NANCY LEE & ASSOCIATES

Certified Verbatim Reporters

P. O. Box 451196

Atlanta, Georgia 31145-9196

(404) 315-8305

THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

PUBLIC HEALTH SERVICE

CENTERS FOR DISEASE CONTROL AND PREVENTION

NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH

convenes the

FIRST PUBLIC MEETING ON

PROPOSED SPECIAL EXPOSURE COHORT PROCEDURES

The verbatim transcript of the Town Hall

Meeting held at the Buffalo Niagara Marriott,

Amherst, New York, at 7:00 p.m. on July 23, 2002. 
2 

NANCY LEE & ASSOCIATES

1 P R O C E E D I N G S

2 DR. NETON: Good evening, ladies and

3 gentlemen. I think it’s time to get started. 

4 I’d encourage everyone to move up if you are

5 sitting in the back. There’s plenty of room here

6 this evening for all. 

7 Welcome to this public meeting on the

8 Department of Health and Human Services proposed

9 rule that outlines the procedures for considering

10 petitions for adding classes of workers to the

11 Special Exposure Cohort. If you haven’t done so

12 yet, sometime during the meeting or before you

13 leave we’d ask that you register at the table on

14 the right, to the right of the door at the back

15 of the room. If you would please do that we

16 would appreciate it.

17 My name is Jim Neton, and I will serve as the

18 moderator this evening for this meeting. I am an

19 employee of the National Institute for

20 Occupational Safety and Health -- NIOSH -- and

21 I’m the Health Science Administrator for the

22 Office of Compensation Analysis and Support in

23 NIOSH. Our office is based out of Cincinnati,

24 Ohio.

25 With me this evening is Ted Katz, to my left
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1 here, who will be providing a presentation a

2 little later to present an overview of the

3 proposed rule for you. 

4 The purpose of our meeting is to provide

5 NIOSH the opportunity to present and discuss the

6 procedures outlined in the proposed rule that was

published on June 25th 7 in the Federal Register. 

8 As you likely know, the proposed procedures, as I

9 mentioned, will be used by NIOSH to consider

10 petitions for classes of workers to be added to

11 the Special Exposure Cohort. 

12 During the meeting we welcome questions and

13 comments on the rule. All comments made during

14 the meeting will be recorded and considered in

15 the finalization of the rule itself. Transcripts

16 of the meeting will be available for viewing on

17 our web site. We anticipate that those

18 transcripts will be available within about a

19 couple of weeks. We also encourage written

20 comments on the proposed rule. These can be

21 submitted to the regulatory docket via means

22 described in the fact sheets that are provided at

23 the back table. 

24 If you haven’t been back there yet, there is

25 a fact sheet on the town meeting. There’s also
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1 some other information on the, I think, copy of

2 the Federal Register notice, a copy of the

3 overheads that Ted will be presenting this

4 evening, as well as a couple of other additional

5 fact sheets that may be of interest to those in

6 attendance this evening. 

7 Now I would like to briefly go over the

8 format of our meeting this evening. As I

9 mentioned earlier, after my introductory remarks

10 Ted will provide an overview presentation of the

11 Special Exposure Cohort rule. And then at the

12 conclusion of Ted's prepared remarks we'll have a

13 question and answer session to answer any

14 questions or comments you may have on the

15 presentation itself, and then we will follow that

16 by an open comment period. 

17 We ask that you queue up during the question

18 and answer and comment periods at the microphones

19 that are located in the aisles, and identify

20 yourself before you speak for the record, and

21 your affiliation. 

22 After the meeting concludes, NIOSH staff will

23 be available to answer -- briefly available for a

24 short time to answer any questions that people

25 may have after the meeting is over, which is
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1 scheduled to be completed by 9:00 o’clock this

2 evening. 

3 Are there any questions or comments before we

4 get started? No? 

5 Yes.

6 MR. TOBIAS: My name is Francis Tobias. I

7 filed a claim based on my father's exposure at

8 Bethlehem Steel and subsequent death after that. 

9 I think there may be some confusion as to the

10 purpose of this meeting. I know there are some

11 other people that are here for the same reasons I

12 am, but is this just for a Special Cohort?

13 DR. NETON: That's correct. 

14 MR. TOBIAS: Because there are a lot of other

15 questions that we came to get answered. Now are

16 we going to be able to get those questions

17 answered in addition?

18 DR. NETON: Given the time available, we'll

19 do the best we can to answer those questions. 

20 But the purpose of the meeting, though, is to

21 discuss the Special Exposure Cohort.

22 MR. TOBIAS: But why was -- can you tell me

23 why there wasn’t better publicity on this

24 meeting?

25 DR. NETON: Well, it was publicized through
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1 the local media, the radio stations –-

2 MR. TOBIAS: Oh, it was?

3 DR. NETON: Yeah, the newspapers, television

4 stations. I really don’t have a sense for how

5 well it got out. I’m sensing, from talking to a

6 few people before the meeting, that it did not

7 get well publicized, and I’m really not certain

8 why. We'll certainly check into that and find

9 out what occurred.

10 MR. TOBIAS: How long is your presentation,

11 can you tell me?

12 DR. NETON: Ted's presentation?

13 MR. KATZ: Yes, I’m going to try to keep my

14 presentation to under half an hour.

15 MR. TOBIAS: Okay. 

16 MR. KATZ: If you want to signal to me that

17 I’m going too slowly I'll try to speed it up even

18 more, but I think there still will be really

19 plenty of time for you. We will stay on beyond

20 the 9:00 o’clock to hear you, so –-

21 MR. TOBIAS: Okay, thank you. 

22 DR. NETON: Just as a point of clarification,

23 where NIOSH fits into all of this, the Department

24 of Health and Human Services is tasked with doing

25 the dose reconstructions for the workers. The
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1 Department of Labor administers the overall

2 program. Within the Department of Health and

3 Human Services there is the Centers for Disease

4 Control and Prevention, of which NIOSH is a part. 

5 NIOSH has the lead role in the Department of

6 Health and Human Services in issuing the rules,

7 regulations, and doing the dose reconstructions

8 for the Energy Employees Occupational Illness

9 Compensation Program Act. 

10 So I guess with that I'll turn the

11 presentation over to Ted to provide the overview

12 of the Special Exposure Cohort.

13 MR. KATZ: Okay, so thank you, thank you for

14 coming. And I'll be walking you through these

15 procedures at a pretty extensive level, I think,

16 because I expect not all of you have read them. 

17 Maybe none of you have read them, I don't know. 

18 And even if you have read them, I think this may

19 help you understand certain things that may not

20 be that clear in reading the procedures. I know

21 regulations aren’t that much fun to read, but

22 we'll do the best we can. 

23 And then afterwards, after I present, we'll

24 spend some time where you can get clarification

25 from me on things I said or things you read in
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1 the rule. And then we'll move on from there to

2 getting your comments on the rule, any

3 recommendations you have for things that can be

4 improved before we issue this rule as an

5 effective law.

6 Now let me just -- a little background. I

7 don't know -- this may be redundant for many of

8 you -- but to talk about what is the cohort, the

9 Special Exposure Cohort? It was actually

10 established -- it exists already -- it was

11 established under the Energy Employees

12 Occupational Illness Compensation Program Act. 

13 I’m going to from now on pronounce that

14 EEOICPA, because it is a ton of words to spit out

15 otherwise. Under EEOICPA I’m going to talk about

16 the cohort, instead of spelling out the whole

17 name when I talk to you about this. 

18 The Congress established this cohort in

19 writing this law and put four groups into the

20 cohort initially. Three of those groups are

21 certain employees of the gaseous diffusion plants

22 of the Department of Energy, and the fourth group

23 are employees of a nuclear test site in Amchitka,

24 Alaska. So that established the cohort. 

25 And if you are in this cohort, if you are an
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NANCY LEE & ASSOCIATES

1 employee in this cohort and you have one of 22

2 what are called specified cancers, then you can

3 apply for compensation with the Department of

4 Labor, and if you meet certain other basic

5 conditions you would be compensated. The

6 important point to make here is what’s different

7 for cancer claimants who are in the cohort is the

8 Department of Labor, in their case, does not have

9 to determine whether or not their cancer was at

10 least as likely as not caused by radiation, as it

11 does for all other cancer claims under EEOICPA. 

12 So that’s what makes this group special or

13 different. 

14 Now what is the purpose of the proposed rule? 

15 Well, the administration and Congress realized

16 that there may be other circumstances where

17 employees will not be able to have dose

18 reconstructions individually and have a

19 determination as to whether their cancer was at

20 least as likely as not caused by radiation. And

21 in those cases those individuals would need a

22 remedy as well. And we’re talking about cases in

23 particular where there is really a dearth of

24 information on what their radiation exposures

25 were. 
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1 So the President was assigned by EEOICPA to

2 add classes of employees to the cohort, and he

3 was required to develop procedures for doing

4 this. This was then delegated -- because the

5 President doesn’t do this kind of work generally

6 -- was delegated to the Secretary of Health and

7 Human Services, and has fallen to us. As Jim

8 explained, we are part of the Department of

9 Health and Human Services under the Centers for

10 Disease Control. 

11 The reason that this has come to us as a

12 responsibility is because we do, and have done

13 for a decade or so, health research on Energy

14 employees, and so we know a lot about Department

15 of Energy facilities, their operations, their

16 record systems and so on, and about the health of

17 Energy employees. So this is why this came to

18 us.

19 Now EEOICPA not only said, President, do this

20 and develop procedures for this; but it set out

21 some basic requirements. Most importantly, it

22 set out some criteria for when you could add a

23 class to the cohort. And there are two of them,

24 and they are listed here.

25 The first criteria is that you can only add a
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1 class if NIOSH can’t do dose reconstructions for

2 individuals with sufficient accuracy; and

3 secondly, even if you can’t do those, you still

4 need to find that it’s reasonably likely that the

5 radiation doses endangered the health of that

6 class, that group of workers that you are wanting

7 to add. So those are the requirements that were

8 established by the law. 

9 The law also required certain procedures to

10 be involved in this process of adding classes to

11 the cohorts. It required the classes petition to

12 be added to the cohort. 

13 It also required that HHS obtain the advice

14 of the Advisory Board on Radiation and Worker

15 Health. Now this is an Advisory Board that’s

16 appointed by the President. It’s standing; it

17 exists now. It advises the Secretary of HHS on a

18 variety of duties, but one very important

19 function of this Board is to advise us on Special

20 Exposure Cohort petitions. And the Board

21 consists of physicians who are expert about

22 radiation and health physicists, scientists who

23 are -- as well as people who worked in the DOE

24 complex, so worker representatives. 

25 One other requirement that’s important that
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1 was set out by EEOICPA is that Congress was given

2 a 180-day review period. So the Secretary of HHS

3 will make decisions as to whether to add a class

4 to the cohort, but after the Secretary of HHS

5 makes that decision Congress basically said we

6 want 180 days to consider those decisions,

7 positive decisions to add a class to the cohort,

8 before that becomes effective. That was a

9 requirement of Congress. 

10 So let me just tell you a little bit about

11 what guided our thinking going into this, and

12 then I'll walk you through the procedures

13 themselves. But first of all, of course, we

14 considered the requirements of EEOICPA. That’s

15 the law. Those are conditions under which we

16 have to do these procedures, develop these

17 procedures. 

18 Our goal is really simply to have fair,

19 openly decided decisions. And so we’ve set out a

20 procedure that we think is open, and we hope is

21 fair, and we will work with you, of course, to

22 ensure that that is the case before these are

23 finalized. 

24 And the last point I just want to make is

25 that the decisions to add a class to the cohort
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1 are really, in a sense, grave decisions, and we

2 view them as grave decisions. They have

3 important consequences because if you add a class

4 to the cohort, members of that class then can

5 only be compensated for the 22 cancers that are

6 specified cancers as allowed by EEOICPA, allowed

7 by the law; and if you have a different cancer

8 you cannot be compensated under this program --

9 for example, if you have prostate cancer or skin

10 cancer. 

11 So when we make decisions to add a class to

12 the cohort it’s a grave decision. It’s an

13 important decision. It has real implications for

14 some members of that class, in all likelihood,

15 because some members of a class are likely to

16 have skin cancer or prostate cancer. 

17 So here I’m going to walk you through the

18 procedures now. Who can petition, was the first

19 question we had to answer with these procedures. 

20 And we left it about as wide open as it could

21 possibly be, I think. We didn’t do as you would

22 require in a class action suit, when you talk

23 about a class where you would have to organize

24 all the individuals in the class and sign them

25 up, in effect, to bring suit. In this case just
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1 one or more covered employees and/or their

2 survivors can file on behalf of a class. And

3 likewise, we allowed unions to file on behalf of

4 a class. 

5 And how do you petition? Basically, decide

6 whether you can meet the petition requirements,

7 complete and submit a petition format. We’re

8 going to have a form that’s going to be available

9 over the Internet. You can complete it

10 electronically or in paper form, but either way. 

11 And we will be providing assistance. 

12 Let me talk to you now about the petition

13 requirements. The most important point about the

14 petition requirements is they differ very

15 substantially based on whether or not you have

16 already submitted a claim for a cancer, and NIOSH

17 has been unable to complete a dose reconstruction

18 because the records simply aren’t there to do an

19 adequate dose reconstruction. So that’s one

20 group of people, and the requirements for that

21 group are one thing. And then there are

22 requirements for anyone who hasn’t already done

23 that, hasn’t already attempted to get a dose

24 reconstruction from NIOSH. 

25 But if we’ve attempted to do a dose
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1 reconstruction and we were unable to complete a

2 dose reconstruction, we will encourage you to

3 petition for a class, and we will provide you

4 with the information to do it. And it’s really

5 very simple. You will indicate on the petition

6 form that NIOSH was unable to complete a dose

7 reconstruction. You will provide otherwise --

8 contact, and a variety of other information. You

9 have an opportunity to provide additional

10 information if you want. But really that’s all

11 you have to do, indicate we couldn’t do a dose

12 reconstruction. That petition, then, rests in

13 our hands. There’s no other requirements; very

14 simple.

15 Now let me talk about the situation where no

16 one in the class has attempted to get a dose

17 reconstruction. And perhaps -- as I point out at

18 the bottom, you see at the bottom of this slide -

19 - it may be a case where no one in the class even

20 has incurred a cancer yet. Then there are

21 different requirements for what you would have to

22 do to petition. 

23 You’ll have to define the class -- what

24 facility are we talking about, what sort of job

25 titles, duties, period of employment, and so on. 
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1 You’ll have to document the reasons to believe

2 that there was a health endangering radiation

3 exposure. And there are a variety of ways. The

4 form that we provide will pull this out of you,

5 the details that you have to provide. 

6 And thirdly, you’ll have to document reasons

7 to believe doses couldn’t be estimated, do dose

8 reconstructions with sufficient accuracy. And

9 again, the form will pull this out of you, the

10 details that you have to provide in this case. 

11 And then the question becomes will you meet

12 the requirements, will your petition be

13 evaluated? Again, going back, if you attempted

14 to have a dose reconstruction, if we attempted to

15 do a dose reconstruction and we couldn’t do a

16 dose reconstruction, your petition will be

17 evaluated. That’s already a done deal. There’s

18 nothing, no question about that. It will receive

19 a full evaluation from NIOSH, the Board, and HHS,

20 and a decision will be rendered. 

21 For other petitions, if no one has attempted

22 to have a dose reconstruction, HHS will decide

23 whether or not you meet the requirements. You’ll

24 be informed as to whether you don’t meet the

25 requirements and why, what’s lacking in the
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1 petition. And you’ll have 30 days to revise the

2 petition, and NIOSH will be available to guide

3 you through that process. And then HHS will make

4 final decisions on whether to evaluate those

5 petitions, and it will do it with the advice of

6 this Board that I told you about.

