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
 

ADVISORY BOARD ON
 

RADIATION AND WORKER HEALTH
 

The verbatim transcript of the Meeting of the
 

Advisory Board on Radiation and Worker Health held
 

via Teleconference on Friday, March 28, 2003. 

NANCY LEE & ASSOCIATES 

Certified Verbatim Reporters
 

P. O. Box 451196
 

Atlanta, Georgia 31145-9196
 

(404) 315-8305
 
2 

C O N T E N T S
 

PARTICIPANTS (by group, in alphabetical order) ..... 3 
 

CALL TO ORDER ...................... 6 
 

INTRODUCTIONS ...................... 7 
 

PUBLIC COMMENTS:
 

Carmen Gonzales ................... 13 
 

Ken Silver ...................... 14 
 

Richard Miller .................... 16 
 

Denise Brock ..................... 21 
 

Epifania Jacquez ................... 25 
 

Betty Jean Shinas .................. 29 
 

Gloria Trujillo ................... 31 
 

Daniel McKeel .................... 32 
 

George Barrie .................... 34 
 

BOARD DISCUSSION ON SPECIAL EXPOSURE COHORT NOTICE OF
 

PROPOSED RULEMAKING RECOMMENDATIONS ........... 38 
 

Motion/Vote ................... 97/99
 

CERTIFICATE OF REPORTER ................ 140 
 
3 

P A R T I C I P A N T S
 

(By Group, in Alphabetical Order)
 

ADVISORY BOARD MEMBERS
 

CHAIR
 

PAUL L. ZIEMER, Ph.D. 

Professor Emeritus
 

School of Health Sciences
 

Purdue University
 

Lafayette, Indiana
 

EXECUTIVE SECRETARY
 

LARRY J. ELLIOTT
 

Director, Office of Compensation Analysis and Support
 

National Institute for Occupational Safety and Health
 

Centers for Disease Control & Prevention
 

Cincinnati, Ohio
 

MEMBERSHIP
 

HENRY A. ANDERSON, M.D.
 

Chief Medical Officer
 

Occupational and Environmental Health
 

Wisconsin Division of Public Health
 

Madison, Wisconsin
 

ANTONIO ANDRADE, Ph.D.
 

Group Leader, Radiation Protection Services Group
 

Los Alamos National Laboratory
 

Los Alamos, New Mexico
 

ROY LYNCH DeHART, M.D., M.P.H.
 

Director, The Vanderbilt Center for Occupational and
 

Environmental Medicine
 

Professor of Medicine
 

Nashville, Tennessee
 

RICHARD LEE ESPINOSA
 

Sheet Metal Workers Union Local #49
 

Johnson Controls
 

Los Alamos National Laboratory
 

Espanola, New Mexico
 
4 

P A R T I C I P A N T S
 

(Continued)
 

MICHAEL H. GIBSON 

President, Allied Industrial, Chemical, and Energy Union
 

Local 5-4200 

Miamisburg, Ohio 

MARK A. GRIFFON
 

President, Creative Pollution Solutions, Inc.
 

Salem, New Hampshire
 

JAMES M. MELIUS, M.D., Ph.D.
 

Director, New York State Laborors’ Health and Safety 

Trust Fund
 

Albany, New York
 

WANDA I. MUNN
 

Senior Nuclear Engineer (Retired)
 

Richland, Washington
 

CHARLES L. OWENS
 

President, Allied Industrial, Chemical, and Energy Union
 

Local 5-5500 

Paducah, Kentucky
 

ROBERT W. PRESLEY
 

Special Projects Engineer
 

BWXT Y-12 National Security Complex
 

Clinton, Tennessee
 

GENEVIEVE S. ROESSLER, Ph.D.
 

Professor Emeritus
 

University of Florida
 

Elysian, Minnesota
 

DEPARTMENT OF HEALTH AND HUMAN SERVICES
 

CORRINE HOMER 

LIZ HOMOKI-TITUS 

TED KATZ
 

DAVID NAIMON
 
5 

JIM NETON
 
 

 

6 

P A R T I C I P A N T S
 

(Continued)
 

