners’ “points of appeal”
suggested that the union Collective Bargaining Agreement provided sufficient
information to disaggregate union worker from other workers in terms of
work and exposures, this document was not provided by the petitioners at any
point in the process, nor would that document necessarily havé been
informative with respect to the question of what portions of the workforce
were covered by previous unions under earlier agreements. Because there was
no practical way to define the specific employees or jobs that had been
represented by unions during the 53 years represented by the petition, and
because the very documents that provided the basis for evaluating issues



‘after the Rocky Flats Plant cl
documentation showing that Department officials did reco!
be deeision: nee Ms. Beach’s conflict of ifiterest at pe °

We do not'recommend oir
> point of spel i

: This tanguage was based on the
.. factthat Mr. Griffon received consulting from USW as the. President: of Creatiye Pollution
=" Solutions (CPS); and his waiver réflécts that he mayt be conflicted where USW has filed claims:
-:, for sites for which he performed work for the union.7: : Under the conflict of. interest Statute, the..

‘ “site. in Ohio, “Oak Ritesttnwens silat w¥ ihe ba
25 plant is ldcatéd on the!Oak Ridge reseivation), Portsmouth, | Paducah, NEEL
[ENEEL i is the Idaho National Engineering and Environmental E Laboratory - itis :



ontemplate that-data will be thissing ' ‘anid that;is pibctaely whiy dosé reconstniction - :

: .. In fact; according to the Preamble accompanying the finat rules at 42 CFR:Part 82, :
the purpose of ‘dose réconstruction is.as follows: “Dose reconstructions are uséd to. estimate the

“ zadiation doses to which individual workers or: groups 6f workers have been exposed, os :

parti ly when radiation monitoring is uriavailable, ‘incomplete, or of poor quality.” 67 Fed, .

that di is missing does tot, in and of tse prechid on

*  SPetitioners provided no dociimentafion or inforttion a as evidence to:show:
that 33% of the worker cases between 1964-and 1992-had missing data.

procedures for. dose reconstruction et out in 42 CFR: Part 82 and Part 83.
. Thus, there is a merit to the iss raised by pet mners in this point of ©

. establish by. ragistonwthods. for ert
received by: ‘employees awho Were not

2G Beevers socto in 42 CER Part 82 address ways
"+ missing data. For'example, § 82.2:(“What are the basics of dose reconstruction?”) he
provides that “A hierarchy of methods is used in a-dose reconstruct n, depending o1 the:
: nafire of the éxposure, conditions and the fype, quality, and complete ess of data” foe
: zk this ates that “If found ..

to be, complete. and adequate, individual 9
‘readings and bioassay sample results,.afe giver the Heaibiy priori



NIOSH Response to HHS Administrative Panel Report on Rocky Flats Page 5 of 10

The Panel indicated “that a potential conflict may have existed for Mr. Griffon if
he or his company was concurrently providing consulting services to USW....”
The Panel was unable to make a determination regarding the existence of such a
conflict based on a lack of written documentation. Accordingly, the Panel urges
ethics officials to review this matter, including the policy, to determine whether
Mr. Griffon should have been recused from participation in this matter and what

-_ the-policy on such recusals should be in the future. (See Panel Report, page 13,

paragraph 2).

Based on 5 CER. 2635.502(b)(1){iv), the Panel’s description of the existence of .
a “covered relationship” between Mr. Griffon and USW is correct. However, as
noted above, NIOSH considered this conflict in its review prior to the issuance of
the conflict of interest waiver. For the reasons given earlier, the issuance of the
waiver simultaneously constituted a limited authorization for Mr. Griffon to
participate in certain ABRWH deliberations. After reviewing this matter, NIOSH
has determined that this decision was correct. It was and is NIOSH’s
understanding that Mr. Griffon did continue to perform: work for USW (at least at
the Mound Plant) during the period of time that the Rocky Flats SEC was under
consideration. This issue was-fully vetted and addressed by the conflict of interest
officials prior to the issuance of any waivers or allowing Mr. Griffon to

participate in the Rocky Flats discussions. The proper ethics officials were
involved in the determination that Mr. Griffon’s conflicts with USW would be
site-specific only and it was a wholly proper exercise of agency discretion.
NIOSH stands by the decision that was made at the time and intends to continue
to follow the same policy. NIOSH does, however, take heed of the Panel’s
concerns regarding documentation and will work with conflict of interest

officials, specifically the OGC Ethics Division, to ensure that this policy is
properly recorded.

The third paragraph in the section of the Panel’s Report pertaining to Mr. Griffon
taises some concern regarding the use of illustrative rather than or in addition to
exhaustive language in the waiver itself. (See Panel Report, page 14, paragraph
1). The language in the waiver is consistent. Both the “illustrative” and the
“exhaustive” language cited in the footnotes include the same term, “such as.”
This word choice was purposeful and is intended to allow for the addition to the
Board member’s waiver of other sites where a conflict might exist and recusal be
deemed necessary during the course of a waiver year. NIOSH may revisit the
issue at any point during the year, rather than waiting for the next annual financial
disclosure filing. ABRWH members often have new professional responsibilities
or opportunities arise during the year (such as, invitations to lecture or sit on other
boards, work at other covered facilities, opportunities to serve as expert witnesses
in litigation not related to EEOICPA). In order to filly and completely address
conflict concems, NIOSH may reissue 2 waiver mid- year when new information.
comes to light. The “such as” language in the memo is intended to allow for this



N ion presented of ‘submitted to the Advisory i

the deliberations ‘of the Board: ‘prior to the i issuance of its recommendation. We'were :
airy with considering whether HHS substantially complied with the regulatory procedures

set Out'in 42. CER Part 83 and whether the Secretary's: 2 decision was supported by ‘accurat *
factual inforniation, and we, reviewed, the Principal findings and recommendations of NIOSH and.

"| orjenttation and materials to Feview. We-were not given a¢ deadline for.completion of out work,
_ but we were asked to work expeditiously and to niet approximately every two weeks. We
: started: reve ntti Mach nd squirm Apel hcg Deo Our.

: ‘inthe potitioxiera’ appeal letter, atid sevéral of the } ‘polis
. additional questions that “we bai ditional information: and warranted significant close

"-Adigust 13°56, 18,22; 26

" September 16, 19 (3. hours):

| Ottober 1, 4 (Saturd

fa November 5, 7,14; 25° *

December 5, 9 (6 hours), 12 (3 hours), 15, 16, 18, 23 (8 hous 24 Goes eal 29 (phone ci,

il evaluating the petitioners” points of-appeal, we have come to thres categories of conclusions, : ue
In most instances, we ‘ merit to the iastes raised in-the points o} sppeal, and recommend: -



ROCKY FLATS SEC 00030 APPEAL OF HHS DECISION DATED AUGUST 6, 2007

other workers with respect to both work and exposure. The hourly Steelworkers were
the only ones that performed hands-on (hands in the gloves) weapons production and
chemical recovery operations at the Rocky Flats site and therefore are a distinct and
separate class with clear and inherent danger in their positions for the highest
occupational exposures. An undated memo roughly late 2005, from White House’s
Office of Management and Budget to Labor Department OMB Passback outlined a
plan to contain growth in benefits from new SECs by requiring “administrative
clearance” before the HHS Secretary can make a decision, and calls for a White
House led interagency task force to “address any imbalance” in the Advisory’s
Board’s membership. In this context, this appears to intend a tilt in the Advisory
Board’s composition against approval of SECs.

9) Deputy Secretary Applied Pressure Against SECS. "Just in case there was any
question, it's my strong belief that we should do everything possible to oppose these
SEC (special cohort status) amendments”.— June 18, 2004, e-mail from Shelby
Hallmark, Department of Labor deputy assistant secretary Oddly, just months before
(before the OMB Passback memo), Mr. Shelby was singing a different tune. "If
there’s a justification for an SEC anywhere, common sense suggests that it should be
at Rocky." — Feb. 26, 2004, e-mail from Shelby Hallmark, Department of Labor
deputy assistant secretary for the Office of Workers' Compensation Programs. He
also was previously so bold as to publicly criticize the validity of dose reconstruction:
“Does it make any sense to continue to defend a dose reconstruction process that will
just get more complicated and attenuated?”—Shelby Halimark, Department of Labor
deputy assistant secretary. Someone needs to look into what made him change his
tune. Was it science or politics?

10) Suppression of Scientific Points. Members of the Advisory Board’s Contractor,
SC&A, were silenced and pressured not to discuss views contrary to the position of
NIOSH.

11) Methods were used as Basis of Denial that did not exist when the Petition was
submitted. NIOSH blatantly ignored legal time requirements in favor of stalling to
allow time to develop band-aid fixes to coerce the Advisory Board into voting against
the petition. The development of new TIBs is not part of the Petition review process
and it is for this reason that it took two and a half years for a determination to be
issued. Our workers died while NIOSH desperately dabbled in science under the
threat that its program would be eliminated spelling an end to the multi-million
dotlar business that is dose reconstruction —a NIOSH and HHS jobs program at
the expense of the workers and the taxpayers.

Scientific Basis: Points of Appeal

1) Missing Data. We are very concemed that between 1964 and 1992, that 33% of the
worker cases reviewed were found to have missing data. To quote the Board’s
contractor — “There are large gaps in internal dose data, notably for 1964-1992”
“NIOSH has not demonstrated its ability to fill existing data gaps for external dose in

PAGE 5 0F 7 ‘SEPTEMBER 6, 2007


. The , Honorabie Michael o. Leavit Page 1 19.