7 Now how do we go about evaluating the

8 petition? We’ve already made the hurdle. You

9 meet the requirements. The petition meets the

10 requirements. We’re going to evaluate the

11 petition. NIOSH, it will be on NIOSH’s back, not

12 on petitioner’s back, to obtain the full

13 information records from DOE and other sources

14 that we would require to evaluate the petition. 

15 And we will be coming to you, of course, the

16 petitioner, as one source of information. But we

17 will be going to DOE, to the AWEs, to our sources

18 from having done health research in this area,

19 from all possible sources to evaluate the

20 petition. 

21 And we will determine whether the dose

22 reconstructions are feasible, because that’s the

23 first issue. We have to find, in effect, that we

24 can’t do dose reconstructions for the petition to

25 be granted. And secondly, we will determine
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1 whether potential radiation dose levels, what the

2 potential radiation dose levels were and whether

3 they were likely to have endangered health. And

4 then we will report these results to petitioners

5 and the Board. 

6 And now I'll get into more detail about how

7 we go about this, how we determine potential

8 radiation dose levels. This is a case where we

9 are talking about, in some of these cases, the

10 petitions that are going to be successful are

11 cases where we can’t do individual dose

12 reconstructions, we don’t have that level of

13 detail on people’s exposures. 

14 But we will get information on the radiation

15 sources potentially present, on their possible

16 quantities, on their possible characteristics of

17 employee exposures and use of radiation

18 protection. Much of this information will come

19 from workers themselves and managers in the

20 programs, as well as whatever information is

21 available from the records. And we continue to

22 find records, more and more records that nobody

23 knew existed. So we will have some success

24 there. 

25 And then NIOSH technical staff will judge
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1 whether the radiation doses could have reached

2 the level determined likely to endanger health,

3 as specified in the rule. I'll now explain what

4 that means. How do we determine what level of

5 radiation is reasonably likely to endanger

6 health? That is what the law requires us to do. 

7 NIOSH will determine the minimum dose of

8 radiation reasonably likely to cause specified

9 cancers. 

10 So we have gone from the law said “endangered

11 health,” and we have gone specifically to we are

12 going to determine what level of radiation is

13 reasonably likely to cause specified cancers. 

14 Why are we doing that? We’re doing that because

15 you can only be compensated under EEOICPA if

16 you’re part of the Special Exposure Cohort for

17 specified cancers. No other health condition

18 will be compensated as part of the Special

19 Exposure Cohort. And also, we have a way of

20 determining likelihood that a cancer is caused. 

21 And one important point to make about this is

22 that that dose -- there is no one dose we’re

23 talking about here. The dose will differ,

24 likely, for each class. And it differs for a

25 number of reasons, because it depends on the
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1 source and type of radiation; it depends on the

2 types of cancer that are related to the types of

3 radiation that was incurred; it depends on the

4 characteristics of the class and other factors. 

5 So there are a variety of things that affect what

6 that level might be. 

7 NIOSH technical staff will calculate minimum

8 dose using factors that are favorable for the

9 petition. This is very important. There are a

10 lot of factors, as you realize. Here we are

11 talking about a level of generality in terms of

12 our information on radiation doses. So there are

13 lots of suppositions, assumptions that have to be

14 made. And what we are saying is we are going to

15 be making assumptions that are very favorable to

16 the petition being granted. 

17 A key example to give you here is we are

18 going to be using the types of cancers among the

19 specified cancers that are related to the

20 exposure that are most readily caused, caused at

21 the lowest doses, to formulate our benchmark,

22 your hurdle that you have to rise to, to be

23 granted the petition. 

24 What happens after NIOSH does all this work,

25 evaluation work? 
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1 You would like to ask a question now?

2 MR. TOBIAS: Can I ask a question?

3 MR. KATZ: Yes, yes, go ahead.

4 MR. TOBIAS: I’m just wondering whether your

5 comments about the dose reconstruction, is it

6 again specific to the Special Cohort group, or is

7 it general to all the groups? I think it’s very

8 important to -–

9 MR. KATZ: Can you just help me understand

10 the question a little better? 

11 MR. TOBIAS: Well, you talk about you're

12 going to assign some dose reconstruction numbers

13 from somewhere. You're going to get these –-

14 MR. KATZ: Estimate doses, yes.

15 MR. TOBIAS: But is it only for the Special

16 Cohort group –-

17 MR. KATZ: No, no, we –-

18 MR. TOBIAS: –- or atomic energy plants, or

19 Department of Defense plants also?

20 MR. KATZ: Absolutely. 

21 MR: TOBIAS: Okay.

22 MR. KATZ: Absolutely.

23 MR. TOBIAS: Oh, all right. Thank you. 

24 MR. KATZ: So it’s not just for people who

25 work for the Department of Energy, but for all
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1 the AWEs as well.

2 MR. TOBIAS: Thank you.

3 MR. KATZ: That’s right. 

4 Yes, I’m sorry? 

5 DR. NETON: Could –-

6 MR. KATZ: Oh, can you please –-

7 DR. NETON: Speak into the microphone and

8 identify yourself for the record, please.

9 MR. KATZ: Use the microphone and identify

10 yourself, just because we need this for the

11 records. Thank you. 

12 MR. RAUCH: Your previous -- Jim Rauch. I’m

13 with FACTS, For A Clean Tonawanda Site.

14 COURT REPORTER: I’m sorry, sir, could you

15 say that again?

16 MR. RAUCH: Jim Rauch, R-A-U-C-H. I’m with

17 For A Clean Tonawanda Site, a citizens group

18 formed around the Manhattan Project site in

19 Tonawanda, New York. 

20 The previous slide showed minimum doses

21 likely to cause specified cancers. What dose

22 conversion factors are you using? Are you using

23 BEIR V, VI, ICRP? What’s your –-

24 MR. KATZ: So the doses are estimated using a

25 risk estimation program that we’re using also for
23 

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1 the dose reconstruction program called NIOSH’s

2 Interactive RadioEpidemiologic Program. And it’s

3 a program that was fundamentally developed by the

4 National Cancer Institute, and then elaborated by

5 NIOSH to address the particular exposures and

6 circumstances of Department of Energy workers

7 versus atomic veterans, which is what it was

8 originally developed for.

9 MR. SEBASTIAN: What do you mean by atomic

10 veterans?

11 MR. KATZ: I’m sorry. Atomic veterans are a

12 group of Department of Defense veterans who were

13 exposed to nuclear weapons blasts. 

14 MR. SEBASTIAN: Oh, you're talking about

15 people who worked for the federal government?

16 MR. KATZ: They worked for the Department of

17 Defense, as a matter of fact, so they’re

18 veterans, they’re certified veterans. 

19 MR. SEBASTIAN: What about the private

20 contractors that were involved in the Manhattan

21 Project?

22 MR. KATZ: So, the –-

23 MR. SEBASTIAN: What about those employees,

24 like this gentleman is saying here, the private

25 contractors like Union Carbide?
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1 MR. KATZ: Right. Those contractors, those

2 individuals are covered under this law that we’re

3 talking about, EEOICPA.

4 MR. SEBASTIAN: I’m not -- no, I understand

5 the law, because OCAW, which is my international

6 union, helped to enact the law. We understand

7 the law. But you put restrictions on it by

8 saying they had to work under the Manhattan

9 Project, haven’t you?

10 MR. KATZ: Oh, let me just explain. The

11 Department of Health and Human Services has a

12 limited role in this all, which is –

13 MR. SEBASTIAN: Well, all right --

14 MR. KATZ: -- to do dose –

15 MR. SEBASTIAN: -- I'll object, but you can’t

16 answer that question then, can you?

17 MR. KATZ: Well, I don't know the details of

18 what you’re talking about, that’s absolutely

19 true.

20 MR. SEBASTIAN: Well, here’s the details, if

21 you want it, a real simple one. The date from

22 1940 to -50, if you were not in that area you're

23 not entitled to it. That’s what you're saying,

24 that’s what your people, the Department of Energy

25 workers making the rule, the Department of Labor
25 

NANCY LEE & ASSOCIATES

1 is saying. Because one of our employees was

2 denied that claim because he didn’t work,

3 apparently, on the Manhattan Project itself –-

4 MR. KATZ. I see.

5 MR. SEBASTIAN: -- although he worked on a

6 contaminated site. So we need to know before you

7 get into the technicalities who is involved in

8 this, because we understood that the law was

9 written that it wasn’t going to include -- it was

10 going to include the people that worked for the

11 private contractor not on the Manhattan Project

12 but in that contaminated site. Now I see Union

13 Carbide isn’t even on your list here.

14 MR. KATZ: They are on the list.

15 MR. SEBASTIAN: Not unless you put out –-

16 MR. KATZ: They are on the Ohio, the list for

17 the Ohio meeting that’s coming up.

18 MR. SEBASTIAN: What about here? What about

19 here in Tonawanda?

20 DR. NETON: I believe that’s in the fact

21 sheet, the update that -- there’s an update at

22 the back. I believe it lists the facilities that

23 are covered.

24 MR. SEBASTIAN: Then why are you denying

25 somebody a claim without going into the dose
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1 reconstruction or anything at all, without going

2 into their cancers --

3 MR. KATZ: Right.

4 MR. SEBASTIAN: -– only because from 1940 to

5 1950, if you don’t meet that criteria you're

6 denied that.

7 MR. KATZ: That sounds like a case -- the

8 Department of Labor, of course, makes these

9 decisions and is running this program, but –-

10 MR. SEBASTIAN: You can’t answer that, am I

11 correct, then?

12 MR. KATZ: But -- no, no. But what I was

13 going to say is that in the past -- EEOICPA was

14 passed in 2000, and in the following year they

15 made a number of amendments because they found a

16 number of problems, sort of like the problem it

17 sounds like you're describing. There were a

18 number of problems that they did fix the next

19 year in Congress. Because the Department of

20 Labor cannot on its own sort of go beyond the

21 bounds of the law, the parameters that the law

22 sets it, right? And this specifically sounds

23 like it may be another circumstance where

24 EEOICPA, the law –

25 MR. SEBASTIAN: The only circumstance -- you
27 

NANCY LEE & ASSOCIATES

1 have to understand, the people that worked on the

2 Manhattan Project are mostly all expired. We’re

3 talking about the people that worked on those

4 contaminated sites. 

5 MR. KATZ: Right.

6 MR. SEBASTIAN: Bethlehem Steel, Simonds, and

7 all the rest of them –-

8 MR. KATZ: I understand.

9 MR. SEBASTIAN: -- including Union Carbide,

10 afterwards were on a contaminated site. What we

11 need to know is why the law excludes them,

12 because you're saying it does.

13 MR. KATZ: And I’m not saying it does –-

14 DR. NETON: If I might –-

15 MR. KATZ: –- because I don’t even know the –

16 MR. SEBASTIAN: No, no.

17 DR. NETON: If I may –

18 MR. KATZ: No, no, no, because I don’t know

19 the details. 

20 DR. NETON: If I might interject. I think

21 we’re getting off the subject of Ted's

22 presentation. We can have time for this later.

23 MR. SEBASTIAN: Well, I’m not accusing. 

24 DR. NETON: Yeah.

25 MR. SEBASTIAN: I understand it. 
28 

NANCY LEE & ASSOCIATES

1 DR. NETON: Yeah.

2 MR. SEBASTIAN: What I’m saying is that when

3 you talk about technicalities, there’s a lot of

4 people here, including myself, that want to know

5 before you get into the technicalities if you can

6 answer these questions.

7 DR. NETON: Right. 

8 MR. SEBASTIAN: And I guess you can’t.

9 MR. KATZ: And it sounds like I can’t. I

10 cannot answer some of these questions.

11 MR. SEBASTIAN: I understand it, you're not

12 –-

13 DR. NETON: Well, yeah, I think –-

14 MR. SEBASTIAN: -- you can’t answer those

15 questions.

16 DR. NETON: -- once we get through Ted's

17 prepared remarks, I think we can take some time

18 later to discuss these other areas.

19 MR. SEBASTIAN: Will you be able to answer

20 those questions with any authority?

21 DR. NETON: I’m not exactly sure what you're

22 saying here, but --

23 MR. SEBASTIAN: Well, that’s easy.

24 DR. NETON: -- I think –-

25 MR. SEBASTIAN: It’s easy. I’m asking you
29 

NANCY LEE & ASSOCIATES

1 why are you putting a date of 1940 to 1950, and

2 saying anybody that’s not there that didn’t work

3 in Union Carbide from 1940 to 1950 is denied a

4 claim no matter what.

5 DR. NETON: I think that there is a residual

6 contamination study that NIOSH was tasked by

7 Congress to evaluate, and that we are actively

8 evaluating sites such as that to determine if

9 there was –-

10 MR. SEBASTIAN: You still don’t answer my --

11 look, I don’t mean to be abrasive, but you didn’t

12 answer the question about the date.

13 MR. KATZ: No, but –-

14 DR. NETON: I think the date was set by the

15 Department of Energy early on in the process

16 determining of when there was radioactive

17 material at the site and when there was an active

18 contract with the Department of Energy.

19 MR. SEBASTIAN: That’s what I’m saying --

20 DR. NETON: We’re -–

21 MR. SEBASTIAN: -- active contract. I

22 understand –-

23 DR. NETON: But listen me out. We’re

24 actively right now investigating those sites to

25 determine if those dates should be extended.
30 

NANCY LEE & ASSOCIATES

1 MR. SEBASTIAN: Thank you. I appreciate it.

2 DR. NETON: We are in that process right now.

3 So --

4 MR. SEBASTIAN: Okay. 

5 DR. NETON: Okay.

6 MR. KATZ: So we’re doing that –-

7 MR. SEBASTIAN: I apologize for –-

8 MR. KATZ: –- and we will be reporting to

9 Congress on that. And then it will be Congress

10 with this information that will be able to change

11 the law that will change -- or the Department of

12 Energy. But that’s how that will get fixed,

13 those kind of problems, we hope.

14 COURT REPORTER: Mr. Katz, could I please

15 have the gentleman’s name for the record?

16 DR. NETON: Yes.

17 MR. KATZ: I’m sorry, could you just tell me

18 your name, and I'll repeat into the mike.

19 MR. SEBASTIAN: I’m a former Union Carbide

20 employee. My name is Joe Sebastian. I’m an

21 international rep, retired and semi-retired,

22 working for PACE International, which was

23 formerly OCAW. 

24 And I don’t mean to inject in your program

25 that it’s not a valuable one. All I mean is that
31 

NANCY LEE & ASSOCIATES

1 our people here are very concerned about some of

2 the things that are coming out about dates. It

3 really, really is a –-

4 MR. KATZ: And that’s understandable.

5 MR. SEBASTIAN: Yes. It makes it absolutely

6 unnecessary for us to be here if that date

7 stands. 

8 MR. KATZ: And that’s why Congress tasked us

9 to do this study about residual contamination,

10 exactly to address that kind of problem.

11 MR. SEBASTIAN: Thank you very much.

12 MR. KATZ: So hopefully we'll serve you well

13 there, too.

14 MR. SEBASTIAN: Okay. Thank you. 

15 MR. KATZ: Okay, I’m not quite sure where I

16 was. I think I finished with what NIOSH will do

17 to evaluate, and it will prepare a report that

18 will be presented to the Board. 