CATHY RAMADEI
 

RENE ROSS
 

DAVE SUNDIN
 

DEPARTMENT OF LABOR
 

JEFF KOTSCH 

ROSE TOUFEXIS 

CONTRACTORS
 

KIM NEWSOM, Nancy Lee & Associates, Certified Court Reporter
 

TERESA ROBINSON, Cambridge Communications, Writer/Editor 

PUBLIC PARTICIPANTS
 

JAMES BARNES, Rocketdyne/Boeing, Los Angeles
 

GEORGE BARRIE, Rocky Flats, CO
 

TERRIE BARRIE, Colorado
 

DENISE BROCK, St. Louis, MO 

KAY DREY, St. Louis, MO
 

BILL FIELD, University of Iowa, College of Public Health
 

PHILIP FOLEY, Worker Health Protection Program, Paducah, KY
 

CARMEN GONZALES, Survivor
 

EPIFANIA JACQUEZ, Survivor
 

SYLVIA KIEDING, PACE
 

MARK LEWIS, Worker Health Protection Program, Portsmouth, OH
 

DANIEL MCKEEL, Physician and pathologist
 

RICHARD MILLER, Government Accountability Project
 

MR. RAY, Ohio
 

PHILIP SCHOFIELD, Los Alamos POW, Espanola, NM
 

BETTY JEAN SHINAS, Survivor
 

KEN SILVER, Los Alamos POW
 

BILL TANKERSLEY, Oak Ridge Associated Universities
 

GLORIA TRUJILLO, Survivor
 
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P R O C E E D I N G S
 

2:07 p.m.
 

[Preceding the call to order, a roll call of
 

the Board was taken. All Board members were
 

present.]
 

DR. ZIEMER: Let me officially call the
 

meeting to order. This is the official
 

conference call of the Advisory Board on
 

Radiation and Worker Health. 

The agenda has been distributed. It is also
 

on the Web site. There are two things on the
 

agenda. One is a public comment period for which
 

we have allowed thirty minutes, and that thirty
 

minutes will start when we start the actual
 

comment period. And then the rest of the time is
 

devoted to Board discussion. If there's time at
 

the end of the Board discussion before the 5:00
 

o'clock hour, we can -- that's 5:00 o'clock
 

Eastern Standard Time -- we can take additional
 

public comments.
 

I'd like to -- we had a roll call. All the
 

Board members are present on the line, including
 

the Executive Secretary, Larry Elliott. 

We'd like to determine who's here from the
 

general public, and how many wish to make public
 

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comments so that we can allot the time. So let
 

me just ask members of the public to identify
 

yourself by name and either location or
 

affiliation, and then indicate whether you wish
 

to make public comment.
 

So anybody can start.
 

MR. FOLEY: Philip Foley from Paducah,
 

Kentucky, with the Worker Health Protection
 

Program. 

DR. ZIEMER: And spell your name. Your last
 

name is -­

MR. FOLEY: F-O-L-E-Y.
 

DR. ZIEMER: Okay, from Paducah.
 

Anyone else?
 

MS. BARRIE: Terrie Barrie from Colorado,
 

advocate. And I'm not sure if I'll be -­

DR. ZIEMER: Do you need to have the name
 

spelled?
 

MS. ROBINSON: Yes, please.
 

MS. BARRIE: B as in boy, A-R-R-I-E is the
 

last name, Terrie, T-E-R-R-I-E.
 

DR. ZIEMER: Okay, others?
 

MS. GONZALES: Yes, can you hear me?
 

DR. ZIEMER: Barely.
 

MS. GONZALES: Can you hear me, gentlemen?
 

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DR. ZIEMER: Yes, speak loudly.
 

MS. ROBINSON: I can't.
 

MS. GONZALES: My name is Carmen Gonzales.
 

MS. NEWSOM: I'm sorry, I can't hear that. 

MS. ROBINSON: This is Teresa from Cambridge. 

I can't hear that. 

MS. GONZALES: Okay. My name is Carmen 

Gonzales. I'm on a speaker phone. Can you hear
 

me?
 

MS. ROBINSON: No.
 

MS. GONZALES: You can't hear me?
 

MS. ROBINSON: Now I can.
 

DR. ZIEMER: Barely.
 

MS. GONZALES: Hold on. 

Okay, my name is Carmen Gonzales. Can you
 

hear me now?
 

MS. ROBINSON: Yes.
 

DR. ZIEMER: Yes.
 

MS. GONZALES: Okay. I was on speaker phone. 

And I'm a survivor, and I'd like to comment on
 

the special cohort. 

DR. ZIEMER: Okay, we'll come back to you,
 

then.
 

Others?
 

MS. GONZALES: I'm sorry?
 

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DR. ZIEMER: We will come back to you after
 

we have the roll call here.
 

Others?
 

MS. DREY: Kay Drey in St. Louis, and I do
 

not want to make a comment.
 

DR. ZIEMER: Spell the last name again.
 

MS. DREY: D as in David, R-E-Y. I will not
 

want to make a comment.
 

DR. ZIEMER: You do wish to make a comment?
 

MS. DREY: No, I will not want to make a
 

comment.
 

DR. ZIEMER: No, okay.
 

Others?
 

MS. LEWIS: This is Mark Lewis from PACE 5689
 

from Portsmouth, Ohio. I don't really have a
 

comment planned, but who knows.
 

DR. ZIEMER: Okay, others?
 

MR. BARRIE: George Barrie, B-A-R-R-I-E. 

Sick worker from Rocky Flats, Colorado.
 