‘Summary? | . “> fa) Petitioners piivided 1 no documentation or: saformation ag ‘eviderive. to
°° "Show fhiat ‘politics diid/or budget played a role in’ the decision process.”
:'- .(b) NIOSH substantially complied with, the pe regentory procedures -
“setout in'42.CFR Part 83. > =.
(c} Since NIOSH did ziot provide evidence or vt sufficiont explanation
support its justification for' expandi 1g the class in its April 7,:2006, =
Evaluation’ Report, we: cannot dctenmine whether NIOSH based: its :

-:, Recommendation: We do not'recommend further: ction regarding (a) and (b) above.
Me ee Regarding (©, amore detailed explanation on the record. of NIOSH’s
_ ool justification for expanding: ‘the'class: ‘should be: provided ' 't0.the Secretary.
: Inthe: ‘future, NIOSH should | provide more detailed evidence and:

i status for Rocky Flats workers oC there’: sa justification for an SEC. aywhees common sense
... Suggests that it should be at Rocky”) and then latér opposed the SEC (" , we should.do ~
* everything possible to oppose these SEC {spécial cohort: status) “amendments” and’ also that he 1
. publicly criticized the validity of dose teconstruction (Does it take any Sense to continue :
- | defénd-a dose reconstruction ic

z

te in ay event, DOL, including Hallmaric; has no role-untier 42: e :
making *process about whether or:itot the Secretary of Héalth and Human services shold adda a”
:» Class of employees to the SEC. DOL’s role is to determine whether the individuals: within the -
_.cohoit qualify for compeiisation anid to. admiitiister the Compensation, -In fact, Executive. Order
':13179, section 2(b)Gi) makes élear that “The Secretary of Health and. Human Services shall
‘ijn acesrdance with . procedures pairs by the Secretaty of Health and Human Services,
: ‘and j °

_ tepresentatives from scientific and medical communi") and by the BEOICPA statute
_.. " “:gt42 U.S.C. § 73840(a)(2), which states. that “The President shall miake appointments
4 hal the Board in conullation with orsenizations with expt on worker health sues in



_ The Honorable Michael
: The petit ers also’ fissert that the “Dé

# recgnatructions:at'Rocky Flats, The-dose reconstruction program of the Defense Threat

"model and Methods of estimating ‘dose, than the' dose teconstruction program for Rocky Flats’

Petition jexs also state that “We are o vey. coneéried that ftindameatal facts wad ended
“about the processes and radioriuclides present in’ ‘the buildings {for example Buildirig 88D)

: worked within a sp ; : eas
: Byaluation Report: Pétition SEC-00030; Section 7. 20
-. Associates draft'report satitled “Rocky Fist Plant Site Profile Review,

© 206, aiid 222. . :

Leavitt Page 25 |

fense Threat Reductioin Ages Dose Reconstruct mn,
yper-bouiid doses: from exteriial gamma, neutron, ‘and beta exposure are

i often under: estimated;. sometimes considerably, particularly when doses are reconstructed.’?

However, pétitioners gave no context or explanation of the ‘relevance of this statement to’ ‘ose :

Reduction Agency could be completely different, in population; setting, types of exposure, time,

on Apis : :
NIOSH’s program. ‘There is no merit to‘the.i issues taised by Petitioners in _
: this poi tof appeal. : Lo:

support this allegation. In fact, our review of the docuents provided revealed thelopposite

: Finally,-we note that NIOSH’s a usp.coo-wiait dat id hasty in its “ago

the Oak Ridge J Associated Universities (ORAU) rome contractor for dése recoristruction js

fact; several sections within 42 CER Part 82 provide authiority for NIOSH to use co-worker data



: The Honorable Misha, Levit Paget .
Rene ttt —— °

Remon, wohew fea en David: ;
“Analysis ‘and Support (OCAS)/NIOSH, specifically ‘addressed this
one of! the petitioners, dated June 5, 2007 @e Rocky Flats’ Requests fo for Informaati

We are not 1 “extzapolating from 32 fandom sainples to the entire Rocky Flats s populatio

* “nor.did ‘we find that'“33 percent of those: sampled b had missing recotds.” The Working ~ , ..
Group instructed SC&A to randomly select 32 cages, and to sélect 20 additional'cases -* *..:.-
from | the workers identified byt the. Medical, Recall } program as being highly exposed.

identified in thie file). 1 ‘tn every 0 other case, thé time; periods without monitoring
.  taatched periods when the workers were: either not onsite or were working in lov
..: exposure poteiitial jobs, and therefore not required to be monitoted,.As has been”
discussed tumerobs times; most recently at the last ABRWH [Advigory Board: on
Radiation: and Worker Health] meeting, the records were coma oo

: Howéver,- NIOSH was able to.

explained i in detail i inits April: 7, 2006. ‘SEC Petition ‘Dralion Re Report: Petition SEC-00030.

| These procedures were'consistent 12 Part nid J fe ° conclude that NIOSH -
was, therefore, able-to- estimate | ition 3 of i J

4 de i ed. siifficient accuracy +f Nios his . .
established that it has access to sufficient information to-estimate the maximum
radiation’ ‘dose, for every type of ‘cancer for which radiation doses are =!
recomstrastst that could have: ‘been’ incurred i in plausible circumstances by any



ROCKY FLATS SEC 00030 APPEAL OF HHS DECISION DATED AUGUST 6, 2007

a manner that would produce bounding dose estimates that would satisfy the
requirements of 42 CFR, Part 83.”

2) Lack of Scientific Evidence to Support Particle Size Selected for High Fired
Oxides. NIOSH used one single data point to determine what particle size to use, but
no research has been done to support it. PNNL-MA-860 Chapter 8.0 issued January
31, 2003 “The precise nature of super class Y material is not known, although it
appears to have been associated with processes involving high fired plutonium
oxides.

3) Lack of Research or Scientific Basis for how High Fired Oxides are metabolized
in the body. PNNL-MA-860 Chapter 8.0 issued January 31, 2003 “The precise
nature of super class Y material is not known, although it appears to have been
associated with processes involving high fired plutonium oxides. How can you go
from knowing little to having it all figured out to the point you can model it without
doing any scientific research or studies? Garbage in --- garbage out.

4) Unproven Scientific Models employed. New models were created and not
adequately proven. Fly-by-night, overnight science ~ NIOSH thinks they can develop
in three months, what still has been failing after three decades. Dose Reconstruction
is not a science. Defense Threat Reduction Agency Dose Reconstruction Program
stated . .. upper-bound doses from external gamma, neutron, and beta exposure are
often under estimated, sometimes considerably, particularly when doses are
reconstructed.”

5) Faulty Co-Worker Model. In addition, we are very concemed about the co-worker
model’s reliance on the ability to remember or track what buildings workers were in
for periods of time given the transient nature of the hourly work force. We are very
concerned that fundamental facts and understanding about the processes and
radionuclides present in the buildings (for example Building 881) remain unclear to
NIOSH even after more than 28 months of review of the petition.

6) Inaccuracy of Model to account for undocumented exposures to the head and
back. We are concerned about the inaccuracy of monitoring of external exposure to
the upper torso, head and back when dosimeter is blocked or pointed in opposite
direction. We are concerned about the validity of dose records for workers in high
dose jobs. We are concerned about the adequacy of the co-worker model and
NIOSH’s ability to apply it.

7) Gross Error in Fact Contributed to NIOSH’s Decision to Expand the Class,
NIOSH’s part to expand the class from its original size of 4,000 Steelworkers
potentially, with less than 1,400 expected to be ultimately compensated to a class,
with no basis, of 20,000 people. In making this expansion, NIOSH stated in its April
7, 2006, recommendation, “NIOSH determined that all employees were similarly or
identically exposed, and therefore, cannot be disaggregated from the union workers
with respect to their work and exposures.” This statement is a gross error in
representation. The union Collective Bargaining Agreement clearly defines the work
scope of the Steelworkers facilitating ease in disaggregating the union workers from
other workers with respect to both work and exposure. The hourly Steelworkers were

PAGE 6 OF 7 SEPTEMBER &, 2007


_. The Honorable Michael oO. Leavitt - + Page 16..

BO, 7 Given the difficutty we have had in assessing the’ h 5

ae Griffon because of lack of documentation, we suggest that partment ‘Sffcials is keep betterTM
a recotds of these determinations in the fiture. | :

we believe: that a potential conflictiof int est andlot-a an appeaiatice ott
_ Concem may have existed for’ Mr. Griffon, but we do not have: adequate .
documentation fs assess? Oe - Griffon had‘an “

ily
usw sites for which he provided consulting services,-rather:
: USW sites, Thus,.we cinnot deferinine conclusively Whether there is

: congem, and then take appropriate remedial-actions ifnecessaty, In <.. a
} “gaditions we genééally recotimend that in the fiture thers be mors fect- wives Be
_ finding té“detemnirié whether @ conflict of intefest ‘or appetirance
: _ ds present prior to the participation Of Boerd ypembers in decisions - : i:
" “regardiiig additions to the SEC, ‘nally, we xecommend that Department . “se

considéred for addition to the SEC frm meitbérs of the Rocky’ Flats United Steelworkers of
: America Union, Local 8031, who initially filed.the petition, to all Rocky Flats workers, was : -;

: | for addition.to the 8) that were not spect the srg petton For cxamle, 42:CER §
a . 83. oom ‘States that “(NIOSH will, defing the. - Characte ic of a class, talc into, acéotint



The Honorable Michael O, Leavitt Pages
| Morkers stiould be included ia thie SEC: otherwise,

“Sammary: . : - Petitioners have provided no‘docunieitation or other evidence that there is! |: -

: a-conflict of interest in-this situation. Thus, ‘based upon the information: .. :
reviewed, wwe’conchue that there is no meri to the issies raised by :
Retitioners in this point of appeal. bes bay

s Retommendation:. We do. fot recominend fuither action og this poir of: oppea

, '@ ; _ “Nein-Cobiesion in the Board” ”

te Ore : “Aetions Outside the Boundaries of the Anthorty ‘ander the Acts?

the Board's yole was.to. ‘evaluite and | recosniend, ‘never to The Board, albeit swith
good intentions, became intertwined with. a process to develop ai set ofnew science,
echnical x

“acted outside its anithotity on’ any occasio: seca creating! new sciéice or models. Thé role '
: oft the Board i is setiout in statute,’ Exegutiye Onder and regulation ‘These authorities : .