19 What will happen next is this Advisory Board

20 that I told you about will take up the report

21 that we produced. And they may read the report

22 and the facts that we found and say, you’ve got

23 more work to do, NIOSH, go back and dig more,

24 whatever. But we'll go through a process with

25 the Board, and that will be a public meeting
32 

NANCY LEE & ASSOCIATES

1 which petitioners can participate in. And as a

2 result of that, the Board will come to decisions

3 and give advice to the Secretary of Health and

4 Human Services.

5 MR. SEBASTIAN: There’s one last question --

6 I appreciate that. Here’s one last question. 

7 MR. KATZ: Sure.

8 MR. SEBASTIAN: If in case you were to be

9 able to change that date, let’s say, with your

10 intervention, which we hope --

11 MR. KATZ: Right.

12 MR. SEBASTIAN: What would happen again to a

13 claim that was denied? Or should he then -- we

14 are asking this procedurally now -- a claim that

15 has been denied because of the date, should we

16 then put in a petition for a -- what do we call

17 it, for a review or something?

18 MR. KATZ: Well, my guess is if someone

19 submitted a claim and he was denied based on the

20 date, and the date gets changed as a result of

21 what we’re doing here, I would think the

22 Department of Labor would reactivate that claim,

23 because they have the right to at any time

24 reactivate a claim based on new information or

25 changing facts.
33 

NANCY LEE & ASSOCIATES

1 MR. SEBASTIAN: Or would it be beneficial to

2 the employee to put that appeal in? They have an

3 appeal process, I understand. Should they –-

4 MR. KATZ: But they won't even need to appeal

5 it at that point. If the date is changed,

6 Department of Labor, in all likelihood -–

7 MR. SEBASTIAN: You wouldn’t need to appeal.

8 MR. KATZ: -- is going to reopen the claim

9 and reconsider it as if it was just submitted.

10 MR. SEBASTIAN: Okay. 

11 MR. KATZ: That’s what I’m betting. I’m not

12 from the Department of Labor, but that’s in all

13 likelihood how they would operate. They wouldn’t

14 require you to resubmit the claim. 

15 Okay, so at the end of this process of

16 working with the Board, the Board will give

17 advice to the Secretary of Health and Human

18 Services as to whether a class or classes should

19 be added, and what that decision is based on. 

20 And an important point to make to you at this

21 point -- and you will see it in this slide -- we

22 say, definition of class or classes and whether

23 it should be added. The reason that it’s said

24 that way is because after we do a bunch of

25 research about a group of employees, a petition,
34 

NANCY LEE & ASSOCIATES

1 we may learn that in fact there is more than one,

2 even though the petition was submitted thinking -

3 - petitioner submitted thinking there’s this one

4 class, it may in fact be larger than the class

5 the petitioner realized. 

6 We also may find out that there are really

7 subgroups within that petition, that some classes

8 we have records for, some class, some parts of

9 the class we don’t have records on or records

10 for, in which case we would divide, in effect,

11 the petition into separate classes. So we may

12 build a class. It may be larger than what was

13 petitioned for, or it may be divided into

14 separate classes. There’s any number of

15 possibilities.

16 MR. KRIEGER: I’m failing to understand

17 “class.” What are you talking about?

18 MR. KATZ: By “class” I’m meaning a group of

19 workers who are similarly exposed and have a

20 similar situation in terms of the records that

21 are available to be able to estimate their doses.

22 MR. KRIEGER: Specific jobs that they did, or

23 overall -–

24 MR. KATZ: So it could –-

25 MR. KRIEGER: -- because some of these plants
35 

NANCY LEE & ASSOCIATES

1 like Union Carbide and Bethlehem Steel, Simonds

2 Saw, and some of these other sites in western --

3 I’ve got a whole page full of them.

4 MR. KATZ: Yes.

5 MR. KRIEGER: Those sites are all

6 contaminated, the whole site.

7 MR. KATZ: Yes, so let me explain.

8 MR. KRIEGER: Every piece of land out there

9 has got some –-

10 MR. KATZ: Right. So it could be –-

11 MR. KRIEGER: –- the last I heard –-

12 MR. KATZ: -- it could be –-

13 COURT REPORTER. I’m sorry, gentlemen, I’m

14 sorry.

15 DR. NETON: Excuse me, yeah –-

16 MR. KATZ: I’m sorry.

17 DR. NETON: Could you please state your name?

18 MR. KRIEGER: But -- my name -- she’s got it. 

19 Ralph Krieger. 

20 DR. NETON: Okay, thank you.

21 MR. KRIEGER: These sites were -- we’re not

22 talking about defined little areas. We’re

23 talking plants that were operational, people were

24 moving all over those plants.

25 MR. KATZ: Right. 
36 

NANCY LEE & ASSOCIATES

1 MR. KRIEGER: You're talking dose

2 reconstruction. That’s got my goat so bad, I

3 can’t tell you how much I rolled my dupper

4 (phonetic) on that one. I don't know how you're

5 going to do that. 

6 The Linde site, UF4, green salt, brown

7 oxides, black oxides, orange cake which was

8 dumped off in the yard, yellow cake was dumped

9 off in the yard. These areas were all worked in

10 by the workers. They were set-down areas. The

11 ground was contaminated because they dug wells on

12 Linde and injected into the wells. Now Battelle

13 has already been there. They’ve already done

14 their research. They found it in the ground

15 water and they found it on the surface dirt. 

16 Now how are you going to do a dose

17 reconstruction when the guys at like Linde and

18 other plants were moving around those plants,

19 different jobs over long periods of time? We’re

20 talking long, fifty years of this stuff laying

21 there, and these guys coming to work for forty

22 hours a week on the average, and being exposed to

23 the ionizing radiation. Not alpha, beta, but

24 gamma. Gamma. How are you going to show gamma?

25 MR. KATZ: So let me just answer you very
37 

NANCY LEE & ASSOCIATES

1 quickly –-

2 MR. KRIEGER: I just want, I just --

3 MR. KATZ: Yes. You’ve raised the question,

4 now let me explain. 

5 A petition may be a petition for an entire

6 site. We haven’t said that a petition could only

7 be for one group of workers. It could be for an

8 entire site.

9 MR. SEBASTIAN: Can a union petition for an

10 entire site?

11 MR. KATZ: Of course, a union or an

12 individual worker or a survivor can petition. It

13 can be for an entire site. Whatever it is, it

14 is. There’s no limitation on what --

15 MR. KRIEGER: I -- let me finish. I’ve got a

16 letter from Congressman Phelps (phonetic) that

17 deals with this issue.

18 MR. KATZ: But there’s no limitation in terms

19 of the scale of the petition, okay, and there’s

20 no -- and we understand that workers moved, moved

21 around the site, and so on. That may be a very

22 good reason to include all sorts of classes of

23 workers within a single petition.

24 MR. KRIEGER: They’re over there cleaning it

25 up –-
38 

NANCY LEE & ASSOCIATES

1 COURT REPORTER. I’m sorry, Mr. Krieger?

2 MR. KRIEGER: They started in 1994.

3 COURT REPORTER. I’m sorry, I didn’t hear Mr.

4 Krieger.

5 MR. SEBASTIAN: He said they’re still

6 cleaning it up.

7 MR. KATZ: Right, that’s right. They are

8 still cleaning the site.

9 MR. KRIEGER: Still cleaning it up.

10 MR. KATZ: Okay, so –-

11 MR. KRIEGER: Go ahead.

12 MR. TOBIAS: Can I --

13 DR. NETON: One more question, but I think we

14 just need to finish the --

15 MR. TOBIAS: Francis Tobias, ex Bethlehem

16 Steel worker, and a union representative and

17 management representative both over forty years’

18 time. 

19 I still feel -- my original question this

20 evening was about what groups this concerns. You

21 very clearly said it was the Special Cohort

22 group. I’m saying -- Ralph knows better than me;

23 I’ve talked to him and he’s a very good guy, very

24 helpful, he knows better than me -- my

25 understanding is the people that are here
39 

NANCY LEE & ASSOCIATES

1 represent special plants and contractors under

2 Department of Energy groups, not the Special

3 Cohort groups.

4 MR. KATZ: No.

5 MR. TOBIAS: Is that right? Am I confused?

6 MR. KATZ: No, here’s -- yeah, I think I

7 understand the confusion.

8 MR. TOBIAS: Okay. 

9 MR. KATZ: The law established certain groups

10 to be part of Special Exposure Cohort in the

11 beginning, but what we’re talking about here is

12 procedures to add to that group. And they can be

13 added from all these groups that you're talking

14 about.

15 MR. TOBIAS: Oh.

16 MR. KATZ: These can all be added to the –-

17 MR. TOBIAS: Oh, I –-

18 MR. KATZ: -- Special Exposure Cohort.

19 MR. TOBIAS: I guess you could have told me

20 that. That was my question originally.

21 MR. KATZ: Well, I –-

22 MR. TOBIAS: I was going to get up and leave,

23 because you said only Special Cohort group. We

24 don’t represent Special Cohort groups.

25 MR. KATZ: Well, you may in the future,
40 

NANCY LEE & ASSOCIATES

1 right, because –-

2 MR. TOBIAS: No --

3 MR. KATZ: –- we may be adding classes of

4 workers that you represent to the Special

5 Exposure Cohort.

6 MR. TOBIAS: I don’t –

7 MR. KATZ: That’s what -–

8 MR. TOBIAS: -- maybe. Okay. 

9 MR. KATZ: -- that’s what this is about,

10 actually.

11 MR. TOBIAS: Well, maybe I’m a little

12 confused.

13 MR. KATZ: This is about making decisions as

14 to whether we need to add this class –

15 MR. TOBIAS: Yeah, that’s --

16 MR. KATZ: -- that class --

17 MR. TOBIAS: Like Bethlehem Steel could become

18 –

19 MR. KATZ: Exactly –-

20 MR. TOBIAS: That could become a Special

21 Cohort –-

22 MR. KATZ: Union Carbide –-

23 COURT REPORTER: I’m sorry, gentlemen, but

24 one at a time.

25 MR. TOBIAS: Oh, yes.
41 

NANCY LEE & ASSOCIATES

1 DR. NETON: Yes, one, please, at a time.

2 MR. KATZ: I’m sorry.

3 MR. TOBIAS: Am I made to understand that

4 Bethlehem Steel or Simonds Saw or any other,

5 Linde, could become a Special Cohort group?

6 MR. SEBASTIAN: As a site.

7 MR. KATZ: They could become an additional

8 class within the Special Exposure Cohort, that’s

9 exactly true. 

10 MR. TOBIAS: Yes.

11 MR. KATZ: And that’s exactly what these

12 procedures are for --

13 MR. TOBIAS: Even though –-

14 MR. KATZ: -– for making decisions about

15 that.

16 MR. TOBIAS: I'm sorry, even though

17 originally they were all identified under what,

18 the Department of Energy?

19 DR. NETON: That’s correct.

20 MR. TOBIAS: Right?

21 DR. NETON: Right.

22 MR. KATZ: Exactly right.

23 MR. TOBIAS: Okay, thank you.

24 MR. KATZ: I’m sorry that wasn’t clear at the

25 outset.
42 

NANCY LEE & ASSOCIATES

1 MR. TOBIAS: Okay. 

2 MR. RAUCH: You know, I just -- I’m Jim

3 Rauch, again -- I just have a comment on this

4 business of dates. 

5 Ralph Krieger just pointed out the sites

6 still being cleaned up some sixty years later. 

7 That clean-up, by the way, is being undertaken by

8 the Army Corps of Engineers, which is part of the

9 U.S. Army, which is responsible, the direct

10 responsible party for the contamination in the

11 first place. 

12 As far as the dates go, 1940 to 1950 contract

13 years, 1996 and -7 are listed in the reply to a

14 letter of one of the claimants. 1996 and 1997

15 were years when the Department of Energy was

16 still conducting clean-up before Congress had

17 transferred the program, FUSRAP program, to Army

18 Corps of Engineers. They were doing interim

19 clean-up actions before a record of decision was

20 issued. 

21 These, in our opinion, were illegal actions,

22 first of all. Secondly, these clean-up

23 activities by DOE are now listed as covered, but

24 since Army Corps is on the site doing continuing

25 clean-up, any activities of people that are
43 

NANCY LEE & ASSOCIATES

1 contracted by Army Corps are not covered. This

2 is the trouble with this kind of bureaucracy. 

3 It’s simply somebody wrote down DOE, okay. 

4 The other thing is we’re always told when DOE

5 or Army Corps comes in and cleans up these sites

6 that they’re protecting the people so they won’t

7 be exposed. Whether that means the lead8 protective clothing, whatever, badges, whatever

9 to ensure that doses are kept de minimus, okay,

10 why aren’t ‘96 and ‘97 being covered? It seems

11 to me like some bureaucrat down in Washington

12 just said DOE contractor. Well, DOE was doing

13 clean-up at Linde in 1996, 1997. 

14 DR. NETON: Let me –

15 MR. RAUCH: Do you actually expect 1996,

16 1997, to have claimants for two years from

17 contractor, DOE contractors that are cleaning up

18 the site? Do you honestly, Dr. Katz?

19 MR. KATZ: Again, this is really completely

20 out of my sort of domain. To –-

21 MR. RAUCH: Will you acknowledge the idiotic

22 bureaucracy of this type of stuff?

23 DR. NETON: Well, I can answer part of that

24 question. Those dates are being re-evaluated. 

25 It was recognized six or eight months ago that
44 

NANCY LEE & ASSOCIATES

1 the dates needed to be re-evaluated and re2 established based on more firm criteria, such as

3 the presence of contamination, not just the

4 existence of a contract period with the

5 Department of Energy. So those are being re6 evaluated.

7 MR. RAUCH: I would point out that when the

8 press reports ‘96 and ‘97 are covered dates to

9 the public, the public is going to be concerned

10 that those people that were working on those

11 clean-ups were not protected. Were they or were

12 they not protected?

13 DR. NETON: I don't think really that’s the

14 issue. The reason that those ‘96, ‘97 dates are

15 covered, to my understanding, is that the

16 Department of Energy was on those sites, so it

17 became a DOE facility by the definition in the

18 Act itself. Therefore, if it is a DOE facility

19 it’s automatically covered. It’s not covered

20 because there was an endangerment to health,

21 necessarily. It’s covered because it fits the

22 definition of a DOE facility. So those interim

23 dates now are being re-evaluated, and they may be

24 added. I’m not saying they are, but there is a

25 re-analysis being done for those sites. 
45 

NANCY LEE & ASSOCIATES

1 MR. RAUCH: Can we assume that -- I’m

2 addressing Dr. Katz -- can we assume that --

3 would you assume that the activities being

4 conducted by Army Corps now, the workers are

5 protected as well as the Department of Energy?

6 DR. NETON: We’re not here to make that

7 judgment, really. I –

8 MR. RAUCH: Well, you’ve opened a can of

9 worms by putting those dates down. 

10 DR. NETON: Well –

11 MR. RAUCH: Some bureaucrat wrote down DOE

12 dates, ‘96, ‘97.

13 DR. NETON: That was in accordance with the

14 requirements of a definition of a DOE facility

15 within the Act. 

16 I think we are really getting way off. If we

17 could let Ted finish about three or four slides –

18 MR. RAUCH: Well, this is the silliness of

19 this type of legislation, that really isn’t

20 getting the help to the people that need it.

21 MR. SEBASTIAN: Just let me comment on your

22 answers.

23 MR. KATZ: Can you use the mike, please?

24 MR. SEBASTIAN: I’m sorry, okay. Just let me

25 -- I want to read this, or have you read it. I
46 

NANCY LEE & ASSOCIATES

1 think it’s better if you read it, because you’ll

2 see what we’re facing. Just read the last

3 paragraph here to the public out here, and see

4 what we’re faced with. You’ll understand why

5 we’re hollering. 

6 MR. KATZ: Okay, what am I reading, first of

7 all?