DR. ZIEMER: Okay, others?
 

MR. SCHOFIELD: Philip Schofield from
 

Espanola, New Mexico. I'm with a project on
 

worker safety.
 

DR. ZIEMER: Okay. 

MR. SILVER: Ken Silver, Los Alamos POW. 

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Yes, I will have a comment.
 

DR. ZIEMER: Comment from -- okay, we'll mark
 

you down.
 

Others?
 

MS. KIEDING: Sylvia Kieding from PACE, and I
 

don't know if I will. 

DR. ZIEMER: Okay. 

MR. RAY: (Inaudible) Ray, R-A-Y, from
 

(inaudible), Ohio.
 

MS. RAMADEI: I'm Cathy Ramadei from the CDC
 

Committee Management Office. 

DR. ZIEMER: Okay. 

MS. ROSS: I'm Rene Ross from the CDC
 

Committee Management Office.
 

DR. ZIEMER: Others?
 

MR. MILLER: Richard Miller from Government
 

Accountability Project. 

DR. ZIEMER: Okay. Any comments?
 

MR. MILLER: Yes, indeed.
 

DR. ZIEMER: Comment, okay. 

Others?
 

MS. BROCK: Denise Brock from St. Louis,
 

Missouri. 

DR. ZIEMER: Denise, okay. 

MR. FIELD: Bill Field from the College of
 

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Public Health at the University of Iowa.
 

DR. ZIEMER: Okay.
 

Others?
 

MS. BROCK: This is Denise Brock again, and I
 

did want to make a comment as well.
 

DR. ZIEMER: Okay, I'll mark you down,
 

Denise. Thank you. 

Others?
 

MR. BARNES: James Barnes, Rocketdyne/Boeing,
 

Los Angeles.
 

DR. ZIEMER: Thank you.
 

Keep going.
 

UNIDENTIFIED: (inaudible)
 

DR. ZIEMER: I”m hearing a conversation. Is
 

somebody speaking? 

[No responses]
 

DR. ZIEMER: Any other members of the public
 

on this phone call that haven't indicated? 

MR. KOTSCH: Jeff Kotsch is here from the
 

Department of Labor. 

DR. ZIEMER: Okay. And I'll ask, in addition
 

to members of the public, any federal staff or
 

other agency staffers aboard?
 

MR. NAIMON: David Naimon from the Department
 

of Health and Human Services. 

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DR. ZIEMER: Okay, David.
 

MS. HOMOKI-TITUS: Liz Homoki-Titus from
 

Health and Human Services. 

MR. SUNDIN: Dave Sundin, NIOSH.
 

DR. ZIEMER: Okay. 

MR. KATZ: Ted Katz, NIOSH.
 

MS. HOMER: Cori Homer, NIOSH.
 

MS. ROBINSON: Teresa Robinson, Cambridge
 

Communications. 

MS. NEWSOM: Kim Newsom, Nancy Lee & 

Associates. 

DR. ZIEMER: Okay. Any other members of the 

public aboard that have not identified? 

MR. TANKERSLEY: This is Bill Tankersley from
 

Oak Ridge Associated Universities. 

DR. ZIEMER: Okay. 

Anyone else?
 

[No responses]
 

DR. ZIEMER: Okay. Then I'm going to -- it's
 

now just about 2:15, 2:14. I'm going to open the
 

public comment period, and Ms. Gonzales, I have
 

you first.
 

MS. GONZALES: All right. Is that Carmen
 

Gonzales?
 

DR. ZIEMER: Yes. And let me just look here. 

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So far I see one, two, three, four, maybe five
 

individuals who have indicated they wish to
 

comment. So I ask you to try to limit your
 

remarks to about five minutes.
 

MS. GONZALES: Sure. Okay. It will be less
 

than that. 

Good afternoon, gentlemen. My name is Carmen
 

Gonzales, and I am the daughter of Miguel Almada
 

(phonetic), who is deceased.
 

My father worked in Los Alamos for 34 years. 

Los Alamos National Labs is a facility that has
 

been known to have missing, incomplete, and in
 

our father's case inaccurate data in regards to
 

exposure records. In light of the alarming
 

discrepancies discovered in workers' files, it is
 

of the utmost importance that the Los Alamos
 

facility be included in the special cohort. 

Having said that, the other concern now is
 

that the number of cancers being considered for
 

that cohort are now being drastically altered. 

This leads me to believe that the compensation
 

act is becoming the selective compensation act. 

It appears that NIOSH and the Department of Labor
 

is working overtime to make changes that are not
 

claimant friendly, and seemingly
 

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unconstitutional. 

Is it possible that the purpose of these
 

changes is to eliminate as many eligible claims
 

and therefore lessen the cost to the federal
 

government? I ask you gentlemen, is this
 

(inaudible) viable? If your answer is yes, then
 

it is one more blow to the affected workers and
 

their families. 