For examp!
President ste to!



ROCKY FLATS SEC 00030 APPEAL OF HHS DECISION DATED AUGUST 6, 2007

3)

4)

5)

6)

PAGE 3 0F 7

outstanding. The law did not say — petitioner point out flaws in the government’s
ability to reconstruct dose; NIOSH fix some of the flaws (admitting inabilities) and
then recommend denial of \ petition based on a new set of standards that did not exist
at the time the petition was submitted. The law clearly states: “The purpose of the
compensation program is to provide timely, uniform, and adequate compensation. .. .
” Justice Delayed is Justice Denied,

Conflict of Interest Invalidates the Process. As noted by Congressman Hostettler
in a March 9, 2007, letter, “At Rocky Flats, a manager of health physics programs
prepared NIOSH’s site profiles, TIBS, is actively involved in the evaluation of a SEC
petition, which includes validation of results used in his previous work.” Individuals
who have testified AGAINST workers in worker compensation hearings are serving
key roles in the NIOSH process. The Government’s own General Accounting Office
identified conflicts of interest.

Non-Cohesion in the Board. The Board vote of 6 to 4 showed considerable
dissention in opinion of the Board members. This vote is not a strong endorsement
for the Board’s recommendation. In fact, many issues were left unresolved at the
time of the vote, as evidenced by the split vote. In addition, the Board’s expert
contractor Sanford Cohen and Associates (SC&A) had identified many open issues
and concerns with NIOSH’s approaches. The Board has not given a strong
endorsement to the Department of Health and Human Services.

Actions Outside the Boundaries of the Authority under the Act. This process was
intended to include a timely evaluation and recommendation regarding the merit of
the petition — to answer the question, did the petitioner prove that there was a class of
workers for which the Government could not accurately reconstruct dose. The
Board’s role was to evaluate and recommend, never to fix. The Board, albeit with
good intentions, became intertwined with a process to develop a set of new science,
methods, models, guidance, technical basis documents and assumptions over the last
two years. These were directed at serving as the basis to deny the Rocky Flats
petition. These new document will ultimately result in thousands of dose
reconstructions that must now be redone in accordance with the new standards. The
fact that dose reconstructions are being declared “invalid” and are being redone
serves as strong evidence to the Department of Health and Human Services and the
members of Congress that it was, in fact, not possible for NIOSH to reconstruct dose
for the Rocky Flats workers at the time the petition was submitted. We are gravely
concerned that this action and the Secretary’s decision to deny the petition based on
this action opens the entire EEOICPA process up to severe scrutiny either as part of a
Congressional investigation or litigation. This situation would severely tarnish the
U.S. Government, the U.S. Congress and your agency in particular.

Inconsistent Application of Conflict of Interest Requirements, NIOSH
inconsistently applied conflict of interest standards to stack the Advisory Board on
Radiation Health to deny worker petitions in accordance with political pressure and
statements made by top leaders in HHS. For example Mark Griffon was allowed to
vote in spite of his relation with the union, while Josie Beach was denied her right to
vote based on her membership in a union at the Hanford Site. Interestingly, because

SEPTEMBER 6, 2007


The Honorable Michael O. Leavitt - Page 28

In this point of appeal, petitioners also express their concern “that the standard being applied
appears to be whether something is ‘plausible’ or not. We repeatedly [hear] things like it is
plausible that a model will work or it is plausible that the 0s recorded [meant] that the dosimeter
was not tured in.” As we indicated in response to “Scientific Basis: Points of. Appeal” #1, the
EEOICPA statute and the regulations specifically contemplate that data will be missing. The
standard for whether a class of employees should be added to the SEC is whether itis feasible to
estimate the level of radiation doses of individual members of the class with sufficient
accuracy.'* While we agree with the petitioners that “plausibility” is not the appropriate
standard, petitioners have not provided, nor have we seen, any specific evidence suggesting that
NIOSH did not apply the regulatory standard. For example, NIOSH appropriately accounted for
the zero value for the dose entry, as indicated in the April 7, 2006, SEC Petition Evaluation
Report: Petition SEC-00030, at pages 47, 60, and 61. .

We note that NIOSH’s dose reconstruction procedures were based upon valid science and used
established models for dose reconstruction. :

Summary: We see no significant divergence in scientific opinions that would
invalidate the Secretary’s final decision. Thus, there is no merit to the
issues raised by petitioners in this point of appeal.

Recommendation: We do not recommend further action regarding this point of appeal.

Sincerely,
Alla Shapiro, M.D., Ph.D. °
a 4 a ae lefetpe
fo} eph M. Kamingki, M.D. . Date
KK pebab Ms bended (2)3tfe8
KiyohlKo Mabuchi, M.D., DrPH. - . Date — J
Attachment

"See 42 CFR § 83.13(c)(1), as quoted in footnote 13.



The Honorable Michael 9. Leavit : Page 5

142’ CER 83.15(b) provides that “the petitioner(s):will be invited to present views and information *
: om:the pétition and the NIOSH evaluation findings”: at the meeting, Hit respect to the materials ch
_ discussed at meetings, 42:CFR 83.13(d) siniply requires will subs

* evaluation findings to the Board and to the petitioner(s ."** No :

» Finally, the EROICPA statute and implementing regulations also do not spec atine

‘report of the decision to the petitiorier(s), including an iteration of ‘the mort ria, ag : 2
specified bss 83. -13(6); and a summary: of the informatio Be

Petitioners state that “NIOSH failed to meet the Congressinnaly m rhandated deiie of 180. aay | vn
to-make its recommnendation‘on the Petition .. . the 2005 EEOICPA Act Revision required aol
sig in : sea dr bok

recommendation by day ii 180 days” (<

‘National Institute for Occupational Safety and Health shall sibmit to the Advisory Board
on Radiation and. Worker Health a recommendation on that Petition, : including all

i eceives'a petition.” : Although not yet'in effect, NIOSH followed the policies later set -
nut in the Interim Final Rule published on December 22; 2005 €70 Fed. Reg. 75949);-when if: . .
decided to the 18) dips fof When ti petton quid or evaluation; not rit when:



: The Honorable Michal © _Leaviit - (Page 4

: ting i i
: endorsing | the way inl which they have described each of their points. Further details repanding
||, each of the points raised by petiti ners can be-found in the attached letter submitted by :



The Hopersbe} Michael 0. Leavitt - ~Page 17, i :
‘A statute nor the itiplementiog regulations require ‘that W ica new, iembers are

: submitted on their behalf. Nonetheless, the record reflects that NIOSH. did review additic nal
information regarding the new class:members.: For example, NIOSH reviewed affidavits ~
a prepared by non-union, ‘noniproduction Rocky Flats workers reganding t their exposes that ¥ were’

“Petitioners so | allie that NiosH expan ed the class “to inake thei “lass unpilatably: large.so
: that it would have to be denied - they had no intention of granting SEC. stains for Rocky Flats
workers § so they wanted to deriy: everyone i in one setion.”. _ al Lr,

. la making this expansion; NIOSH: Stated in 3 its April 2006: ‘reconimeniation, “NIOSH his
determined: that all employees were similarly or identically exposed, and therefbirs, 7

: ” Bargaining Agreement clearly defines the work § scope of the Steelworkers facilitating : .
‘ ease in disagerepating the:union workers from other. workers with respect to both work -:
and-exposure: -The hourly Steelworkers were the only-ones that performed hands-on,
’ (fanids in gloves) weapons production and ‘chemical ‘recovery operations atthe Rocky
Flats site and therefore are a distinct and separate class with ¢lear and inherent danger i in
theit positions for the highest occupy ional exposures a

+ With respect io this allegation, the Petitioners a are contest ‘that NIOSH determined that, the elise



Sincé 42 RR § 83. Le) which Gites to:8 83, 13¢d) aiid i interprets the
" statute on what constitutes “a tecornmenidation on ‘that petition, inchiiding
__ all siipportirig documentation,” was.not yet in effect; we believe that the’ beats
:.:fecominiendation contained in NIOSH’s ‘letter to the Advisory Board was
based ‘on an interpretation of the statute that was legally permissible, but
perhaps not the best. While there is soine merit .