8 MR. SEBASTIAN: Read the last paragraph on

9 the –-

10 MR. KATZ: No, but let me explain –-

11 MR. SEBASTIAN: Explain.

12 MR. KATZ: Let me explain –

13 MR. SEBASTIAN: Right here.

14 MR. KATZ: Is this a claim? Is that what I’m

15 reading?

16 MR. SEBASTIAN: Yes, this is a claim. The

17 individual we’re talking about with dates --

18 MR. KATZ: Okay –-

19 MR. SEBASTIAN: -- forty to fifty, were set.

20 MR. KATZ: So this is –-

21 MR. SEBASTIAN: But not only that, look at

22 what you’re saying and what they are saying. He

23 didn’t work on the project. That’s why you

24 answered that incorrectly. It just amazes me. 

25 We get the –-
47 

NANCY LEE & ASSOCIATES

1 MR. KATZ: I’m not -- do you want to help me

2 here in which part –-

3 MR. SEBASTIAN: Read the last paragraph.

4 MR. KATZ: The last paragraph. 

5 (Reading) Roger J. Curtis is not entitled to

6 compensation.

7 Is that what I’m supposed to be reading?

8 MR. SEBASTIAN: Let me read it.

9 MR. KATZ: Just point to the paragraph and

10 I'll read it. I don't know which is --

11 MR. SEBASTIAN: I’m talking about this

12 paragraph here. 

13 (Reading) In order to receive benefits –-

14 MR. KATZ: Benefits. Let me read this,

15 because then it will be recorded. 

16 (Reading) In order to receive benefits under

17 EEOICPA, a claimant must show that –-

18 COURT REPORTER. I’m sorry, a little bit

19 slower, please.

20 MR. KATZ: I’m sorry. 

21 (Reading) In order to receive benefits under

22 EEOICPA, a claimant must show that he/she was

23 employed by a facility at a time when the

24 facility was under contract to the Department of

25 Energy for the purpose of providing goods and
48 

NANCY LEE & ASSOCIATES

1 services in connection with the production of

2 nuclear weapons. 

3 MR. SEBASTIAN: All right. 

4 MR. KATZ: And that’s –

5 MR. SEBASTIAN: See what our problem is?

6 MR. KATZ: -- what this discussion was just

7 about –

8 MR. SEBASTIAN: Right.

9 MR. KATZ: -- I think.

10 MR. KRIEGER: See what our problem is?

11 MR. KATZ: No, I do understand, and -–

12 DR. NETON: I believe we answered that

13 question, that those facilities, those covered

14 dates –-

15 MR. SEBASTIAN: All right. Well, those are

16 the concern of everybody here.

17 DR. NETON: But those covered dates are 

18 undergoing a re-evaluation at this time. 

19 I really think we need to finish up the

20 formal presentation, and then we can get more

21 into the questions. Otherwise I don't think

22 we’re going to --

23 MR. RAUCH: Okay, I'll just say the clean-up

24 is not production of nuclear weapons.

25 MR. KATZ: But this is --
49 

NANCY LEE & ASSOCIATES

1 MR. RAUCH: So whoever figured 1996 and 1997

2 as eligible years was incorrect. That was not

3 production of nuclear weapons.

4 DR. NETON: It doesn’t matter. 

5 MR. RAUCH: It was clean-up –-

6 DR. NETON: Clean-up facilities are also

7 covered. Even current day facilities under

8 clean-up are covered. Any facility that’s

9 operated under Department of Energy jurisdiction

10 is covered, even to this day. 

11 MR. RAUCH: Department of Energy owns the

12 Lake Ontario ordinance work site. It’s being

13 cleaned up by U.S. Army Corps of Engineers. It’s

14 their problem. 

15 DR. NETON: That I’m not certain.

16 MR. SEBASTIAN: You’ve just gone on record --

17 MR. RAUCH: Well, I'll tell you something. 

18 DOE is legally liable here for these sites,

19 legally liable. The Army Corps, you know the

20 Army Corps of Engineers initially contaminated

21 these sites. DOE is legally liable for these

22 sites. DOE is a renegade outfit. They’ve

23 operated illegally all along, and they show no

24 inkling of change. 

25 MR. FIGIEL: One more question, please.
50 

NANCY LEE & ASSOCIATES

1 DR. NETON: One more question, then I really

2 believe that we need to finish this.

3 MR. KATZ: Can you tell us who you are first,

4 before you -–

5 MR. FIGIEL: Yes, my name is John Figiel. We

6 have a claim, and the claim number is 2935. And

7 I don't know the current status of our claim, if

8 I should file for SEC cohort petition. So it’s

9 like I’m stuck between a rock and a hard place. 

10 I don't know if I should or if I shouldn’t,

11 because I don't know the status of the claim. 

12 MR. KATZ: But then I would understand it to

13 be still being adjudicated by the Department of

14 Labor, is that correct? They haven’t given you a

15 decision?

16 MR. FIGIEL: I haven’t had any –-

17 MR. KATZ: That’s right, in which case –-

18 MR. FIGIEL: –- communiqués on it, or

19 anything. I’m following it through the web site

20 and the claim numbers, and I understand that the

21 claim will be sent back to Cincinnati probably

22 this week because of the numbers of claims.

23 MR. KATZ: Right. So what’s happening in

24 cases like yours is –

25 MR. FIGIEL: I surmise that the dose
51 

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1 reconstruction would be difficult.

2 MR. KATZ: And that’s entirely possible. 

3 What we will do is attempt to do a dose

4 reconstruction. That’s the next step in the

5 process for you. And if, as I explained earlier,

6 if we are unable to do a dose reconstruction for

7 you, that would be the time when we will let you

8 know that you indeed should file a petition.

9 MR. FIGIEL: So there’s no deadline on filing

10 a petition, are you saying that?

11 MR. KATZ: There’s no limitation for you on

12 filing a petition, that’s right. You can file a

13 petition at any time into the future. But what

14 I’m saying is that when we determine whether we

15 can do a dose reconstruction or not for you, that

16 would be the time for you then to make a decision

17 about that. Because if we can do a dose

18 reconstruction, then you wouldn’t file to be part

19 of the Special Exposure Cohort. 

20 Is that clear to you?

21 MR. FIGIEL: I don't know when that, any --

22 MR. KATZ: So you will, in other words, you

23 will get on –-

24 MR. FIGIEL: -- communication –

25 COURT REPORTER. I’m sorry, I’m sorry.
52 

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1 MR. KATZ: I’m sorry.

2 MR. FIGIEL: I don't know when we would get

3 any information that we are in that position –

4 MR. KATZ: Right.

5 MR. FIGIEL: -- and then for me to make our

6 next move to file a claim under Special Cohort.

7 MR. KATZ: I’m sorry, so let me explain that. 

8 You will be -- there’s a process for doing a dose

9 reconstruction. You will be getting information

10 from NIOSH on how that works, and a major element

11 of that process is for us to conduct a technical

12 interview with you about your work. So you will

13 have an interview with us so we can learn as much

14 as we can from you about your circumstances of

15 exposure and so on. We'll be collecting, and

16 we'll probably -- we will be collecting data from

17 the Department of Energy related to your claim

18 and so on, and we'll be attempting to do a dose

19 reconstruction. And at the end of that process,

20 if we cannot do a dose reconstruction you will be

21 notified of that. If we do successfully complete

22 a dose reconstruction you’ll be notified about

23 that as well. You’ll get a complete report in

24 either case. So you will know –-

25 MR. FIGIEL: So you're saying -–
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1 MR. KATZ: You will know when the situation

2 arises, if it does, that we can’t do a dose

3 reconstruction, because we will notify you. And

4 then at that point, if we can’t do a dose

5 reconstruction we will encourage you to file a

6 petition. So you will get that guidance.

7 MR. FIGIEL: I understand your answer. But

8 there seems to be such a log jam in Cincinnati on

9 phone interviews to get more information to try

10 to clear up dose reconstructions.

11 MR. KATZ: Yes.

12 MR. FIGIEL: There’s a huge log jam there.

13 MR. KATZ: That’s true.

14 MR. FIGIEL: Can you answer?

15 MR. KATZ: Let -–

16 MR. FIGIEL: Why is that?

17 MR. KATZ: Let me explain that. Yes, I'll be

18 glad to. 

19 Right now we are doing the dose

20 reconstructions just using in-house staff, health

21 physicists in-house, which is extremely limiting. 

22 The volume of claims we’re talking about here is

23 -- for any kind of dose reconstruction program --

24 is totally unprecedented in this country, in the

25 world for that matter. 
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1 And we can’t do it with our little staff we

2 have in-house, which is why we’re contracting to

3 get external help to do these dose

4 reconstructions. And we’re at the very end of

5 that contractual process of putting out a

6 contract, at which point we'll have a large

7 amount of help to be able to deal with these

8 claims on a timely basis. 

9 But you're absolutely right, at this point

10 we’re dealing with just a trickle compared to the

11 -- we have 5,000 claims in-house about right now,

12 and again, like I said, a handful of people to do

13 dose reconstructions. So you can imagine the

14 problem there. But that’s why we’ve been working

15 very hard to get a contract out to be able to get

16 help on this. 

17 Okay, let me -- why don’t I continue on a

18 little bit, at least, and then you can ask more

19 questions.

20 The next step in the process, after the Board

21 advises HHS as to whether to add a class to the

22 cohort or more or deny, HHS will come up with a

23 recommended decision. And it will notify the

24 petitioners of the decision, and if it’s an

25 adverse decision for the petitioners the
55 

NANCY LEE & ASSOCIATES

1 petitioners will have thirty days to contest the

2 recommendation of the Secretary of HHS. And

3 after that is resolved, those cases, HHS will

4 report final decisions to petitioners, and if

5 they’re positive to Congress. 

6 Congress then has 180 days to expedite or

7 reverse the decision. Congress, as I mentioned

8 earlier, built in this period, this window, in

9 which they would have an opportunity to review

10 our decisions to add a class to the cohort. 

11 MR. SEBASTIAN: I just –-

12 MR. KATZ: And let me just -- let me just

13 complete the thought, though, please.

14 MR. SEBASTIAN: I was thinking about number

15 three, report the final decision. You say that’s

16 a final decision, but Congress can overrule it?

17 MR. KATZ: That’s exactly true. This is a

18 little strange, but this is how Congress wrote

19 the law, in effect. So Congress said that

20 despite the fact that the President -- or now it

21 has been delegated to the Secretary of HHS --

22 gets to make these final decisions, Congress

23 wants an opportunity to review those decisions. 

24 And so they can do two things. They can move

25 it along, which I think is a more likely scenario
56 

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1 for Congress if you consider the circumstances. 

2 It’s more likely that if they have the

3 opportunity they would expedite the decision so

4 it would become effective sooner than 180 days. 

5 People have cancer, and 180 days is a long time. 

6 But they obviously have the right, because they

7 wrote it into the law giving themselves the

8 right, to reverse a decision that the Secretary

9 makes to add a class to the cohort.

10 MR. SEBASTIAN: Yeah, I --

11 MR. KATZ: That’s the law –-

12 MR. SEBASTIAN: I understand.

13 MR. KATZ: That’s just the law. 

14 And then once that 180 days expires, assuming

15 Congress hasn’t acted earlier to expedite it or

16 to reverse it, then HHS would work to get the

17 word out to all members it can notify about the

18 results, all members of the class, that the class

19 was added. 

20 Now the Rule also includes a provision for

21 cancelling a cohort addition down the road. And

22 this provision is included in the rule to deal

23 with the circumstance where we unearth a bunch of

24 records that allow us to do dose reconstructions

25 for individuals at a site. So at that point, if
57 

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1 we did unearth that information, we’d go through

2 a process much like considering the petition,

3 that would be open to the public and so on. 

4 And at the end of that line, if we determine

5 that these records will work for doing dose

6 reconstructions, then from that point on that

7 class, or part of that class, whatever the

8 reality might be, would be removed from the

9 Special Exposure Cohort. They would be treated

10 as other cancer claimants under EEOICPA, and they

11 would receive dose reconstructions. 

12 Now when is this petition process going to be

13 in place? When are you going to be able to

14 petition? It’s unlikely that you’ll be able to

15 petition before January of 2003. What has to

16 happen between now and then is we need public

17 comments on the proposed rule that we put out. 

18 Because it is not an effective rule we can’t

19 operate by it. And we will then have to rewrite

20 the rule based on what we learn from this, from

21 the public. And then it needs to be approved

22 through all levels, as you can imagine, of

23 government. And at that point it will be

24 published, then, and we will be able to receive

25 petitions. 
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1 Just a couple of final points. I have the

2 sense that these are perhaps unnecessary in this

3 case for this group here, but if you have a

4 cancer, someone has a cancer, is a survivor of an

5 employee who had a cancer, they should be filing

6 a claim with DOL now. They shouldn’t be awaiting

7 these procedures as a regular cancer claimant. 

8 And as I have explained, the advantages, you file

9 a claim now, we'll attempt to do a dose

10 reconstruction. If we can’t do a dose

11 reconstruction that already makes your case for

12 your petition, and then there’s really no more

13 work for you to do in terms of petitioning at

14 that point. So it makes a lot of sense to file

15 your claim now, and not await these procedures. 

16 And the last point is that we would like your

17 comments on this, on these procedures. 

18 Thank you. Thank you for listening to me. 

19 And now we'll just carry on with questions.

20 COURT REPORTER: Just before we carry on with

21 questions, if I may, just for one second. 

22 MR. KATZ: Again, can you just identify

23 yourself each time you speak.

24 MR. TOBIAS: Yes. My name is Francis Tobias.

25 I asked some questions before, and I thank you
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1 for your presentation. I think after we cleared

2 the air a little bit, everybody understood a

3 little better where you were going. 

4 I did have some questions that I had written

5 down, and you touched on some of them. I think

6 maybe I'll clear the air. You might understand

7 it, like we represent people from Bethlehem

8 Steel. If you cannot do the dose reconstruction

9 for whatever reason, we automatically fall into

10 the Special Cohort group?

11 MR. KATZ: If we cannot do the dose

12 reconstructions, we automatically consider your

13 petition. We will encourage you to petition, and

14 you'll get a full evaluation. And if you

15 remember the two requirements for a petition to

16 actually be approved, one of those requirements

17 is that we can’t do a dose reconstruction –-

18 MR. TOBIAS: Right.

19 MR. KATZ: So you know you’ve already met

20 that first hurdle. And the only question about

21 that will be if an individual tried to get a dose

22 reconstruction and couldn’t get a dose

23 reconstruction, the only question will be how

24 many other individuals within that work site

25 facility, whatever, are in the same shoes as that
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1 individual? So that is something that will have

2 to be resolved. But that will guarantee that we

3 will evaluate that petition. There’s really --

4 that’s the important point to make.

5 MR. TOBIAS: Thank you. And I have four or

6 five questions. I don't want to hold anybody

7 else up, but I'll make them quick. 

8 Where will they -- to do the dose

9 reconstruction, where are you going to get this

10 information? If you're first required to do it,

11 where is it going to come from? 

12 MR. KATZ: So –-

13 MR. TOBIAS: Bethlehem Steel, or –-

14 MR. KATZ: Yes. It’s going to come from

15 Bethlehem Steel in this case, if it’s Bethlehem

16 Steel. It’s going to come from the Department of

17 Energy, which had contracts with Bethlehem Steel,

18 which will have information in it. And DOE will

19 have other information, potentially –

20 MR. TOBIAS: Okay. 

21 MR. KATZ: -- about what operated there. It

22 will come from workers who worked at Bethlehem

23 Steel and can tell us about the conditions of

24 work, and so on. It will come from all possible

25 sources.
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1 MR. TOBIAS: Right.

2 MR. KATZ: If anyone had done a health study,

3 that might serve as a source as well.