. Récommendation: ”

; Sitat nowds tp bo.coctainod in NIOSH’s feooumiendation to! eAdvenny i
a _ Board and the'time requirement for submitting this reco endation. We fn:

oO «

: Petitioners state that:

a ipporting: documentation as evidence to support t this allegation, as is
required by 42 CFR § 83. 18(a); For example, we do not even. know. ‘the Rocky Flats manager
“feferred to in this Roint had at vehiog ty do 6 with the SEC petition file od ay Rocky F Flats workers.

workers: in worker compensation hearings are: ‘serving! key: roles: inthe NIOSH process” .
(emphasis i in appeal letter). However, again, petitioners provide 20 docuinentation: :Or specific |
: information regafding this allegation, ' such_as names of tho: who te tified against workers i in.



The Honorabie Michael 0. Leavitt Page 3

i ‘Repommsiidation:

‘We dg not recontnenid

'@2 “Lack of Sclentii Bvidence to Soppert Particle ‘Size Selected for High Fired. -
“Oxides.” : wee

. Petitioners state that “NIOSH used one si
m but no Fesearch has been done to § support i

: available! data, defizult values’ based on reasonable and veietibe assumptions zal used as

réconstruction’on models publistied by - | :

(ICRP)-66, which'ig the document : oe

” “assess radiation doses for ceupationally exposed individuals arid to evaluate accidéntal
‘': exposures. Det seersalerheiy remain icynite pei not be knowin all: Lh

t below. The models are based or.tlie collective Seeubee pied from both animal and buman - = -.
=. Studies,. In emir we. note that. regulations at 42 CEFR R § 82. 1“) spetiiallyditet NIOSH to



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

JAN 2 6 2003

Rocky Flats United Steelworkers of America, Local 8031
2280 E. 139" Avenue
Brighton, CO 80602

Re: SEC Petition 00030
Dear

Thank you for your letter requesting an administrative review of my determination
regarding Special Exposure Cohort (SEC) status for Rocky Flats workers who were
exposed to radiation dose from 1967 to 2005 and to radiation dose other than neutron
dose from 1952 to 1966.

Pursuant to 42 CFR § 83.18(b), and because you filed a challenge on behalf of a class of
workers from the Rocky Flats Plant in Golden, Colorado, who I had determined should
not be added to the SEC, I appointed a panel of three HHS personnel, independent of the
- National Institute for Occupational Safety and Health (NIOSH), to conduct an
administrative review. The panel has now completed its review of the challenge.

In evaluating your points of appeal, the panel came to three categories of conclusions. In
most instances, the panel found no merit to the issues raised in the points of appeal, and
recommended no further action. In one instance, the panel found some merit to the issues
raised in the point of appeal, but did not recommend further action. In two instances, the
panel could not determine conclusively whether there was, merit to the issues raised in the
points of appeal and recommended further inquiry of NIOSH. Subsequently, NIOSH was
asked to provide responses to the two outstanding issues.

After review of the administrative review panel’s thorough report and of NIOSH’s
additional response, I have decided not to revise my August 6, 2007, final decision.
Please note that, in line with the administrative review panel’s report, NIOSH recognizes
the need to improve documentation with respect to conflicts of interest and appearance



The Hono Michaet O. Leavitt - Page 10

Recommendation:

. © B “tacomsstent Applic t
Petitioners state that: :
NiOSH inconsistently applied

- on Radiation [and Worker] Health to deny. worker | ‘petitions in accordance with politioal
Moana ig vote tote of it

4 employee’ 's personal financial interests: or one imputed to them - ~ imputed i interests | may’
“fie off onpanizais i it vai



. cal vhake clear that tlie Board i ig not only, permitted,
: onthe scientific vi and rid ofdose reconstruction

. , s detision: on weil estab tied models, such as‘on-the Titernational
:Commission:on Radiological Protection (ICRP)-66,5: whi
: NIOSH and the Board, (See response to scientific

e pel ioners. s piovide no docunientition o or. names as. evidence to - Support: their .

ions art being detlared 4

“Bxecutive Order 13179, Section 4(b) (i), which essentially repeats the languags
of 42 U. S:C.§ 7384000 2: f r

: es “on thie scienti ‘validity
recosstructio: efforts petformed ert ‘this Program.”

an “CRP I Pubfication 66, vihich was published in 1994 by rgamon’
‘ent led “Human Respiratory 7 Tract Model: for Radivlogical Protectio1 AY



‘NIOSH Response to HHS Administrative Panel Report on Rocky Flats Page 7 of 10

NIOSH notes that attomeys from the Office of the General Counsel’s Ethics
Division were concurring signatories on all waivers issued for Mr. Griffon.

-The second paragraph on page 15 of the Panel’s Report indicates that the Panel
was unclear about an email exchange between-CDC’s Federal Advisory
Committee Management Office and Mr. Griffon. Information was provided by
NIOSH for the Panel’s consideration regarding conversations between Mr.
Griffon and conflict of interest officials on this subject. It is unclear how the
Panel considered this information: CDC did receive a new OGE 450, as required,
from Mr. Griffon on July 25, 2006. Since there were no changes to the financial
disclosure information, the Committee Management staff began the process of
determining if the previous waiver could be reissued. The email exchange
indicates that initial step.

. The final paragraph in the Panel’s Report discussing Mr. Griffon’s conflict of

interest waiver (see'pages 15-16) again remarks on the lack of documentation in
this case. As previously stated, NIOSH acknowledges and appreciates these
conceris and will work with Department officials, specifically the Office of the
General Counsel’s Ethics Division to consider future improvements, NIOSH
must also point out, however, that certain predecisional policy discussions are not
required to be formally documented nor are they typically reduced to writing,
therefore, NIOSH will continue to exercise its discretion in these matters. As

, speculated by the Panel in footnote 10, despite the lack of documentation in the

waiver, NIOSH and its advisors did indeed make full and proper inquiries, learn
that Mr. Griffon did not provide consulting services to Rocky Flats USW, and
conclude that this did not result in an appearance problem.

Regarding specific questions raised by the Panel in their Report, NIOSH held a -
conference call with Mr. Griffon as well as representatives from the CDC Federal
Advisory Committee Management Office and the Office.of the General Counsel’s Ethics
Division on January 6, 2009 to once again address these issues and provide the Secretary
with a more complete explanation of Mr. Griffon’s involvement with the USW.
Specifically, Mr. Griffon was asked the following questions which were derived from the
Panels Report:

Were the consulting fees you and/or CPS received from usw paid by the national
union or various local chapters of the union?
Response: The consulting fees paid to CPS came from the intetnational
USW union, with the possible exception of the contract for work at the
Mound Plant. The contract for work at Mound predates USW and
possibly even the involvement of the PACE union at the ‘site,
Did you have a single contract with USW that covered multiple sites (if so, which
sites?) or did you have several contracts which were specific to particular sites
and types of work? . .


ROCKY FLATS SEC 00030 APPEAL OF HHS DECISION DATED AUGUST 6, 2007

with respect to Legislative and Legal remedies before too many more of our workers die

waiting for the Government to make good on the Congressional promise to take care of our
sick workers.

Process Basis: Points of Appeal

1) Failure to provide information to the petitioner in accordance with the provision of
the law. NIOSH and now the Secretary of Health and Human Services have
exhibited a pattern of withholding and delaying communication of information to the
Rocky Flats petitioner throughout this process — including “accidentally” removing
the petitioner and petitioner representative from the e-mail distribution for
notification of meetings for a six month period of time. The petitioners were added
back to the list and an apology was issued by NIOSH for their accidental mistake.
Several times including before the May 3, 2007, and June 12, 2007 meetings, reports
were prepared by the Advisory Board’s contractor that were discussed at the
meetings, yet NIOSH failed to distribute the reports to the Petitioner until minutes
before or in some cases after the meetings — thus preventing the Petitioner from being
able to prepare for the meetings. Board members voiced similar complaints about
the timely provision of information by NIOSH at its June 11 and 12 meeting in
Denver. This pattern of blatant disrespect for the Petitioner’s rights is further evident
in that the Secretary of HHS did not even bother to notify the petitioner of his
decision until three week after he made it — leaving it up to the news media and
frustrated members of the Colorado Congressional delegation to do his dirty work ~
indicating a lack of pride in his own decision. It took a call from Carolyn Boller in
Congressman Udall’s office before Mr. Elliott finally issued a letter on behalf of the
Secretary.

2) Timeliness. NIOSH failed to meet the Congressionally mandated deadline of 180
days to make its recommendation on the Petition, The recommendation was not
made until 440 days after the Petition was submitted February 15, 2005. The Rocky
Flats petition should be approved based on the Government’s failure to meet
timeliness requirements of the Act. The Rocky Flats Petition was submitted on
February 15, 2005. The Secretary did not issue his decision until August 6, 2007 ~
902 days after the petition was submitted — 902 days while our workers, sick with
cancer, suffered and many died. The NIOSH recommendation on this petition was
issued 440 days following receipt in spite of the fact that the 2005 EEOICP Act
Revision required a recommendation, by law, in 180 days. The Advisory Board
on Radiation Safety and Health (the Board) recommendation did not occur until June
2007. The law requires timeliness and fairness. This process has been neither timely
nor fair to the Rocky Flats workers who are sick with cancer. Furthermore, it is
unacceptable that individual Rocky Flats claimants wait an average of 742 days for
their claims to bé processed from submittal to the time a positive ruling is made. This
delay has meant that 67 Rocky Flats workers (10 percent of those ultimately
approved), who would have been compensated, died waiting. It is clear that
timeliness is not being met in the case of individual Rocky Flats claimants or in the
case of the Rocky Flats Petition. This factor alone is enough to warrant approval in
full of the Rocky Flats Petition. The question was not could NIOSH ever reconstruct
dose with accuracy. It has been two and a half years and substantial issues are still

PAGE 20F7 ‘SEPTEMBER 6, 2007


Rocky Flats SEC00030

09-12-97P12:56 RCVO Petitioner
On behalf of:

Rocky Flats United Steelworkers of America, Local 8031
2280 E. 139" Avenue

Brighton, CO 80602

SEC00030

Office of Compensation Analysis and Support, NIOSH
MS C-47

4676 Columbus Parkway

Cincinnati, OH 45226

ocas@cdc.gov

RE: Formal Letter of Appeal of Determination by Michael O. Leavitt for SEC Status for
Rocky Flats Workers Who Were Exposed to Radiation Dose from 1967 to 2005 and to
Radiation Dose Other Than Neutron from 1952 to 1966

Dear Secretary Michael Leavitt,

On behalf of the Rocky Flats workers who were members of the Rocky Flats United
Steelworkers of America, Local 8031, we write to formally appeal your decision dated
August 6, 2007, and yet oddly not sent to the petitioners until August 27, 2007 — three full
weeks after the decision was made. This delay in notification simply highlights a long and
troubled process in which timeliness has always been an issue at the forefront. Perhaps the
Secretary figured that since the sick and dying Rocky Flats workers have already been
waiting two and a half years for a decision, that an extra 21 days wouldn’t kill us — or would
it? Sadly 10 percent of our sick workers die waiting for their claims to be processed by the
U.S. Government.

Mr. Elliott’s letter stated that “Information regarding your right to request an administrative
review of this decision will be provided to you shortly.” Today, 14 days after this letter was
posted, we have yet to receive any such information and as we, unlike you, will be held to the
legal time limits, we have decided to file this request for administrative review/legal protest
absent the provision of any information from NIOSH.

Our understanding of our legal rights under the Energy Employees Occupational Illness
Compensation Program Act of 2000 allow us to appeal to the Secretary of Health and Human
Services in writing and that you will then appoint your own 3-person “independent” panel to
review your decision. We, hereby, formally appeal. We also understand that we can appeal
based on violations in process and to challenge scientific facts that were used to deny our
petition. We appeal based on both process and science in accordance with the points of
appeal listed below. Please notify us regarding the membership of your panel as soon as you
have appointed it and advise us if any additional information is required from the Petitioner.
lT encourage you to break with the consistent untimely nature of your office and this process
and to appoint the panel immediately and get a final ruling so that we can take our next steps


|. The Honorable Michael O, Leavitt - Page 6 __

a NIOSH deterinined that Pp itioviers? Pebruay. 15, "2005, palition eed addi
| ‘information for evaluation, which was provided by a supplemental:
: qualified: for ‘evaluation on June 16, 2005. dn accordance with the po

ot “Advisory Boatd ‘on von quad

On » December 8 8, 2005, the Bodrd received o's draft sport from Sanford’Cohen &:

. Associates [thé Board’s contracto#]-entitled “Rocky Flats Plant Site Profile Review:
:.... NIOSH. will review. this document to determirie whether any. issues raised have.

| implications for our evaluation of the Rocky Flats Plan SEC petition (SEC 00030). |

*. NIOSH. ‘récommiends tliat the evaluation tepott-on SEC‘ (00030 be'transmitted-to the Board

repo :
_ transmitted to ihe » Adviory Beer, there was.no need ‘br NIOSH to attach the report to its iter
7, Although NIOSH provided: “a -Fecomimendation, ” as. required, by 42 U.S C. §°7384q(¢\(1), its

: whether to add Rocky Flats workers to the SEC: The Office. of General Counsel at HHS -
iii ted at that time tha NIOSH s infection was legally ‘ :

P
C. §.7384q(c)(1), which contains the 180-day:requirement) specifies what NIOSH’s
eval report and recommendation must inchide; but does-not specify any deadline. ‘The
rediulationt at'42 CFR § 83.13¢e); whichi was publistied on July'10, 2007 (after NIOSH completed
‘its evaluation of petit oners” peiton) Specifies that, this evaluation report and Tecommendation

@pproach Would have been for NIOSH to have p ‘Adviso1 f
on _rpartng whether th Rocky Fs wotkers should be det the SEC within 180 das fom te
= date thot the petition qualified Gigs December 13, 2005).



ls
.

Mo The Honorable Michael O. Leavitt - Page 20 . : a :
: i : regulations in the decision’ of wheather ’ snot to add a class of employees to a
~ the SEC. “Thus, there is no'mherit to: ris ne

point of appeal.

ce Recommendation: Wedo not! reccimmetd sre action reaatng this point

(10) “Suppression of Scenic Points.” * |

5 Petitioners state that “Members of the ‘Advisory Board’s Contractor SG&A were silencéd and
* pressured not to disctiss views contrary td, the position of, ‘NIOSH. > ‘However; based upon the :
information we have reviewed, we fiaye seen no eviderice to support this allegation; In fact, ¢ the

seen no. o evidence that SCBA was silenced or présdured not fo
jews contrary to the position of NIOSH; in fact, we found,
“Thus share Hn mitt i ston raid by

. Recoisimendation: “We do not ‘réommend farther: rita regain this point of ‘appeal.

“¢ 1) “vtéthods wet u:

the Pétition was
submitted.” . . : .

wet in he poi of appeal, pon ay itt ed in “Process Basis: Poiis

ints of Appeal” #5 regarding the roles,
sto points #2-and #5 above, In’

Recohimendation:



NIOSH Response to HHS Administrative Pane! Report on Rocky Flats Page 2 of 10

radiation fields. The narrowness of these particular areas of expertise and the necessary
familiarity with the U.S. weapons complex makes the potential for perceived conflicts on
the part of Board members, as viewed by lay persons in the public, nearly unavoidable,
The Board requires qualified, competent members to accomplish its statutory duties.
Nevertheless, NIOSH must ensure, so far as possible, that no actual or perceived conflicts
of interest are allowed that would impair the objectivity or credibility of the Board.
Accordingly, NIOSH very carefully examines the particulars of the Board members’ .
work experiences, finances, arrangements, and other matters to neither exclude a Board
member’s contributions unnecessarily nor allow a Board member's participation when a
clearly perceived or actual conflict exists.

ABRWH members are Special Government Employees and thus, Government employees
for purposes of conflict of interest laws. To. assist members in meeting their obligations,
HHS requires them to file financial disclosure documents (OGE Form 450) pertaining to
their financial interests in the last 12 months, submit a curriculum vitae (CV),,and
undergo annual ethics training. Upon submission of Board members’ information, the
Designated Federal Official (DFO) of the Board (this person is also the Executive
Secretary of the Board) works with the CDC Federal Advisory Committee Management
Office (part of CDC’s Management Analysis and Services Office) and the HHS Office of
the General Counsel (OGC) Ethics Division to determine if conflicts exist and; if so,
whether a waiver under 18 U.S.C § 208(b)(3) is necessary and appropriate to allow the
Board member to participate in certain ABRWH activities.' These discussions also cover
whether any impartiality concems under the Standards of Ethical Conduct for Employees
of the Executive Branch (found at 5 C.F.R. § 2635,502) are at issue. NIOSH strives to
maintain a consistent process for developing waivers and discussing potential areas of
conflict with Board members. Throughout the process, NIOSH is advised by attomeys in
the HHS Office of the General Counsel’s Bthics Division, who review waivers for legal
sufficiency.

‘The Panel’s concerns and findings related to the waiver for Mr. Griffon do not reflect the
care and thoroughness of this process as applied to all Board members and especially Mr.
Griffon in this instance. There are two likely reasons for this discrepancy.

First, the Panel’s expectations for the documentation associated with a waiver differ from
actual practice by NIOSH and other CDC-organizations. In practice, waivers do not
routinely address circumstances that are examined by the agency and found not to .
represent actual or perceived conflicts. The waivers are practical documents intended to
guide the Agency in governing the allowable participation and prohibitions from
participation of the individual. The waivers are generally limited to addressing conflicts
or perceived conflicts that appear to mect the threshold of 18 U.S.C. § 208. Where
appropriate, these waivers may also address impartiality concems under 5 C.F.R. §
2635.502. and, sometimes, 5 C.F.R. § 2635.502. Where the officials responsible for

' For the sake of brevity, this collective group of Departmental and Agency: officials is sometimes referred
to as the “conflict of interest officials” in this document. This shorthand is merely intended to indicate
those persons (including a representative from the Office of the General Counsel Ethics Division) who are
charged with signing the waivers gratited to Board members.


NIOSH Response to HHS Administrative Panel Report on Rocky Flats Page 3 of 10

making the conflict of interest determination do not determine a potential conflict to be at
hand, that information would not necessarily be included in the waiver.

Second, the Panel is only briefly acquainted with conflict of interest considerations
applied to this particular Board, whereas this is daily work on the part of NIOSH and its
participating colleagues in OGC and CDC. NIOSH believes the Panel members would
be likely to agree with the conflict of interest determinations made by NIOSH, given
similar experience and context.