4 MR. TOBIAS: Thank you.

5 MR. KRIEGER: If I can interrupt this

6 gentleman –-

7 MR. KATZ: Could you –

8 MR. KRIEGER: –- for just one second?

9 MR. KATZ: But can you please use the mike, 

10 just –-

11 MR. KRIEGER: If I –-

12 MR. TOBIAS: Go ahead, Ralph.

13 MR. KATZ: It’s just very important for the

14 recording that you use the mike and identify

15 yourself each time you speak.

16 MR. KRIEGER: If I can interrupt the

17 gentleman for one second. I was at a meeting

18 with NIOSH, and -- not NIOSH, but the DOL, and

19 Bethlehem Steel people were there. One of the

20 things that they brought up that was most

21 interesting was not only did the work that sent

22 over there and done on weekends, and then cleaned

23 up so nobody would know what was going on because

24 it was a top secret project. But years after

25 that, as these plants around this area got tore
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1 down, that steel and material that was

2 contaminated, nobody back then was checking it. 

3 That went to the steel mills.

4 COURT REPORTER: I’m sorry, that went to –

5 MR. KRIEGER: How much of that material, or

6 was there any monitoring ever done about the

7 scrap material that was going in there and being

8 melted down in the blast furnaces that was left

9 over from these other plants? Thank you.

10 DR. NETON: Steel mills.

11 MR. KATZ: I’m sorry, the piece you missed is

12 that the steel went to the steel mills from these

13 facilities, is what he said. 

14 MR. KRIEGER: Yes, it was.

15 MR. TOBIAS: Okay, thank you, Ralph. 

16 MR. KATZ: Yes.

17 MR. TOBIAS: My next question is has a

18 contract -- I think you did say you're finally

19 getting some scientists to help you, and if you

20 are, are they under contract? Is this work being

21 started?

22 MR. KATZ: This contract is -- we’re in the

23 final stages of awarding the contract right now. 

24 So we’re –-

25 DR. NETON: I can address that. We have
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1 received the best and final offers from the

2 bidders who are still in the competitive range,

3 and we are in the process of evaluating them

4 right now. We hope to have that evaluation

5 process done in the next several weeks, and then

6 we would undergo contract negotiations. I’m not

7 certain exactly how long those negotiations might

8 take.

9 MR. TOBIAS: Oh, boy. Okay, thank you. 

10 My next question is the phone interviews that

11 we all keep hearing about, and I don't know, but

12 have they started? If not, when will they start? 

13 For instance, when can I expect a phone

14 interview, that kind of thing? Can you comment

15 on that?

16 DR. NETON: Yeah, we’ve done a number of

17 phone interviews. I believe we have probably

18 done somewhere round 130 thus far. We’re doing

19 them based on -- as we obtain enough sufficient

20 information to proceed with the dose

21 reconstruction. We believe it’s important or

22 helpful to have the dose information in hand for

23 the health physicist to review it prior to the

24 phone call, so that we can do some checking. So

25 that has been our criteria thus far.
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1 MR. TOBIAS: Can you explain a little about

2 the format of that phone interview?

3 DR. NETON: The format elicits some fairly

4 detailed responses to what types of exposure the

5 claimant had worked with in his employment, what

6 radioactive materials were present, the presence

7 of protected measures, equipment, monitoring

8 devices, bioassay sampling, that sort of thing. 

9 Prior to the interview being conducted we do

10 send out a letter that includes a synopsis of the

11 questions that will be asked so that the person

12 can prepare.

13 MR. TOBIAS: Okay. 

14 DR. NETON: And I believe we at least allow,

15 like to allow several weeks for the claimant to

16 review that and refresh their mind, and then we

17 schedule a phone call at their convenience.

18 MR. TOBIAS: Well, thank you, thank you. 

19 Your answers are very helpful. 

20 In relation to that phone call or the follow21 up -- or the prior letter, can statements from

22 eye witnesses, maybe like in our case somebody

23 that worked in 1949 or -50, just as a witness to

24 the conditions that took place at that time, can

25 they be part of that phone interview?
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1 DR. NETON: Oh, yes, that’s actually part of

2 the interview process.

3 MR. TOBIAS: Oh, okay.

4 DR. NETON: One of the last questions is can

5 you provide us names of co-workers –

6 MR. TOBIAS: Oh.

7 DR. NETON: -- who can help fill in gaps in

8 the information. In particular, that’s important

9 to us in cases of where there are survivors, and

10 particularly the spouses are pretty unaware –-

11 MR. TOBIAS: So I –-

12 DR. NETON: -- typically unaware.

13 MR. TOBIAS: So I should wait, then, until

14 the call comes, or the letter, before I -- I have

15 a guy that is a witness.

16 DR. NETON: Yes.

17 MR. TOBIAS: Should I get a signed statement,

18 affidavit or –-

19 DR. NETON: No, no. No affidavit is

20 required.

21 MR. TOBIAS: Okay. 

22 DR. NETON: I have been reminded that the

23 interview question format is on our web site, if

24 you have availability to the web.

25 MR. TOBIAS: Oh, okay. 
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1 DR. NETON: The OCAS web site. So you don’t

2 need to wait –-

3 MR. TOBIAS: Right.

4 DR. NETON: -- for our letter to start

5 looking up those questions. 

6 MR. TOBIAS: Oh, thank you. I think I’m

7 almost done. 

8 Oh, one final question, I think. The

9 original Act, has this been changed -- or Ralph,

10 maybe you have some information on this too -- to

11 include some questions about smoking? I heard

12 this from someone -- I don't know who -- and I

13 was surprised, because I attended all the

14 meetings, and I’ve never heard this before. But

15 can you comment on that?

16 MR. KATZ: Yes. Yes, the original Act

17 actually addresses smoking. It wasn’t changed

18 to. That was in the original Act passed in 2000. 

19 And what it said was in effect that you were to

20 consider other factors, such as smoking, in

21 determining probability of causation for cancer

22 claims. 

23 MR. TOBIAS: Is that in the questionnaire,

24 the questionnaire that is on the web site?

25 DR. NETON: No, smoking history is not
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1 collected by NIOSH. That would be collected by

2 the Department of Labor.

3 MR. TOBIAS: Oh.

4 DR. NETON: It’s only relevant for claims

5 that are filed for lung cancer. No other organ

6 sites are affected by the smoking history –-

7 MR. TOBIAS: Okay. 

8 DR. NETON: -- profile.

9 MR. TOBIAS: Well, thank you very much.

10 MR. SEBASTIAN: I have a question. We got a

11 compensation case in New York State that we lost

12 because the type of cancer that the individual

13 had that we claimed was caused from the nuclear

14 fallout was not considered the type of cancer

15 that you would get from this in New York State

16 now. However, your statute now makes that type

17 of cancer a possibility that we get that now. So

18 that claim from Compensation that was denied --

19 unjustly, as a matter of fact -- but that

20 wouldn’t have anything to do with your claim

21 here, would it? If this individual’s wife were

22 to put in a claim under the federal program?

23 DR. NETON: No. The person, I believe, if

24 they worked at a covered facility –-

25 MR. SEBASTIAN: We’re talking about lymphoma
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1 cancer, I'll just tell you what it is, okay.

2 DR. NETON: A lymphoma, yeah, I believe it

3 would be covered. Well, it’s a covered cancer,

4 providing the person had worked at a covered

5 facility.

6 MR. SEBASTIAN: Well, I understand everything

7 else. But I was just wondering if that claim

8 from compensation in New York State, denial,

9 would interfere here?

10 MR. KATZ: No. So the claim from New York

11 will not affect the claim at all, the federal

12 claim that they would be filing. 

13 Moreover, I just would just note for you that

14 there is this additional part of EEOICPA, this

15 law, that requires the Department of Energy to

16 provide a worker advocacy program for claims to

17 state workers compensation programs. And you can

18 get more information from the Department of

19 Energy, but what they have done is set up -- and

20 actually HHS appointed physician panels to help

21 determine whether claims, those claims for state

22 workers compensation programs, whether those

23 illnesses arose from exposure to toxic substances

24 at the work site, radiation sources being

25 included. So –-
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1 DR. NETON: But not cancer.

2 MR. KATZ: So -- yes, no, cancer claims as

3 well. Yeah. So in a case like that, they may be

4 able to go back to the state, having gone through

5 this Department of Energy worker advocacy program

6 and gotten a determination from a physician panel

7 about their cancer, they may be able to go back

8 to the state and file again for New York for

9 compensation, separate from this federal program.

10 This is a state program, but the Department of

11 Energy -- it was established under the same law,

12 and the Department of Energy operates it. It has

13 a new office to operate this program.

14 MR. SEBASTIAN: Thank you. 

15 MR. GALUS: Hi, I’m Tim Galus. My father was

16 an employee at Union Carbide. He died in 1979,

17 after 38 years at Linde, of lung cancer. I’ve

18 got four questions here. 

19 One is regarding the original sites that are

20 in the cohort right now, the gaseous diffusion

21 plants, what was special about those sites that

22 got them into this cohort right away that doesn’t

23 include Linde and places like that that we’re

24 talking about now?

25 MR. KATZ: So the answer to that question is
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1 Congress decided that those sites would be part

2 of the cohort.

3 MR. GALUS: I see.

4 MR. KATZ: So it’s very hard for me to answer

5 you in terms of exactly what thinking Congress

6 went through, because there’s really not much of

7 a legislative record on how they made those

8 decisions. But this was a Congressional

9 decision, which is very different from what an

10 executive agency, part of the administration, can

11 do in adding groups to the cohort.

12 MR. GALUS: Because we don’t know of any

13 generic dose reconstructions or work that was

14 done at these sites?

15 MR. KATZ: Well, and -- 

16 DR. NETON: I think at the three gaseous

17 diffusion plants there was the presence of

18 residual contamination in the uranium, things

19 like plutonium and neptunium in the uranium, that

20 was determined to have been unmonitored in that

21 work force, so that it would have been difficult

22 to reconstruct their doses because they were not

23 monitored for that. I believe that was the

24 driving force behind that originally. Now how

25 that all played out in the Act, in adding the
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1 SEC, I’m not sure. And Amchitka Island, I really

2 don’t know the history behind that.

3 MR. GALUS: Okay, well the problem I have

4 with that is what you just described is the sites

5 we’re here talking about right now. We know

6 there’s residual radiation present at these

7 sites, but yet we’re not in this cohort yet. 

8 Now my next question was I know through one -

9 - there’s one path to start a petition to get

10 into the cohort, and that’s after we hear from

11 NIOSH that a dose reconstruction cannot be done. 

12 How long before NIOSH decides that they can’t do

13 this dose reconstruction?

14 DR. NETON: That’s quite variable, depending

15 upon the level of detailed information that we

16 can find. We are just scratching the surface

17 right now, identifying Atomic Weapons Employers

18 data. As you can imagine, it was kept by private

19 companies, not by the Department of Energy

20 contractors, so that it is more difficult to come

21 by. But I can’t give you a definitive answer on

22 that right now.

23 MR. GALUS: I understand about the thirty

24 days to appeal the petition, I understand about

25 the 180 days before Congress. What I’m trying to
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1 do is get a handle on what’s a realistic estimate

2 of when these people can actually expect to

3 receive an reward. 

4 DR. NETON: Well, awards have been -- well,

5 NIOSH does not make awards. We do dose

6 reconstructions. But we have forwarded completed

7 dose reconstructions over to the Department of

8 Labor already, so claims are moving through the

9 system, admittedly slowly at this time because

10 our technical staff is limited. But as we bring

11 on board this contractor, which will

12 substantially increase our ability to process

13 these claims -- we have required our contractor

14 to bid as if they could perform 8,000 dose

15 reconstructions in the next calendar year. We

16 have about fifty five, almost six thousand claims

17 in-house right now. So we hope to eliminate the

18 backlog fairly quickly.

19 MR. GALUS: Well, I’m guessing, though, that

20 we’re out into a year and a half, then, for some

21 of these claims. My father was diagnosed with

22 lung cancer in May, and he was dead seven months

23 later. Someone who wanted to file a claim now

24 wouldn’t be alive long enough to collect. That’s

25 what it looks like.
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1 MR. KATZ: Yes, this is an extremely

2 disturbing, as you can imagine, situation to us

3 as well, which is that the start-up requirements

4 for this program are large. It’s an extremely

5 complex, difficult program. We have the records

6 retrieval business and so on. So we find this

7 very disturbing ourselves, on the other end of

8 the stick here.

9 MR. GALUS: I’ve got two more questions. You

10 mentioned cancellation of a cohort in the event

11 that records are found where you decide you can

12 do dose reconstructions. Is that a retroactive

13 change? Say claims are awarded, and then you

14 discover the radiation wasn’t as bad as you

15 thought it was. Do these people give their money

16 back?

17 MR. KATZ: Do they give them back their money

18 back? The Department of Labor -- this is sort of

19 way out of our field for how that gets handled,

20 and I’m not even certain how much the Department

21 of Labor has considered how to address those

22 circumstances. But it would certainly affect

23 prospectively from the point we cancel the class,

24 or part of the class, as being part of the

25 cohort. From that point forward, the rest of the
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1 people who hadn’t filed claims already and been

2 compensated, they would then be regular cancer

3 claimants under EEOICPA.

4 MR. GALUS: Okay, well I suspect my last

5 question, then, is probably outside the scope of

6 what you are here to talk about, but I’d like to

7 ask it anyway. 

8 We did receive a letter from the Department

9 of Labor asking for smoking history, and they

10 only asked for three categories: Non-smoker,

11 former smoker, or current smoker. Do you know

12 how those criteria are going to be used in

13 conjunction with the dose reconstructions? If

14 he’s a current smoker or former smoker, is he

15 automatically denied?

16 MR. KATZ: I’m sorry, did he die of lung

17 cancer?

18 MR. GALUS: Yes, sir.

19 MR. KATZ: So what that means, how that will

20 be used is the smoking will be used in

21 determining the probability that his lung cancer

22 was caused by his radiation exposures. As to

23 whether the fact he was a smoker, whether that

24 knocks him out of being compensated depends on

25 how much radiation he was exposed to, though.
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1 MR. GALUS: He was there 38 years, cutting –

2 MR. KATZ: Right.

3 MR. GALUS: A long time.

4 MR. KATZ: No, but -- just the point I’m

5 making is it depends on the radiation dose. The

6 smoking affects the probability of causation, but

7 it’s not the sole determinant. It’s just one

8 element that’s considered within determining

9 probability of causation. 

10 MR. GALUS: Okay. 

11 MR. KRIEGER: Will the gentleman yield the

12 floor for a second?

13 MR. GALUS: That was my last question. I’ll

14 yield to --

15 MR. KRIEGER: On the issue of smoking, it’s

16 amazing. It’s absolutely amazing that the

17 government comes up with this smoking issue. Do

18 you know what was in the World War II C-rations

19 that was issued to every serviceman? Cigarettes. 

20 Do you know what the Red Cross did during the

21 war, all the wars, basically? What did they do? 

22 They issued cigarettes to those people. And now

23 we’re dealing with, a lot of these places, with

24 second-hand smoke, which is now coming up with an

25 issue that non-smokers it didn’t make any
76 

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1 difference, because they were getting second-hand

2 smoke. Smoking is not an issue here. 

3 The issue is clear, absolutely clear-cut. 

4 The site was contaminated with nuclear material,

5 and that’s what we’re dealing with. We’re not

6 dealing with mouses running around floors or

7 anything else. We’re dealing with fissionable

8 material that was not contained, that is out in

9 the atmosphere, out in the workplace, and the

10 workers being exposed to it without being

11 monitored. That’s the issue. Let’s not cloud it

12 with the smoking issue. That really gets my

13 goat.

14 DR. NETON: I just would like to mention one

15 thing. We’ve discussed several things related to

16 the Department of Labor this evening, and I do

17 want to point out for the record that the

18 Department of Labor had a representative

19 scheduled to be here to help address some of

20 these questions this evening, but their plane was

21 grounded in Washington, and couldn’t make it in

22 time for the meeting. So just so we are aware of

23 that.

24 MR. TOBIAS: Francis Tobias, once again. 

25 About the claims, what claims are being paid,
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1 have any been paid to the Department of Energy

2 workers?

3 DR. NETON: I’m not aware specifically how

4 the payments have been made, but –-

5 MR. TOBIAS: Well, I mean in that category.

6 There’s four categories, right, or five? 

7 MR. KATZ: You mean the claims for Special

8 Exposure Cohort members, current? Special

9 Exposure Cohort members? 

10 MR. KRIEGER: Oh, those, yeah.

11 MR. KATZ: Is that the four groups you’re

12 talking about?

13 MR. TOBIAS: No, I’m talking about the

14 $150,000 dollar payment.

15 MR. KATZ: Yes. No, the –-

16 MR. TOBIAS: Did any of those -- now there’s

17 different groups, Atomic Energy Workers,

18 Department of -- how many groups are there?

19 MR. KATZ: Yes, right. A large number of

20 claims have been paid, yes. 

21 MR. TOBIAS: In what groups?

22 DR. NETON: Special Exposure Cohorts.

23 MR. KATZ: To Special Exposure Cohort.

24 MR. TOBIAS: Okay. 

25 MR. KATZ: To people who were covered under
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1 RECA, which is the Radiation Exposure

2 Compensation Act.

3 MR. TOBIAS: Okay. 

4 MR. KATZ: This is people who were doing –-

5 MR. TOBIAS: Right.

6 MR. KATZ: -- uranium mining and milling.

7 MR. TOBIAS: Okay. 

8 MR. KATZ: And they were already compensated,

9 but this law allowed them to get an additional

10 $50,000 dollars to have parity between people

11 from -- Atomic veterans, in effect -- not atomic

12 -- uranium miners and millers, and these groups

13 under EEOICPA. People with beryllium disease

14 have been compensated. I don’t know all the

15 details, and I don't know the numbers. That’s

16 something the Department of Labor person would

17 have, would have told you about if she had made

18 it here. 

19 MR. TOBIAS: Okay. Because I know our plants

20 are covered under Department of Energy

21 facilities. And that was my question, was there

22 any payments made to employees from those, that

23 particular group?

24 **DR. NETON: We have completed dose

25 reconstructions and forwarded them to the
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1 Department of Labor for Department of Energy

2 facilities, and –-

3 MR. TOBIAS: Oh, I see.

4 DR. NETON: And we don’t make the final

5 determination, but I suspect that some of those

6 claims would have been compensated. 

7 MR. TOBIAS: Okay. I –-

8 DR. NETON: We don’t have knowledge of how

9 the –-

10 MR. TOBIAS: Yes. A follow-up question; I

11 appreciate your answer. 

12 Was the dose reconstruction made for some

13 plants, or all plants? You said you did some

14 dose reconstructions and forwarded that to DOE. 

15 DR. NETON: Right. These are for

16 individuals, individual claimants.

17 MR. TOBIAS: Oh, for –

18 DR. NETON: Yeah. We have not done anything

19 with the Special Exposure Cohort.

20 MR. TOBIAS: Individual claimants under the

21 Department of Energy –-

22 DR. NETON: Energy facilities.

23 MR. TOBIAS: -- facilities.

24 DR. NETON: That’s correct.

25 MR. TOBIAS: Okay. 
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1 DR. NETON: No Atomic Weapons Employer

2 facilities yet, thus far, have completed dose

3 reconstructions.

4 MR. TOBIAS: Okay. Thank you.

5 MR. RAUCH: All right, Jim Rauch. I’m with a

6 citizens group called FACTS, For A Clean

7 Tonawanda Site, which formed in 1994 by Linde

8 workers –-

9 MR. KATZ: Excuse me, the recorder is just

10 having a hard time understanding exactly what you

11 said as to your affiliation. If you could repeat

12 it again.

13 MR. RAUCH: FACTS, For A Clean Tonawanda

14 Site, a citizen group was formed in 1994 around

15 the clean-up of the Manhattan Project site in

16 Tonawanda, New York. 

17 I’m going to speak mostly to the Linde site,

18 but I’d like to just comment, because there are

19 people here from Bethlehem. I’m a pharmacist,

20 and I’ve been dealing with nuclear issues since

21 the eighties -- the Niagara Falls storage site in

22 Lewiston, New York, West Valley site, and the

23 Tonawanda site mainly. I’m quite experienced in

24 this area. 

25 I’m appalled by the lies the government has
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1 come forward with repeatedly, and specifically

2 the Department of Energy. That was why I made

3 the inflammatory earlier remarks. There’s very

4 little credibility here with the Department of

5 Energy, very little credibility with the federal

6 government in general. I, myself, see these

7 agencies working hand in hand to really frustrate

8 legitimate claims. 

9 With regard to Bethlehem, I was approached by

10 a woman whose father died there, and she sought

11 information from eight federal agencies on his

12 exposure. She sent me some of the data that he

13 obtained. That data showed -- it was air

14 monitoring data -- that showed exposure to

15 uranium at levels 300 times the 1992 standard for

16 exposure in the United States. She wanted my

17 opinion on whether to -- was it worth bothering

18 filing a claim or not. She had been given the

19 runaround by getting information from these

20 agencies. Now it has been glibly stated that

21 you’ll get this information from the contractor. 

22 Well, our experience has been just the

23 opposite. You have to go to federal court to get

24 information that the departments have, the

25 Department of Energy has, and won’t give to the
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NANCY LEE & ASSOCIATES

1 public. We had to go to federal court to get the

2 contracts, the Manhattan Project contracts,

3 between the Linde Air Products Company and the

4 Manhattan Project, Army Corps of Engineers, the

5 federal government contracts from the forties. 

6 We were lied to by the Department of Energy

7 representatives. They were representing -- that

8 were representatives for site clean-up that said

9 the Department of Energy had no title to that

10 material that was contaminating the site,

11 residual contamination. The contracts state

12 clearly that the title remains with the federal

13 government. 

14 So all this while, while we are going through

15 clean-up decisions over here in Tonawanda,

16 Department of Energy employees, Ronald Kirk, site

17 manager, lied to the public repeatedly and said

18 that they had no title to the material until they

19 cleaned it up. They are legally liable for this

20 material. They have been from day one. 

21 The contracts retained title in the U.S.A.

22 because they thought there might be some value to

23 the material. Granted the emphasis at that time

24 was all on producing nuclear weapons. Everything

25 else was secondary, and therefore the devastation
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NANCY LEE & ASSOCIATES

1 wrought on the worker communities was horrible at

2 some of these facilities, absolutely horrible. 

3 The public still doesn’t know, and largely

4 wouldn’t know without the work of a reporter at

5 U.S.A. Today. 

6 UNIDENTIFIED: Mike Easton (phonetic).

7 MR. RAUCH: Okay. This is the state of

8 affairs we have here. It’s deplorable. Congress

9 really doesn’t give a damn, okay. They react to

10 pressure. That’S why Paducah got it. They react

11 to pressure. When the workers learned there that

12 they hadn’t been monitored for plutonium,

13 neptunium, there was an uproar. The way Congress

14 dealt with it was they included them in the Act. 

15 The same thing happened with these formerly

16 utilized sites, when the Congress passed UMTRCA

17 in 1978. The worst ones in the west got

18 enumerated, 22 sites are going to be cleaned up,

19 okay. The rest were going to be added to over a

20 period of a year. They gave the Secretary of

21 Energy a period of a year to add them. No others

22 were added. Linde should have been added, as

23 well as 46 other what’s called FUSRAP site,

24 Formerly Utilized Site Remedial Action Program

25 sites. They should have been added but they
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1 weren’t. Why? Unless you yell and scream,

2 nothing happens in this country. The government

3 knows damn well what they did to these people. 

4 They know, but they’re not going to do anything

5 about it until they’re forced to, pure and

6 simple. 

7 That takes care of the comment on Bethlehem. 

8 I recommended that she file a claim. I don't

9 know what has happened. My recommendation was to

10 get legal help, get her own consultant, her own

11 health physicist, to work this stuff up. My

12 comment earlier to Dr. Katz about what are the

13 guidelines, really didn’t answer the question

14 because there’s a lot of controversy over what

15 doses do cause cancer. And they’ve come down

16 repeatedly with re-assessment, have come down

17 over the years. 

18 There’s independent scientists like John

19 Gofman (phonetic) who believe the doses are ten -

20 - the official doses are ten times higher than

21 they should be for causation. Okay. That’s why

22 I asked the question. It’s glib to say we’re

23 going to pick the cancers that are going to be

24 most beneficial to the claimant. But still, you

25 are not answering the specific question I asked. 
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1 It’s what is your dose of causation, and what is

2 the basis for that?

3 MR. KATZ: Let me respond to that, then. I

4 did respond to it in a general way, but perhaps

5 you don’t recall. 

6 We have a risk-assessment program that is

7 exactly intended to make those estimates on a

8 case-by-case basis as to the probability of

9 causation. This is something, the probability of

10 causation for each case, the probability that the

11 dose or doses incurred by an individual caused

12 that individual’s cancer. 

13 Now that risk-assessment program is, as

14 required by the law, based on certain parameters

15 that are extremely claimant favorable. And I

16 don't know if you're familiar with it or whether

17 this would make sense to you, but the

18 determination is made on what is called -- and

19 this is going to sound like Greek to some people,

20 I’m sure -- but the upper 99 percent credibility

21 limit for the probability of causation. 

22 MR. RAUCH: Probability limit?

23 MR. KATZ: Upper 99 percent credibility limit

24 –-

25 MR. RAUCH: Credibility limit.
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1 MR. KATZ: -– of the probability of causation

2 determination, which is, just to sort of try to

3 explain that very briefly, means that you're

4 taking -- well, there is really no simple way to

5 explain this. But you're taking -- probability

6 of causation is a statistical determination. 

7 You're doing an estimate. And if you were, say,

8 to have 100 estimates of what the dose -- what

9 the probability of causation was, 100 estimates,

10 you're taking the highest, basically the highest

11 estimate of causation and using that to determine

12 probability of causation. 

13 Let me explain that a little better, maybe. 

14 You have 100 guesses as to what the probability

15 of causation was. One guess is that it was 12

16 percent, 12 percent likely that the cancer was

17 caused by radiation. Another guess is 13

18 percent, and that goes up all the way from 12

19 percent to, say, 60 percent, 100 different

20 guesses. What we have basically said -- and

21 Congress required this -- we’re going to make our

22 determinations based on that highest guess. 

23 MR. RAUCH: My point, you're missing my

24 point. The point is that if that 12 or 60

25 percent was based on a dose that’s one-tenth the
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1 dose that independent health physicists

2 recommend, then that isn’t the most favourable. 

3 Do you understand what I am saying?

4 DR. NETON: Yeah, I hear what you are saying. 

5 But I think –-

6 MR. RAUCH: Well, you're talking about

7 statistical probability.

8 DR. NETON: Right. I think that if you --

9 the program, the risk program that Ted is

10 referring to, is on our web site. And I would

11 encourage people to go out there and run their

12 own little calculations if they have access to

13 the web. 

14 But all the uncertainty with the risk models

15 is included in this program, so that we allow for

16 a wide -- these risks are not precisely known, so

17 it allows for a wide distribution of these risks. 

18 And you run the calculation, like Ted says, and

19 we actually run it several thousand times and

20 developed a range of possibilities based on the

21 science that we know. And we do account for the

22 fact that there are those that say the risk is

23 more, it’s more risky or less risky. All those

24 are in there. And then we take the upper end of

25 all those estimates and use that to determine if
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1 –-

2 MR. RAUCH: I’m speaking about the radiation

3 dose of causation. There’s a range there, for –-

4 DR. NETON: Well, the dose also is input as a

5 range. For example, we are not constrained to

6 put in a single number for the dose. If we don’t

7 know what the dose is but we know it’s between

8 one and ten, we can say that, and it will sample

9 all of those things.

10 MR. RAUCH: No, but in evaluating that, what

11 I’m saying is your standard for evaluation is

12 what? When I mentioned BEIR -–

13 DR. NETON: There is no single value. It’s a

14 risk model that’s based on probabilities. There

15 is no single risk value in this model. This

16 model samples the science as we know it, and

17 given the uncertainty about those risk values,

18 it’s tried to be a very fair –-

19 MR. RAUCH: When you are doing dose

20 reconstruction you go to a site -- I’m directing

21 this to Dr. Katz -- for example, Linde. You go

22 to a site, and you gather its environmental data,

23 soil concentrations. You gather data off the

24 structure, what the surface contamination is. 

25 You gather in picocuries per gram. 
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1 COURT REPORTER. I’m sorry, you gather?

2 MR. RAUCH: You gather in picocuries, P-I-C3 O, capital C-U-R-I-E-S. Picocuries per gram. 

4 You gather all this information. You then have

5 to develop a dose conversion factor for different

6 routes of exposure. 

7 Okay, say you got uranium at 238 thousand

8 picocuries per gram on the beams of a building

9 that people are working in, okay. You

10 extrapolate out that airborne contamination to

11 ingestion by an airborne route. Or say they’re

12 carrying it into the workplace and they’re

13 getting it on their food, it’s on their hands. 

14 They’re eating. They weren't warned, okay. It’s

15 on their hands, they’re ingesting it, okay. 

16 What I’m asking you is what dose conversion

17 factors are you using?

18 DR. NETON: Okay, I know you’ve addressed

19 this to Ted, but I’m actually the health

20 physicist responsible for leading all these dose

21 reconstruction efforts within NIOSH. So unless

22 Ted wants to –-

23 MR. KATZ: No.

24 MR. RAUCH: I’m sorry.

25 DR. NETON: That’s okay. We are using -- and
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1 again, this might get more complicated than

2 people want to -- but we are using the ICRP most

3 current models. We are using the ICRP 66 lung

4 model, and the most recent metabolic models that

5 are available that predict the dose to the

6 worker. In addition to that –-

7 MR. RAUCH: I just would say I asked that

8 specifically, whether it was ICRP, and I didn’t

9 get the response.

10 DR. NETON: I’m sorry, I probably didn’t hear

11 that. 

12 In addition to that, we are also allowing for

13 the fact that the different types of radiation

14 are more efficient at causing cancer than others. 

15 We have taken the ICRP radiation weighting

16 factors and actually developed our own

17 distributions about them, allowing for the fact

18 that we know that those aren’t certain. So we’ve

19 actually done a lot to modify that and be more

20 claimant favorable in that area. So there are a

21 number of things that we have done to do this.

22 MR. RAUCH: Okay. I have a number of

23 comments, so if there are other people that have

24 to leave, just go right ahead. 

25 DR. NETON: Yes, it might be best if we
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1 rotated a few, just so we allow time.

2 MR. GALUS: I would like to ask one question. 

3 Tim Galus again. My father worked at Linde from

4 1941 to 1978, so that’s basically nine of the ten

5 Atomic Weapons Employee years -- and I think the

6 DOE years are uncertain -- but it’s nine of the

7 ten Atomic Weapons. 

8 When you do your dose reconstruction, are you

9 only going to consider his exposure during those

10 nine years, or will it be for the entire 38 years

11 that he worked at the site?

12 DR. NETON: It will be for the entire time

13 period he worked at the site, up to the date of

14 diagnosis.

15 MR. GALUS: Okay, so --

16 DR. NETON: So, yeah, all exposure is

17 covered. As long as you are considered to be in

18 the covered work -- employed in the covered

19 period, then your dose is estimated all the way

20 up until your date of diagnosis, no matter what

21 the covered period is. 