To thoroughly address NIOSH concerns with the section of the Panel’s report secnceming
the issuance of Mr. Griffon’s waiver, NIOSH will offer a paragraph by paragraph
discussion of the report (beginning on page 12 of the report):

e The first paragraph conceming Mr. Griffon on page 12 of the report indicates that
a waiver was issued for Mr, Griffon on October 6, 2006. This is true; in fact Mr.
Griffon had been issued several waivers since his appointment to the ABRWH in
March 2002, The October 6, 2006 waiver required Mr. Griffon to affirmatively
recuse himself from participation in specific matters including claims submitted
by the Steel Workers International Union (USW) at sites where Mr. Griffon was
under contract to perform work for USW; specifically: Paducah Gaseous _
Diffusion Plant, K-25 Gaseous Diffusion Plant, Portsmouth Gaseous Diffusion
Plant, INEL (Idaho National Engineering Laboratory), and Mound Plant.
Although Mr. Griffon has a contractual relationship with USW, his work for the.
union was and is limited to work at specific sites for medical surveillance.
Several of the contracts involved were actually between Mr. Griffon’s company
(CPS) and the Paper, Allied-Industrial, Chemical and Energy union (PACE),
which formed an alliance with the USW in early 2004 and completed a merger
with USW in early 2005. Given the nature of the multiple contracts Mr. Griffon
had with USW and PACE and the fact that the medical ‘surveillance work
performed by CPS did not always coricern radiological issues which would be
relevant to work under EEOICPA (either for Site Profiles or SECs), a policy
determination was made by the necessary conflict of interest officials (the DFO, -
CDC Committee Management, and OGC Ethics Division) that Mr. Griffon would
only be considered conflicted for those sites where he performed radiation-based
work for the USW, versus finding Mr. Griffon to be conflicted throughout the
DOE complex for any claims involving the USW. .A decision made by the
responsible official to grant a waiver pursuant to section 208(b)(1) constitutes a
determination and sometimes a limited-authorization under 5 C.F.R. § 2635.502
that the Government's interest in having an employee participate in a Particular
matter outweighs any questions concerning an employees impartiality.

This determination was appropriate due to the combination of considerdtions
presented by Mr. Griffon’s potential involvement and most of these
considerations are set forth in the waiver document itself. First and foremost, Mr.

? 60 Fed. Reg, 47208, 47222 (Sept. 11, 1995).



7 The Honorable Michael Lea i
‘to reconstii dose when individnat

‘The use of eo- i
population:and is permitted by regulation. Thus, there is no merit to the
Houcs rel by potitieis in his point df appa "

- Summary:

; Recommendation:, .

were appropriate and dosimeters were: line ln eprops ton, hich was’ :
_ the front unilateral torso, ing Fa

nsidered to be souicanty greater |
"+. than the whole body dose, ‘See April 7, 2006; SEC Petition Evaluation Report: Petition SEC- - *-
00030 at page 57 and 72. Weé-consider these methods to be: ‘appropriate for dos reconstiviction, 7

ae Tor eaiple, 3 CFR. § g: 2(b) states that, SIE: idval onitorings data, are’ hot...

available or'adequate, dose reconstructions inay use.monitoring'results for groups of

workers with comparable activities and relationships to the radiation environment,” § _ i

(a) provides that “For monitoring periods where external dosimetry data are

foe e 4 ‘estimate d.claimant’s dose based on interpolation,

using available: initorinig results from other time periods close to the period in question,

2; or based-on monitoring datd-on other workers engaged in‘similat tasks,” and § 82. 1G):

states that information that canbe used to‘supplement or substitute for individual : : :
Taoiiitoring data include “Monitoring data from co-workers, ifN1OSH ‘determiies they ae
had.a common relationship to ¢ radiation environment.” kh bon 0 be:

3. 16) (oor reads as follows:



The Honorsble Misha :

- neutron exposiires while eit at the Rocky Flats Plant
number of work iene :

. _Albo on August 6, 2007, , detent, ith respect to the flowing les exiployees ith."
“is feasible.to:reconstruct radiation dose with sufficient accuracy and, thus,
| ipployeos docs nat meet the statutory iteria for addition to the SEC:

addirig a class
Cohort, a challenge “tmust include evidence that the final desision relies mn a record of either

. substantial factual errors or substantial errors in the implement: tion of the procedures” set out in.

2 42 CER Part 83.""The pétitioners’: appeal letter States “We ... understarid that'we can appeal baséd ©
m on Violations in process and to challenge scientific facts that were used to’ deny our petition. We

“a appeal based oti both process and stience-in accor
‘The letter. then goes on to set out. il “Process Bas
: Points of Appeal.” :

h Becaude of that challenge and pursuant to 42: ‘GER § 83.18(b), yu appointed us to ‘apanel of

three HHS } personnel; ‘independent of ‘NIOSH, to. conduct an:administrative reyiew and provide

“recommendations fo'the Secretaiy concerning thé merits of thé challenge and the tesolution'‘of

: the issues ‘contested by the.challenge. The uridersigned, Alla Shapiro, MD., PhD., Joséph M.
i chi,

inski, M. hike M:

Po 18(b), we examinéa the views and information subyitted' y the
x pettiorers in the called the NIOSH evaluati reports, the teport con



NIOSH Response to HHS Administrative Panel Report on Rocky Flats Loe Page 10 of 10

concerning the completeness and adequacy of monitoring records were not
limited to union employees, the class was expanded to include nonunion
workers. There is no reasonable basis upon which to conclude that -
management or supervisory employees, who may not have been members of
the USW or predecessor unions, would not have been required to enter the
work areas of the employees they supervised and thus have an opportunity to
be exposed to the same sources of radiation as union members. Therefore,
NIOSH found that all employees were similarly or identically exposed, and
included this determination ia its evaluation report. It was not clear to NIOSH
at the time the petition qualified, nor is it clear today, how any of these :
qualifying bases would exclusively affect employees represented by the USW,
and not other employees at the site. Therefore, NIOSH deemed that it would
be infeasible and illogical to consider these issues only as they related to | —
union members, and not other similarly affected employees.

¢ As reflected in the verbatim transcript of the meeting of the Advisory Board
on Radiation and Worker Health held at the Four Points by Sheraton, Denver,
Colorado, on April 27, 2006 (available at -
http://www.cde.gov/niosh/ocas/pdfs/abrwh/tr042706.pdf), NIOSH stated the
following: : a . :

p.46, lines 11-23: - :

“The original-proposed class in the petition was all United Steelworkers of
America members employed between April of 1952 and February of 2005,
We fairly quickly determined that we couldn't really just limit this =- this
class to just union members. It — it wouldn't be feasible for us to do that,
and non-union members, we determined, should also be considered in this
petition because they also had potential for the kinds of exposure and the
kinds of concerns expressed in the petitior. So we expanded that class to
include all employees in that time frame.”

This statement is consistent with the justification provided in NIOSH’s
Evaluation Report and Submission Documents Review.

© . Itisnot clear to NIOSH how expansion of the proposed class to include all site

* employees selectively disadvantages union members. In fact, NIOSH considered
it favorable to the petitioners to expand the class so that any concerns that
surfaced in the subsequent deliberations could be considered, whether they were
raised by union members or not. Had any of those concerns formed the basis of
an eventual addition to the SEC, NIOSH judged that it would be favorable to
former Rocky Flats workers to open the class to as many workers as met the class
criteria, regardless of union membership.



NIOSH Response to HHS Administrative Panel Report on Rocky Flats” Page 8 of 10

Response: CPS and Mr. Griffon had several contracts covering multiple
sites with both PACE and USW (some contracts may have even predated
the involvement of PACE, as noted above). To the best of Mr. Griffon’s
recollection (he did not have time beforehand to study his files), those
contracts included a contract from approximately October 1996 — 2005 or
2006 to perform medical surveillance work at Paducah Gaseous Diffusion
Plant, Portsmouth Gaseous Diffusion Plant, and K-25 Gaseous Diffusion
Plant; a contract from approximately 1998 — 2007 to perform medical
surveillance work at Idaho National Laboratory (INL, also known as INEL
and INEEL), and, a current contract originating in approximately 2002 to
perform medical surveillance at the Mound Plant. Mr. Gtiffon would need
additional time to verify and/or expand on this information. Mr. Griffon
described his medical surveillance work as consisting of conducting
exposure assessments for toxic exposures (this iricludes both chemical and
radiological exposure) for various groups of workers arranged by
particular identifiers,(e.g., years worked, job titles, etc.). This work did
not include analysis of any individual records of workers, only aggregate
records of groups of workers. This surveillance was conducted in order to
identify and target workers for medical monitoring and intervention,
therefore, the focus was not usually on workers ill with cancer, but rather
those with various lung problems.
°. Please identify all DOE facilities at which you performed work for USW. and
’ describe the dates and nature of that work (environmental vs, radiological, etc.).
Response: See previous response and number six, this is an exhaustive list
to the best of Mr. Griffon’s recollection at this time.
e Did you ever perform work for USW related to Rocky Flats?
Response: No :
e During the period that the Rocky Flats SEC was under consideration (including
the 12 month period prior to that — approximately June 2004-September 2007),
did you do any work for Rocky Flats? For USW?
Response: Mr, Griffon did not do any work for Rocky Flats during this
period. He did work for USW during this period under his contract on
Mound Plant and he may have also been completing work under the other
two contracts referenced above (see number 2, these were originally
PACE contracts) at Paducah, Portsmouth, K-25, and Idaho. Mr. Griffon
would need additional time to more completely determine his work on
these latter contracts during the period. :
© Your CV lists Hanford and-Metropolis Ilinois as facilities where you performed .
work for USW, please describe the dates and nature of this work.

: Response: The work at Hanford was during the late 1990s
(approximately) and involved providing technical assistance for training
offered to radiation workers on handling hazardous waste. The work at
Metropolis Mlinois related to assessing an incident at the facility. It
required only 2-3 days of work and occurred in the late 1990’s
{approximately}. It should also be noted that Metropolis Hlinois is not a
covered facility under EEOICPA.



L The Hononbie Michal. Leavit- Pager 1B.

“financial interests of CPS were iimput Mr. Griffon - thing, althouigti his waive ‘allo’ atm
; to participate in matters of general applicability, he was prohibited from participating in any
thatter involving specific parties that would affect his or CPS”-financial interests, ‘It appéars:that
Department officials were‘concerned that if Mr. Griffon was ‘itted to: participate in specific
“party matters {that involved 4 site to Which he ‘provided: ‘consultirig services, sich participation * -*
could-lead to additional:business for him in the, future'and, thus; his participation could result in ae
financial benefit to him atid ‘his compiiny... This, as no! ed ‘by petitioners “Mi k, Griffon was
allowed to: vote in Spite of his relation With'the union” - Department officials apparenth
: concluded that since Mr. Griffo: did not provide consulting services for the local USW 2

Fomiien agreement with USW. IfMi. Griffox’ cout have oe
2 matter that would affect: the financial interests. of USW while’ he! chad a concurrent at caneuing i

"specific party matters, such as petitions subimtted Deine St Stee! Workers Taternational Union for _
- bari alias esi that t may have direct and: predictable effect aie personal .

" Griffon’s Waiver would not have applied and he :
: icky Flats matter; [We believe that a potential-conflict may::
: have existed for Mr. Griffon: if he or his company as, conéurrently providing consulting

, f'should hive been fectiéed from} Fartciatn in
“this te, bd wha he oon sch emi sla i it :. H

sacar ractermboe bother. he ee, Depart.
consulting work for:the USW:at Rocky’Flats, While itis possible that such an inquiry
was made, we haye seen no evidence of such an inqui



; there was adequate information:from the CV at east to flag for Department officials an issue that :
| SHould have been explored pridr'to- Mr. Gtiffon’s participation in the Rocky:Flats matter —
oe Departnient officials should have asked Mr: Griffon when‘he last provided. consulting services
. the USW, both at Rocky Flats and at other sites, and \ ; §

iew of the Rocky Flats matter, we Believe i it may rhave created
: However, without documentation of Mr, Griffon’s consulting set usW, ‘and given our
: anel’s limited ro! 3 with regard to fiictfinding beyond thé writ ‘record, we cannot :
ie whether such an appearari¢e concern for Mr. Griffon existed. We’ Would urge ethics"
officials at NIOSH and/or CDC, in consultation with OGC, to review this matter ffom-an
: appearance, standpoint: to ‘determine Whether’ Mr. Griffon should have. been Fectsed from...

email constitutes ah inquiry by. Departiacnt officials: ‘regarding Mr Griffon’ 8 consulting Services:
‘the préveding, 12 rionths., ‘On the other hand, Mr. Gefen Creal a, nor did. he. ;

i soenedieg th the, appearance issue e other than the email i eomesponen
‘tell whether: (3) Mr. Griffon j

may |
Griffon did provide conshiting services within the 12 month period to USW local unions,
* but not to, the Rocky Flats USW, and concluded that this di amount to'aii. appearani
problem. ‘It is:also possible that Departinent officials failed to make the proper inquiries,
but if ee had, they. would hav discovered that he did not provide consulting services



, DEPARTMENT. OF HEALTH & HUMAN SERVICES, |~

Deceit 29, 2008,

The. Honorable Michael 6: Leavitt

+: Sectetary.of Health and Human Services .

” . Depaitinent of Health and Human Services’ .
200 Independence ‘Avenue, S.W::

_ | Washirigton, DC 20201 °

‘National'institute for Occupational Safety and Heaith (NIOSH) or Geterminatio of the :
. | probability of causation by DOL, Regulations that implement EROICPA provide that thie’ :
: Secretary of HHS ‘may consider petitions fora class of employees: to be added ‘to the SEC, and: -
petitioners may obtain ah administrative review of a fiial decision by the Secretary to’ deny ett
.. addinga class to.the SEC. See'42 CFR § 83.18(a). Pursuant to 42 CFR'§ 83.18(b), and because -
a. challenge w: led by a class.of: Workers fron th Rocky! Flats Plant in Golden, Colotade, who
You deterniined should :not be added to:the SEC:you appoirited us, a panel of three HHS."

: - aeapldyeas ofthe Deporteizat of tay (pois its preliscessor agencies, or DOE
: contractors or subcontractors ‘who were. monitored or should have been monitored for

: r in combi Hon wit york dese oitan paratieiers established
. Sane ae ote cnors of ply he Spel sore Corset fe

jonnel, eau of NIOSH, t to co a administrative review, This letter serves asour: |



NIOSH Response to Report from HHS Special Exposure Cohort (SEC) Administrative
Review Panel re: Rocky Flats Plant SEC

Introduction

Pursuant to HHS regulations at 42 C.F.R. § 83.18, petitioners for the Rocky Flats Plant
filed an appeal of the determination of the Secretary, HHS, to not inchide a class of
workers at the Rocky Flats Plant in the Special Exposure Cohort (SEC) created by the
Energy Employees Occupational Iliness Compensation Program Act (EEOICPA or the
Act). The Secretary appointed a three-person panel of HHS personnel to conduct an
administrative review of this appeal. The Panel has concluded its work and largely
agrees with the findings and actions of the National Institute for Occupational Safety and
Health (NIOSH) in this matter, .The Assistant Secretary for Health, HHS, requested
NIOSH submit additional information on two items where the Panel determined that it
did not have adequate information to reach conclusions. NIOSH understands that the
information and materials it submits in this response will be included in the information
provided for consideration by the Secretary, HHS, and may also be included in the
information provided to the petitioners and public once the Secretary reaches a decision.
The items addressed by NIOSH are numbered below according to their enumeration in
the draft Panel report provided to NIOSH for response. .

Item # (6) “Inconsistent Application of Conflict of Interest Requirements”

Petitioners raised concerns about the corisistent application of conflict of interest
requirements for members of the Advisory Board on Radiation and Worker Health
(ABRWH or the Board), specifically questioning the determinations made regarding two
ABRWH members, Josie Beach and Mark Griffon. The Panel’s report did not find merit
with the petitioners’ concems relating to the conflict of interest determination for Ms.
Beach and recommended no further action on that issue. The Panel did, however,
express concems regarding the potential of a conflict of interest for Mr. Griffon. The
Panel’s summary of the discussion regarding Mr. Griffon, states that “a potential conflict
of interest and/or an appearance concer may have existed for Mr. Griffon,” but the Panel.
Jacked adequate written documentation to conclusively determine-“whether there is merit
to the issues raised by petitioners” on this point. (See Item # (6), Summary, page 16 of
Report). The Assistant Secretary for Health has requested NIOSH provide additional
information regarding the conflict of interest determination for Mr. Griffon.

It important first to note that the policy approach taken by NIOSH in identifying and
managing conflicts of interest for ABRWH members is to seek to maximize the
participation of Board members in Board activities, consistent with applicable conflict of
interest requirements. As directed by EEOICPA, the ABRWH reflects a balance of
scientific, medical, and worker perspectives with expertise in the health physics and



o fe 8 Sup Class 8 in ICRP-66) i :

dé ermining’ Tung dose and more soluble forms for iion-1 -respiratory organ doses thus .

; overestimating both respiratory .and non-respiratory organ‘doses. See. -April 7,:2006, SEC: :

.... Pétition Evaluation Report: Petition: SEC-00030, Section 7.51.1,.: This approach also. results in.

les claimant favorable dose estiinates: for-respiratory and non“respiratory organs..:Furthetmore, in. -
adopting this approach, | ‘NIOSH was in compliance with 42: CER § 82. 2¢@), which states in :

If iation’ exposures the wor seiplace environment cannot be fully erizedl based
on available data, default, values based on reasonable’ and scientific assumptions maybe
used i t \s structions conducted in occupational illriés: :
 inchidé'use of assump! ‘that
!  . worst ‘case 'conditions. For example, if the solubility classification of an inhaled. mat :
* can not bé determiisied,,the dose recotistruction would usé the: classification that results id...
the largest dose to the.c organ or:tissue relevant to the'cancer avid that i is ‘possible j given
existing knowledge of the material and Process. i B. : .

; oe We do not recommend farther action rari this point of of appeal

 ingluded ‘in the TCRP-6 which were deena an scientific consensus independent fom
.NIOSH. Fora amore detailed 4 Geserption Of ofthe ic 6, pleiise see Out resporise to poirit #2



Page 2 —

determinations for individuals serving on the ‘Advisory Board on Radiation and Worker
Health and will work closely on this with the HHS Office of the General Counsel’s
Ethics Division. I am enclosing a copy of the administrative review panel’s report to me
as well as NIOSH’s requested response to issues raised in the report. I hope you find this
information helpful.