22 MR. FIGIEL: John Figiel again. I was on

23 your web site, the NIOSH web site, and I found a

24 terminology that -- if you could explain it to

25 me, the terminology is default values in
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1 compensation. Is there another avenue that we’re

2 going to see later on –-

3 DR. NETON: Okay, I’m not –-

4 MR. FIGIEL: –- as opposed -- the lump sum

5 was one hundred and fifty. Is there going to be

6 -- will that be broken down at another time and

7 place?

8 DR. NETON: No, no. There is only one lump

9 sum, $150,000 dollars. 

10 I believe the default values that you read

11 are referring to the default values that we may

12 use in doing dose reconstructions. If we don’t

13 know, for example, the particle size that was in

14 the air, there are certain default values in

15 these ICRP models that I just referred to state

16 are appropriate to use or suitable to use for an

17 industrial environment, so we would pick those

18 values. And where we don’t know any better, we

19 will actually pick the most conservative,

20 claimant favorable default values. 

21 If we don’t know -- if the material was -- if

22 we have to pick between a material that’s very

23 insoluble or very soluble in the lung and we

24 don’t know any better, we will pick the most

25 insoluble material because that would deliver the
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1 largest dose to the lung, if the lung was the

2 organ that developed cancer. If it were some

3 other organ we would look at that and run all

4 possible models, and err on the side of being

5 claimant favorable.

6 MR. RAUCH: Jim Rauch continuing here.

7 I wonder, commenting on this petitioning for

8 a Special Exposure Cohort status, that happens

9 after a dose reconstruction cannot be

10 accomplished, okay. Now I wonder if other people

11 see the irrationality here. If you can’t do dose

12 reconstruction, then the wording is if you

13 petition for Special Cohort is if a determination

14 is made you are likely endangered. I know you’ve

15 explained that, you’ve explained likely

16 endangered. But presumably you need some

17 information to determine likely endangered. What

18 is that information?

19 MR. KATZ: So you still need some information

20 about, for example, the source term, what people

21 were exposed to.

22 MR. RAUCH: We asked for that in 1993 from

23 DOE. What is the source term at Linde? What is

24 the source term in curies at Linde? Well, we

25 don’t have to tell you that, because we’re doing
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1 clean-up. That isn’t the issue here in the

2 record of decision of an EIS. We’re doing clean3 up; that is immaterial. Well, it isn’t

4 immaterial now, is it, for the workers?

5 MR. KATZ: It’s not, it’s not immaterial. 

6 That’s correct. And that’s the sort of

7 information we expect to be getting from the

8 Department of Energy. 

9 MR. RAUCH: Good luck to you. You’re going

10 to need a lot more luck than we, who’ve been at

11 it ten years. I'll tell you that. I'll tell you

12 that. 

13 I think myself -- this is my own opinion,

14 myself -- and you as a professional, or both of

15 you as professionals, should be squirming a lot,

16 because you’re working for an employer that has

17 no ethics. None, zilch, nada. How does it feel? 

18 It’s a rhetorical question. This is pure

19 politics. Special cohort, likely endangered,

20 pure politics. That’s all it is, pure politics. 

21 You have to have information to determine

22 likely endangered. You can’t determine it

23 without information. You failed to be able to do

24 a dose reconstruction. What level of information

25 is necessary to do a dose reconstruction? At
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1 what point do you determine you can’t do a dose

2 reconstruction? What do you need, specifically

3 speaking? In generalities, but be as specific as

4 possible. Do you need the data from DOE on the

5 rafters? Do you need the sump data at Linde? Do

6 you need the injection well data? The millions

7 of gallons and the curies in the ground? Do you

8 need people on Two Mile Creek Road there, they’re

9 watering their garden from contaminated aquifer. 

10 Do you need that data? 

11 DR. NETON: The answer is, in general, we

12 need all of that information at some point. But

13 each case will be very specific, depending on the

14 type of cancer and the potential for radiation

15 exposure. I can imagine very different scenarios

16 for someone who is actually running a lathe,

17 grinding uranium or lathing uranium, versus

18 someone who was maybe engaged in more

19 administrative activities not in the production

20 area. You would require possibly a different

21 level of information to accomplish those dose

22 reconstructions. Also for the cancer type, the

23 dose reconstruction, the amount of information is

24 variable.

25 MR. RAUCH: Which one requires more? I’m not
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1 clear what you're saying. The administrative

2 white-collar worker, or the lathe operator?

3 DR. NETON: Well, they require different

4 types.

5 MR. RAUCH: Well, how different?

6 DR. NETON: Well, the airborne

7 concentrations, I suspect, would be more known in

8 the worker grinding on the lathe. The white9 collar worker would require a different set. 

10 Possibly environmental data would be all that

11 would be required, if we knew that there was no

12 airborne activity present in the administrative

13 areas above or below a certain level. We could

14 use the default value and say, assume that it’s

15 below a certain level. We wouldn’t have to go

16 back and reconstruct as precisely, possibly. 

17 It also has to do with the latency period of

18 the cancer. There are requirements, as the

19 cancer for leukemias, if the cancer occurs well

20 after exposure, the probability of causation

21 diminishes; versus solid tumors, the probability

22 of causation increases. So one needs to look at

23 all these factors to determine how --

24 MR. RAUCH: We should stay with the lathe

25 operator a little bit longer.
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1 DR. NETON: Okay. 

2 MR. RAUCH: Explain to me, if the air monitor

3 is not in the corner where he’s operating, is

4 that what you're trying to say?

5 DR. NETON: Right.

6 MR. RAUCH: That you're going to say that

7 he’s not eligible?

8 DR. NETON: No, no. Not at all. We would

9 take –-

10 MR. RAUCH: Are you going to exercise a

11 Draconian reduction in his exposure?

12 DR. NETON: Well, we would do our best to

13 estimate or extrapolate the air concentration in

14 the work area based on air monitoring data. That

15 is the best we can do. Now --

16 MR. RAUCH: This is sort of reminiscent of

17 this woman’s problem with Bethlehem.

18 DR. NETON: Right. Again, I don’t want to

19 get into real specifics with dose

20 reconstructions, but in a particular case, for

21 example if the material is extremely insoluble

22 uranium -- and maybe we’re getting too technical;

23 I'll just go on this one example, though -- if

24 it’s very insoluble uranium and it’s judged that

25 it never or very slowly leaves the lung, and
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1 someone develops a cancer outside the lung

2 region, for example prostrate cancer, where

3 uranium was known not to concentrate, one does

4 not need to be as precise because the dose to the

5 prostate gland might be very small, even given

6 fairly large exposures to uranium, because it

7 never left the lung. So we make adjustments on

8 how much information and how far we refine this

9 process.

10 MR. RAUCH: And on the other side of the

11 coin, if you didn’t have that information you’d

12 err on the side of the claimant insofar as

13 potential exposure?

14 DR. NETON: Right. If we didn’t know if it

15 was soluble or insoluble we would assume in that

16 case that it was soluble, and we would calculate

17 the dose to the prostate gland based on the

18 solubility --

19 MR. RAUCH: And of course, this is all the

20 government’s word we have to trust, because most

21 people are not going to to know, unless they go

22 through like we have, whether the compounds were

23 soluble or insoluble uranium compounds.

24 DR. NETON: Right, and --

25 MR. RAUCH: So it’s going to be their faith
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1 in the government who has been lying to them all

2 along.

3 DR. NETON: I will say the dose -- each dose

4 reconstruction report that is generated will

5 describe in some detail all the default

6 parameters that were used, why we chose them –

7 MR. RAUCH: This is a government that fed

8 plutonium to unsuspecting people, okay. Why

9 should people believe them? I recommend that

10 everybody here that files a claim get an

11 attorney, okay, and take this -- if you have a

12 long record of exposure you get yourself an

13 attorney, and you make this thing work for you. 

14 It’s the only way you're going to get anywhere. 

15 And there’s a lot of attorneys out there pro bono

16 that will take this stuff on, more and more, and

17 if you can get a class together all the better. 

18 Get a class together and really go after them,

19 because that’s what you need to do. It’s sad,

20 but it’s true. I'll continue with my other

21 comments.

22 Mr. Galus earlier talked about smoking and

23 being questioned on criteria there. Earlier Dr.

24 Katz said at least as likely. Could you explain

25 when you say at least as likely, specially that
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1 reference to smoking by a worker here, but at

2 least as likely to have been caused by cancer or

3 -- to have been caused by radiation induced

4 causation, or some other environmental cause of

5 the same cancer. Is that like a 51 percent

6 chance?

7 MR. KATZ: That means 50 percent chance, but

8 then as I noted, that is using the upper 99

9 percent credibility limit. So in reality, that

10 might be a 12 percent chance because you're

11 giving all the uncertainty, in effect, to the

12 benefit of the claimant, all the uncertainty

13 about that probability of causation.

14 MR. RAUCH: I’m not sure of that. That’s

15 your comment. I’m not sure, at all sure of that,

16 unless –-

17 MR. KATZ: Well, but that’s just a plain

18 statistical –-

19 MR. RAUCH: -- unless we know what these

20 specific guidelines are. The actual

21 implementation of this dose reconstruction is

22 really where the rubber meets the road on this. 

23 That’s where it really -- and people have got to

24 get up to speed on that or get their own health

25 physicists. 
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1 Can you talk about that a little bit? You

2 spoke of guidelines earlier to determine if a

3 dose reconstruction is possible. Speak to me a

4 little bit about specifics relative to Linde.

5 DR. NETON: Well, if there is no monitoring

6 information but only a very scant knowledge of

7 the source term -- I mean within an order of

8 magnitude, say, for example -- we can establish

9 that the source term was some level. And it

10 appears that that source term was sufficient to

11 have potentially endangered the health, or had

12 been as likely as not -- could have as likely as

13 not been the cause of the cancer in that class. 

14 MR. RAUCH: So at Linde, a hundred curies or

15 a thousand curies could be the source term?

16 DR. NETON: It could be.

17 MR. RAUCH: Okay.

18 DR. NETON: That’s your example. But I’m

19 saying it could be an order of magnitude. But if

20 it’s sufficient magnitude to, if generated in the

21 most claimant-favorable scenario, which would be

22 a large airborne release of that material that we

23 couldn’t establish actually occurred or not -- I

24 mean, we just don't know, but it could have

25 happened -- then that would be a case where we
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1 couldn’t do a dose reconstruction; we would just

2 be guessing. But at least the conditions were

3 such that the exposure could have been large

4 enough to have generated a probability of

5 causation.

6 MR. RAUCH: The problem is, sir, at these

7 sites the nature of the release is not a large

8 airborne release. It’s not a one-time

9 occurrence. It occurs through many routes over a

10 period of years.

11 DR. NETON: That’s correct, and each of these

12 routes would be evaluated. For example, the –-

13 MR. RAUCH: That is not a simple task.

14 DR. NETON: Well, we -- I agree. That’s not

15 simple. Certain pathway --

16 MR. RAUCH: You know what Congress has

17 ordered here? Congress has ordered the

18 impossible. Basically they’re trying to correct,

19 they’re trying to make repayments to injured

20 workers and their families, while all the while

21 lying to these people and telling the community

22 and the workers that it’s safe, and lying to the

23 public that’s trying to get the site cleaned to a

24 safe level. By the way, Linde’s level of clean25 up that the Army Corps in its infinite wisdom
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1 decided upon finally –-

2 COURT REPORTER. I’m sorry, sir, that the

3 Army Corps –

4 MR. RAUCH: The Army Corps of Engineers in

5 its infinite wisdom decided on finally was ten to

6 fifty times the recommended clean-up level that

7 the Department of Energy had requested for that

8 site. So this is really not a clean-up,

9 according to the record of decision. This is

10 what the USA Today article said: 600 picocuries

11 surface per gram, 3,021 picocuries subsurface is

12 going to be left behind under the record of

13 decision at Linde. Army Corps says, trust us,

14 we’re going to clean it up so it’s safe. But

15 that’s what the law, that’s what the record of

16 decision says: 3,021 picocuries per gram can be

17 left six inches below the surface on that site. 

18 That’s their clean-up level. 

19 Sites everywhere else in the Nuclear

20 Regulatory Commission clean-up level is 10

21 picocuries per gram for natural uranium. That’s

22 the clean-up. All these decay chain members,

23 therefore, are five picocuries per gram -- five

24 for thorium, five for radium, okay. That’s what

25 the legal clean-up should be at Praxair’s owned
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1 Linde site now. 

2 Praxair, who I don’t believe is here tonight,

3 has the legal authority to go ahead and sue the

4 federal government to get clean-up to 10

5 picocuries per gram. Have they done it? No. 

6 They’re getting government contracts. The whole

7 thing is the money here, folks. The government

8 doesn’t want to pay money, but they don’t want to

9 have unhappy voters either.

10 DR. NETON: We’re running short on time. Is

11 there anyone –-

12 MR. RAUCH: Thank you, I’ve had my say, I

13 guess. But I would just recommend that people

14 get attorneys, get their own expert witness,

15 expert health physicists. 

16 DR. NETON: I think we can entertain several,

17 a couple more questions, maybe, and then we will

18 wrap it up.

19 MR. KRIEGER: My name is Ralph Krieger, Vice20 President, Amalgamated Groups, Local 1-00277,

21 former President, Local 8215 OCAW. 

22 The report that was supposed to be issued by

23 NIOSH compensation program is Section 3151 of the

24 Defense Authorization Act 2000. That, from what

25 I understand, was supposed to be out by June this
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1 year, as to the last I’ve heard that report has

2 not. And that report is, as it reads here:

3 (Reading) Finally, the provision would

4 require the National Institute for Occupational

5 Safety and Health to conduct a study in

6 coordination with the Defense Department, DOE,

7 the Department of Labor, to determine whether

8 there is sufficient residue contamination at

9 beryllium vendors or Atomic Weapons Employers

10 facilities that have caused or substantially

11 contributed to cancers or beryllium illness

12 covered -- illness of covered employees. 

13 The interim report was due 180 days after the

14 enactment of the Act, and the final report is due

15 one year after that date. You have failed to do

16 that, have you not? Yes or no? It’s a yes or no

17 answer.

18 MR. KATZ: I’m going to answer the question

19 the way I please, but the residual contamination

20 report, this is the report that Jim has been

21 discussing. And it is completed, the interim

22 report, which is required to be done within 180

23 days. It is hung up in clearances going through

24 upper levels, but it will be delivered to

25 Congress shortly.
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1 MR. KRIEGER: I don't know. I –

2 MR. KATZ: But it is completed.

3 MR. KRIEGER: I talked to Senator –-

4 MR. KATZ: We did complete the work. 

5 MR. KRIEGER: -- Clinton’s office. And they

6 tried to get the interim report, and your agency

7 refused to give it to them. 

8 DR. NETON: Yes, that –-

9 MR. KRIEGER: You don’t have to answer that. 

10 That’s a fact. So basically your report is not

11 finished. 

12 Now we’ve had a lot of discussion on the

13 different cancers. I’ve got only two pages out

14 of a very large article or law, part of the law,

15 and it says under Section (c):

16 (Reading) Individuals designated as part of

17 the Special Cohort by the Secretary of Health and

18 Human Services, in accordance with Section 3513,

19 21 specified cancers, the term “specified cancer”

20 means the following:

21 a) Leukemia, other than chronic lymphatic

22 leukemia.

23 b) Multiple myeloma.

24 c) Non-Hodgkin’s lymphoma.