» Sincerely,

Michael O. Leavitt

Enclosures



ROCKY FLATS SEC 00030 APPEAL OF HHS DECISION DATED AUGUST 6, 2007

of NIOSH’s delay in the petition process, the Rocky Flats workers were in fact no
longer members of the United Steelworkers union at the time of the Board’s vote.
There was no financial tie or benefit or association and so there was no reason that
Ms. Beach should have been denied her right to participate. The Petitioner requested
for the Conflict of Interest to be re-evaluated based on the fact that there was no
longer one and NIOSH said it did one but refused to provide any evidence that such a
re-review was conducted or the name of the attorney who conducted the review. The
following is a direct quote from the Petitioner’s Presentation to NIOSH on May 3,
2007 — “We have learned that some members of the Board have been instructed that
they cannot vote on the Rocky Flats petition based on relationship with the United
Steelworkers. As a direct result of NIOSH’s delay in addressing this petition, if ever
valid, such a restriction is no longer valid today for the following reasons: 1)The
Rocky Flats workers on behalf of whom this petition was filed no longer have any
financial or contractual relationship with the United Steelworkers; 2) Local 8031 no
longer has a single nuclear worker in its membership; 3) The United Steelworkers no
longer receive any dues from the former Rocky Flats members nor do they provide
representation or services to the members; 4) The United Steelworkers do not benefit
in any way from the approval of this petition; 5) NIOSH on its own right expanded
the class to include all RF employees so it is no longer a “Steelworker” petition.
Therefore no relational conflict exists today. No legal basis was ever provided.

7) Inappropriate Expansion of the Rocky Flats Class of Workers from its Original
Submittal as a “Steelworker” Petition to include all Rocky Flats Workers. This
decision was extraordinarily inappropriate for the following reasons: 1) the U.S.
Steelworkers filed the petition on behalf of its membership under the special
provisions for labor organizations. The U.S. Steelworkers of America, Local 8031
had no right of legal representation for members of the expanded class and therefore
those new class members were unrepresented; 2) no information was gathered on
behalf of the expanded class or included in the petition; 3) they are now, effectively,
denied based on a petition that submitted no information on their behalf and so they
went unrepresented in the process. We believe NIOSH did this on purpose to make
the Class unpalatably large so that it would have to be denied — they had no intention
of granting SEC status for Rocky Flats workers so they wanted to deny everyone in
one action.

8) Politics and Budget Denied the Rocky Flats Petitioners a Fair Review Based on
Science, Instead the Board and NIOSH Were Pressured to Find Any Reason to
Deny Petition 00030. We are concerned that politics and budget were a major factor
in the decision process. This is particular disturbing in light of the deliberate action
on NIOSH’s part to expand the class from its original size of 4,000 Steelworkers
potentially, with less than 1,400 expected to be ultimately compensated to a class,
with no basis, of 20,000 people. In making this expansion, NIOSH stated in its April
7, 2006, recommendation, “NIOSH determined that all employees were similarly or
identically exposed, and therefore, cannot be disaggregated from the union workers
with respect to their work and exposures.” This statement is a gross error in
representation. The union Collective Bargaining Agreement clearly defines the work
scope of the Steelworkers facilitating ease in disaggregating the union workers from

PAGE 4 OF 7 ‘SEPTEMBER 6, 2007


NIOSH Respouse to HHS Administrative Panel Report on Rocky Flats Page 6 of 10

eventuality. This language should not be read to imply that the waiver is not .
complete and accurate upon the date of its issuance.

e The third paragraph of the Panel’s Report also questions the lack of inclusion of °
two facilities listed in Mr. Griffon’s CV, Hanford and Metropolis Hlinois, in his
waiver. The Panel appears to assume that if a specific item appearing in Mr.
Griffon’s CV is not addressed in the waiver then it was not discussed by the
conflict of interest officials, This is not the case. By its nature, a CV represents a.
cumulative listing of all professional work, publications, etc., over the career of
the individual. Mr. Griffon’s work at both Hanford and Metropolis Illinois
occurred in the 1990s, prior to his appointment to the Board and outside of any
financial disclosure reporting periods. Furthermore, the nature of Mr. Griffon’s
work at Hanford was related to training radiation workers to handle hazardous _
waste and therefore was different in kind from the work examined under
EEOICPA. Mr. Griffon’s work at Metropolis Illinois involved investigating an
incident and would give rise to a conflict if it fell within the appropriate time
period and if the facility were a covered facility under the Act.” However,
Meiropolis Illinois is not a facility covered by the Act and therefore Mr. Griffon’s
work there would not in any case raise a conflict of interest matter for his work on
the Board.

© The final paragraph on page 14 of the Panel’s Report reiterates the lack of formal
documentation of Department officials’ consideration of a potential conflict of
interest appearance concern under 5 C.F.R. § 2635.502 for Mr. Griffon at Rocky

ce his appointment to the Board in
2002 and the conflict of i interest officials at NIOSH routinely review items from
previous OGE 450 submissions as well as a Board member’s CV. during each -
waiver discussion. These discussions are far-reaching and appropriately consider
potential concerns represented in the OGE 450s and CVs of the Board members,
including Mr. Griffon. .

The Panel could not reach a determination as to. whether an appearance of a
conflict exists for Mr. Griffon because they did not have all the information
necessary to make such a determination. At no point did the Panel actually
discuss the issues of concer with Mr. Griffon, nor with any of the conflict of
interest officials actually involved in the decision. Furthermore, it is unclear how
the Panel considered the additional information and context that was provided to
them. The Panel recommends that Department officials look at these issues now
and decide (or redecide) the matter. NIOSH again must state that it stands by the
original decision as made and notes that these issues were fully considered.

* See Footnote 2, above,


| The Honore Michael O, Leavitt - Page 27._

‘This feport eviluated hs feasi iin for coiileting ions for j
the Rocky Flats Plant between cape 1952, and id February, 200 5.. NIOSH: found i that the

-_ tot doa any pour ofenoyos atc Beh aur th ine pred wich .
“would not be feasible le dee, : —

: : Finally, patitioners: generally seltcrate d the & concerns they raised i in “Scientific B:
: Appeal” #5 above ams thie: soo-worker model; Stating ‘that they “are concerned about, the’

fe adequacy of
* point #5 abo

E inal maiitorinig téetiniques ‘used at.the Rocky Flats. Plant ¥
standard and appropriate. : Dose recotds for intéral and: external’
monitoring were sufficient for proper; dose reconstruction. _ Thus, there is
merit to the issues raised by is poi oS

We do no secommead furth action regarding ths point of seal

Decision to Expand the Class: °

ne Ape #8 tegarding NIOSH’s decisiod fo. exparid the class of Rocky Flats, Platit workers ti be i
foe congidefed for addition tothe SEC Pi int abo

ipitheet Divergence i in Scientific nee and: ay teiterate Séveral concerns raised in

‘previous ‘points of appéal. For example, they restate'the allegations raised in “Scientific Basis:

: Points of Appeal” #2 and #3: ‘regarding the lack 6f scientific basis to support the models:
Giickuding use of, particle size and: material: class) used by NIOSH 08



_ ‘The Honorable Michael O, Leavitt - Page 11.

: elated to the Rocky, Flats SEC on May 7 2:3, 2007; :

Subgedient to that, on May'21, 2007; petitions. ”
:. requesting that the determination that Ms, Beach had‘a conflict'ofi interest be reconsidered given,
that the USW union no longer had inembers who were’ Rocky Flatd workers since thé plant had
-dlosed down: Relsted:to this, in: this point of appeal; petitioners state that “The Petitioner..:::
' requested for the Conflict of Interest to be re-evaluated based on the fact that there was:no Tonger
one and NIOSH said it did [a re-evaluation] but refused | to prov

“> email | Corresporidence corifirming | ‘that a conversation ‘onthis subject t took: place during't the 5:
-moming of June 11,2007, prior-to the: sRocky Flats Plant follow- up meeting in Denver. These
“eriails mike’ ‘clear that" at Depastmént officials reconeldered 1 their prior decision that Ms. ibad

, participate 1 under this regulation due to the aopearanca of cont or. bias oft her part’ Ms, Bedcli .

"was a current empleyée of USW.and, thus, had 4 a.covered relationship:with USW;: USWiwas a

: party to the Rocky: Flats matter; the determination on whether the Rocky Flats workers qualified
‘inthe SEC Was a spodiic pity iater and reaisoriable person knowing that Ms. -Beach was an

: h

nh petitioners’ contention that “There | Was TO financial tie of benefit or association and so there was:
ed her ig. to patti i ate,” the financial interests :



| waiver irichides a list of peitic patty i inatters met tren tobe ifastrative ors use of tlie words |
- Sguch as” or “e.g,,”) * and:in other places, the listing of specific:party matters appears ‘to be
. exhaustive.’ Inaddition, although Mr. Griffon’s waiver indicates that specific party matters
include claims filed by the USW for workers at the DOE sites listed on his CV, the:waiver does.
_not include, Hanford or Metropolis linois (which also were listed 6n his CV); there is no. ,
documentation as to.why this was done. ‘Regardless of what'was meanit:by the language oft the
i waiver, Mr. Griffon participated i in the: Rocky Flats SEC decision.

ver also specifically gates that,

: | Mr. Grifon will remain subject to the -dinquaiiction requiresant inposd by 5 CFR §:
2635.502 [the appearauice standard] with ssepect to specific part matters... .°. that

“Mr. Giiion’sconct of iterest

: Again, we re have not seen evidence that: ‘Department officials looked ibto' the. possibility tliat Mr.
: ¥ appearance concern that would have, required him-to recuse | ‘himself.
from participation i in the Rocky Flats matter: “To this ent Mr. Griffon hada’ covered: télationship
-:, not only with cps, but ‘with any. organization. for whom he provided. consulting services eith .

spooilia party rhatters (e. ra ., those ‘of specific petitions ¢
International Union for workers atithe Paducah, K-