25 d) Cancer of bladder, bone, brain, breast,
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1 male and female; cervix; digestive system,

2 including the esophagus, the stomach, and small

3 intestines, bile duct, colon, rectum, and other

4 digestive organs; gall bladder; kidney; larynx; I

5 can’t pronounce the other one, but it’s for the

6 throat; or other respiratory organs. Liver,

7 lung, male genitalia, nasal organs, nervous

8 system, ovaries, pancreas. Wouldn’t you know,

9 prostate. Your report. 

10 And tonight I heard here that the prostate

11 wasn’t even on your list, and it’s not on your

12 list.

13 DR. NETON: I’m sorry, I was misunderstood. 

14 Prostate is a covered cancer under the Act. I

15 was -- in that context I was doing a specific

16 example about what level of dose reconstruction

17 we would perform based on the type of material a

18 person inhaled, and how it was distributed in the

19 body.

20 MR. KRIEGER: In your vast experience on

21 prostate cancer, have there ever been any studies

22 ever done of nuclear plant workers -- I’m talking

23 like Oak Ridge, Savannah River, other locations

24 that are severely contaminated, severely

25 contaminated by highly -- Rocky Flats, just to
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1 name a few. Is there any study done that they

2 have found a heavy metal in the prostate?

3 DR. NETON: Not to my knowledge. 

4 MR. KRIEGER: No. So in order to get

5 prostate cancer it would have to be basically by

6 gamma radiation, would it not?

7 DR. NETON: I think that would be the more

8 likely route of –- yes, to receive a dose to the

9 prostate gland, yes.

10 MR. KRIEGER: Okay. 

11 DR. NETON: I’m not saying that’s impossible,

12 but I’m saying that it would be more likely to be

13 more heavily irradiated by external exposure than

14 internal exposure from a heavy metal.

15 MR. KRIEGER: Yeah. And the other ones are

16 the salivary glands, thyroid, uterine, urinary

17 tract or urinary organs, and uterus. 

18 Now that’s your report on one of your

19 articles. I'll give it to you. You may have it. 

20 It’s a very lengthy report, of course. I’m going

21 to ask a number of questions that probably would

22 be provoking or confrontational, and I really

23 don't want to get into that. 

24 But one thing that was interesting that Mr.

25 Rauch was bringing up, we are really going into
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1 what I would call protracted, very lengthy

2 process here. And the bottom line is to make

3 sure the worker doesn’t get paid. That’s the

4 bottom line. Yeah, the workers got paid. We

5 know who got paid. And that’s fine. 

6 But the bottom line is to see did other

7 locations -- because we all know how many

8 locations there are, don’t we, because that was

9 in the USA report. There’s 550-some-odd sites

10 throughout the United States that were left

11 contaminated to various degrees to whatever they

12 were working with.

13 Now the interesting fact that Jim had brought

14 up, I think when I last looked there was like

15 over five hundred and some odd million dollars so

16 far this last year or so that was dedicated to

17 the cost of this program. Is your cost here

18 tonight, your people being here tonight, is that

19 coming out of that money? Or is it coming out of

20 a separate fund?

21 MR. KATZ: Our cost of being here today is

22 coming -- Jim, since Jim is an employee of this

23 program, his cost comes out of the source funds

24 we get to administer EEOICPA, absolutely. Other

25 individuals are here as parts of -- other parts
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1 of NIOSH are coming out of NIOSH general funds. 

2 In any event, this all is coming from the U.S.

3 Treasury. It’s all coming from the same place.

4 MR. KRIEGER: So, but the answer to the

5 question is, is the money that you're spending

6 today to be here at all these different locations

7 explaining this program, and all the monies

8 you're going to expend trying to prove these

9 different locations and individuals, is going to

10 come out of that money that was actually

11 earmarked for the employee and their families?

12 MR. KATZ: And the answer is –-

13 MR. KRIEGER: Is it not? Yes or no?

14 MR. KATZ: No.

15 MR. KRIEGER: It’s not?

16 MR. KATZ: No. It’s all –-

17 MR. KRIEGER: There’s another fund, then,

18 right?

19 MR. KATZ: This is all coming from the U.S.

20 Treasury. There is no limitation on the funds to

21 compensate employees under this program.

22 MR. KRIEGER: Oh, there is a limitation. 

23 Congress put a limitation on it. They only

24 allotted $500,000 for -- I think this -- I don't

25 know what it is for this year, but it’s five
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NANCY LEE & ASSOCIATES

1 hundred some odd million for this year or last

2 year. 

3 MR. KATZ: Let me –-

4 MR. KRIEGER: I don't remember which one it

5 was.

6 MR. KATZ: Let me explain. This is -- may I

7 explain?

8 MR. KRIEGER: Yes.

9 MR. KATZ: This is actually mandatory funding

10 this program, which means it’s treated just like

11 Social Security. The checks go out regardless. 

12 There do not have to be funds appropriated to pay

13 claims for this. The Treasury writes the checks

14 regardless of the number of claims that have to

15 be paid. 

16 MR. KRIEGER: But the American taxpayers,

17 which are you and I, and everyone sitting in this

18 room, are paying that bill.

19 MR. KATZ: Absolutely.

20 MR. KRIEGER: What is the cost effectiveness

21 of that? With you spending all this money and

22 all this time to prove a point, to prove whether

23 they had the radiation, or if radiation did cause

24 the cancer. Take an individual, and you do that. 

25 I’m just going to take one individual. And you
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NANCY LEE & ASSOCIATES

1 have to go a site, say, Bethlehem Steel. What

2 would be the estimated cost for one individual

3 for your department to do the entire research

4 that is necessary for them to get the $150,000

5 dollars?

6 MR. KATZ: I can’t give you a figure for

7 that. That will differ so dramatically case by

8 case. But when we are getting information we

9 will actually be getting information -- in most

10 circumstances we'll be getting information that

11 will serve our dose reconstructions for large

12 numbers of people, not for just individuals. So

13 the work we do for an individual claim, to do a

14 dose reconstruction for an individual claim, will

15 serve us for other -- the co-workers at that

16 site, and so on. That information we collect

17 will be useful for many other claims. So –-

18 MR. KRIEGER: But technically speaking, you

19 said that before, if I heard you correctly, that

20 each individual, each site and each individual --

21 you mentioned a machinist, for example, versus a

22 white-collar worker in the office. There’s going

23 to be a difference there. You can’t use that

24 same criteria, so you’re going to have to have a

25 different criteria. So for each one of those
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NANCY LEE & ASSOCIATES

1 cases, in order to be correct, has to be done on

2 an individual basis. 

3 MR. KATZ: That –-

4 MR. KRIEGER: You can’t go, well, the

5 machinist was over here, he was doing that. And

6 let me say, how are you going to deal with the

7 nuclear pile that was sitting out in the north

8 parking lot blowing all over the place –-

9 MR. KATZ: Well –-

10 MR. KRIEGER: -- 365 days a year, where

11 people worked in that parking lot? And there

12 were white-collar people that went in there. Now

13 how are you going to do -- how do we know how

14 much was coming off that pile? We don’t know how

15 much was coming off that pile. We don’t know

16 what was there. Was it a white-collar worker? 

17 But now, say myself now. White-collar worker

18 was there. I worked at Linde. I worked in

19 maintenance. I worked in Building 30. I cut the

20 roof leaders down in Building 30 while the people

21 were still in the building. Roof leaders are the

22 drains off the roof. They were rotten. They

23 were five inch pipes. I cut them down. I put

24 them on a cart. I was going to scrap them. You

25 know what I was told? No, not until the
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1 technician comes over with the geiger counter and

2 reads it. I was told to put them behind a

3 building and leave them. They finally end up on

4 a nuclear pile. The DOE finally took them out. 

5 But I cut them down. 

6 Now how are you going to do my dose

7 reconstruction on that pipe? I’m not sick yet. 

8 I’ve got black marks on my lungs, but I’m not

9 sick yet. But I’m just saying, how are you going

10 to do those dose reconstructions? The time spent

11 down there -- and God forbid, I’m not faulting

12 you. Don’t say that. I’m not faulting you. 

13 One thing I do not -- because Tommy and

14 myself went to Washington, D.C. We were part of

15 the people who lobbied down there, okay. I don't

16 want to see people getting this -- a program that

17 doesn’t do nothing, do nothing, because the

18 people who worked this program or worked on these

19 sites were veterans, and they worked for the

20 government. They fought for the government. And

21 I don't want to see anybody get a free ride on

22 that over their bodies. That wouldn’t be right,

23 either. 

24 But again, there’s an expense here that I

25 keep seeing going out there that the American
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1 taxpayers are going to be paying. And we need to

2 get a simpler method here and a better method.

3 Now in closing, because I know everybody

4 wants to leave, I’m going to give you a copy of

5 something. It’s the Buffalo Evening News, August

6th 6 , 1995. It is the front page of the Buffalo

Evening News, Monday, August 6th 7 , 1945. The first

8 bomb, which it tells you didn’t work all the way

9 –

10 COURT REPORTER: I’m sorry, sir, I can’t hear

11 you, I’m sorry.

12 MR. KRIEGER: Tells you it didn’t work all

13 the way. There’s an interesting -- I highlighted

14 it in yellow for you -- a young doctor who went

15 to Nagasaki, and here’s a quote:

16 “It is much worse than just a physical

17 blast.” -- that’s a quote -- said Dr. Fred Snell

18 -- S-N-E-L-L -- of Eden, New York. He’s a

19 biophysicist, Professor Emeritus, from the

20 University of Buffalo. He was a young doctor at

21 that time. “Radiation paralyzes the immune

22 system.” That’s where he saw most of the deaths,

23 was the immune system breaking down. 

24 So I would urge you in fiscal responsibility,

25 before you start looking at everybody ripping
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NANCY LEE & ASSOCIATES

1 everything off here, to kind of cut down. 

2 Because when you use physicists and other

3 chemists and other people like that, that’s

4 money. Not that they shouldn’t be employed, but

5 I’m not employed. They got rid of me over at

6 Linde. Can’t imagine why, a nice guy like me. 

7 But anyway, I’m going to give it to you. And I

8 don't know if the good doctor is still alive

9 today or not, but that was his observation from

10 ground zero.

11 I thank the audience for staying. There is a

12 lot more that I’d like to go through and beat you

13 up on, but the main issue here is the cost14 effectiveness of the program. And when Tommy and

15 I went to Washington and lobbied, it was

16 basically pretty relative. It was that if you

17 could show that you worked on the site and the

18 site was still contaminated -- I don't know how

19 you're going to do Linde, because they’re over

20 there cleaning it up, except they can’t -- well,

21 you can’t clean up the wells. They’re going to

22 stay there forever. It was very, very basic. 

23 You’re complicating it to the point of infinity. 

24 Not only that, but you are frustrating many older

25 people who I deal with who call me up whose
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1 mothers, whose fathers died of cancer there. And

2 the thing is so complicated for them because they

3 can’t get the information. Linde’s one of the

4 fortunate plants around that it still has that,

5 and they still have some union members that know

6 what the heck was going on there, because my

7 father was President for thirty years there. And

8 he worked, or was in the Manhattan Project,

9 because he was President of the union, had to go

10 in there because it was -- he’s the only one who

11 had security clearance, along with Butch Wall. 

12 So he was there. He had the plant operations. 

13 He knew what was going on.

14 But a word of advice. I’m getting short here

15 on patience. And if I do that, I’m going to

16 bring the hammer down on you real hard. And I

17 will do that, because you are taking money away

18 from the American taxpayers, and you are taking

19 money away from people who actually deserve it. 

20 I have a veteran that’s wearing a bag now who

21 fought in the Pacific campaign. He was a marine. 

22 And he’s suffering terrible. And I don't know

23 how long he’s going to last, and that’s not

24 right.

25 DR. NETON: Okay, thank you for those
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1 comments. We’ve pretty much run out of time

2 here, we’ve used up our allotted time for –

3 MR. RAUCH: Excuse me, I have one more

4 comment to make.

5 DR. NETON: Okay, this is the last --

6 MR. RAUCH: This is a specific comment on 

7 the proposed rule.

8 DR. NETON: It needs to be fairly quick. 

9 We’re over our time.

10 MR. RAUCH: With regard to Special Cohort at

11 the gaseous diffusion plants, there’s been a

12 description of this standard as a bright line

13 standard of proof, and that is the standard

14 that’s been employed there is if they worked at a

15 site for more than 250 days and were employed in

16 job categories which monitored or should have

17 been monitored with dosimetry badges for

18 radiation exposure. 

19 I think this is sort of what Ralph is getting

20 at. Here we have a designated group for which

21 doses are not known, and they’re being included. 

22 A lot of these plants that operate, for example,

23 the ceramics plant at Linde, operated under

24 production constraints. They were to produce

25 uranium dioxide as fast as they could, okay. The
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1 monitoring that was done was minimal, absolutely

2 minimal, as far as we can determine. At places

3 like Harshaw, where there was some monitoring

4 done, the exposures were terrible.

5 DR. NETON: We need to wrap it up here. 

6 MR. RAUCH: So my point is a rational point,

7 that let’s stop the politics, okay. And let’s

8 provide awards to the exposed workers at these

9 sites during the covered period under the war --

10 under the Act and their survivors, and their

11 survivors, their grandchildren; and let’s expand

12 the program to cover people like Ralph and Tom,

13 who worked in these facilities that weren’t

14 monitored. 

15 By the way, I should point out as a matter, a

16 point of law, that under UMTRCA Linde was not

17 included as a designated site because it had --

18 the material was licensed by the State of New

19 York. 

20 DR. NETON: Okay, I think --

21 MR. RAUCH: That license was terminated

22 illegally in 1996, okay. In other words, because

23 there was supposedly control being exercised over

24 that site -- let me just finish, sir, because

25 it’s a very important legal point that any
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1 attorneys that may want to pick up on this may

2 want to follow. Because that site had a license

3 from the State of New York Department of Labor,

4 that was the excuse. A licence is supposedly

5 control of the material so that people, workers

6 and the public, is not adversely affected. 

7 That’s the sole purpose of a license. Sole

8 purpose of a license. That’s the legal reason

9 for having a license. 

10 Because that facility had a license in 1978

11 when UMTRCA was passed, the Uranium Mill Tailings

12 Radiation Control Act, the Linde site was not

13 designated for clean-up because they felt there

14 was adequate control by the license. We went to

15 the Department of Labor. The Department of Labor

16 told us that that license was just for record

17 keeping purposes. We’ve interviewed a number of

18 workers. The workers told us that the people

19 weren’t monitored. The buildings were not

20 adequately signed, according to New York Code 38,

21 and yet supposedly there was a license. 

22 Well, in 1996 the Department of Labor, State

23 of New York, in its infinite wisdom, decided to

24 just terminate that license for that FUSRAP

25 uranium material -- terminated it without meeting
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NANCY LEE & ASSOCIATES

1 the decommissioning standards of their own code

2 rule. Okay, they terminated it. This is for

3 your own information, Dr. Katz. They terminated

4 that license, illegally terminated it, and said

5 that because DOE was cleaning it up now they

6 didn’t have to continue to license. 

7 This is the kind of government you have,

8 people. The license was to control the material

9 and protect the workers. It didn’t. In that

10 non-contracted period from 1950 all the way up

11 through the nineties, people were exposed there. 

12 We don’t know what their exposure was. We know

13 the site is heavily contaminated.

14 Thank you. 

15 DR. NETON: Okay, thank you. Thank you for

16 those comments. 

17 We are definitely out of time now, so we need

18 to conclude our formal meeting here. I would

19 encourage anyone that wants to stick around,

20 NIOSH staff will be available for answering any

21 questions for a brief period of time after this

22 meeting is over. 

23 Again, we thank you for coming here tonight. 

24 We appreciate you taking the time to provide us

25 comments and input on this proposed rule. That
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1 concludes the meeting. I thank you for coming,

2 and everyone have a safe drive home.

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