And thank you, gentlemen, for your time.
 

DR. ZIEMER: Okay. Thank you, Ms. Gonzales. 

Then I have, I believe it's Mr. Silver, also
 

from Los Alamos?
 

MR. SILVER: Yes. Thank you very much for
 

including us in the conference calls.
 

I'm picking up where we left off last time, a
 

question was in the air as to whether the rule
 

would cover all 22 specified cancers. And one of
 

the Board members, I think Dr. Andrade, pointed
 

out that indeed the entire list is in Section
 

83.5. But there's also a clause in 83.13 that
 

allows NIOSH the discretion the limit the list of
 

specified cancers to as few as just one cancer. 

And I think it's important to think about
 

this in terms of our system of government, our
 

laws. I see this in a lot in different documents
 

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that we developed -- the Constitution, apparently
 

contradictory language in the Interstate Commerce
 

clause, and the States' Rights clause. And
 

that's really where the rubber meets the road,
 

how these apparently contradictory sections of a
 

legal document interplay with each other. 

In the Americans with Disabilities Act we
 

have reasonable accommodation, but on the other
 

hand we have business necessity, and the last ten
 

or twelve years we've seen how those two
 

competing ideas have defined the scope of
 

people's rights under the Americans with
 

Disabilities Act. So finally in this regulation
 

we see the list of specified cancers -- yeah,
 

there's 22 of them -- but we have this quite
 

objectionable clause in 83.13 to allow NIOSH to
 

hack down the list to as few as one cancer. 

Now what I want to know is where in
 

legislative history there is any justification
 

for that clause in 83.13. We followed this quite
 

closely since the summer of '99. We've read the
 

Congressional Committee hearing. We've studied
 

the Committee (inaudible). We followed with
 

great interest the floor debate and the floor
 

statements from Congressmen. And I can't find a
 

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single iota or shred of justification in the
 

legislative history for NIOSH to hack down the
 

list of specified cancers to as few as one. So
 

we'd really like to know the source document, the
 

page, (inaudible) for the justification you find
 

in the legislative history for that clause.
 

Thank you for your time and attention. 

DR. ZIEMER: Okay, thank you, Mr. Silver.
 

Then I also have Rich Miller. Rich?
 

MR. MILLER: Thank you, Dr. Ziemer.
 

During the last Advisory Board call there was
 

an extended discussion both about the definition
 

of what is a facility, but separately there was a
 

discussion about whether multiple facilities
 

could be included, regardless of how one defines
 

the term “facility.” 

And understanding that NIOSH staff at least
 

is taking the position that the Labor Department
 

is the one dictating this particular definitional
 

question of whether a single facility can be
 

multiple facilities, I undertook a little bit of
 

research. And what we've discovered is that
 

where there is -- where interpreting of
 

legislative enactment becomes an issue, the
 

courts commonly resort to the rules of statutory
 

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construction. 

And there are many different textbooks out
 

there for rules of statutory construction, and I
 

had the occasion to review five separate ones in
 

this matter in the law library and reviewing the
 

Internet. And in every single book which deals
 

with the rules of statutory construction, the
 

singular includes the plural. And in fact, most
 

drafting texts advise drafters to use the
 

singular when possible because it is understood
 

to include the plural. 

And we also see that, as I noted in the email I think I sent to you, Dr. Ziemer, and
 

hopefully was circulated to the Board, words of
 

one gender often include other genders, so that
 

when one refers to “he” one doesn't mean to
 

exclude “she.”
 

So I guess the question in front of us here
 

on the question of facility versus facilities
 

takes on a very practical effect. One of the
 

practical effects might be where you have what we
 

euphemistically refer to are sponges, people who
 

go into a job, take their annual dose in a day or
 

two or a week, and move on to the next job. And
 

yet you could easily conceive of a Special
 

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Exposure Cohort of individuals, not necessarily
 

construction workers but individuals who moved
 

from facility to facility to facility who had an
 

annual dose, but because of inadequate
 

recordkeeping or notification or management of
 

the rad system would have gotten cumulative doses
 

which may not be estimable, in which case you may
 

want to think about a multi-facility Special
 

Exposure Cohort. 

So I guess I would just urge the Board in
 

thinking about developing its comments for NIOSH
 

to consider the fact that the Department of
 

Labor's regulations allow for this very
 

circumstance at 20 CFR 30.214, which allows, for
 

example, accumulating days of employment at
 

multiple gaseous diffusion plants in three states
 

in order to meet the 250-day workday threshold
 

for the Special Exposure Cohort. 

And I'd be happy if anybody wanted to have
 

further conversation about this, but I don't
 

think the rules of statutory construction inform
 

this. And anybody who thinks because only the
 

singular was used in a bill strains, I think,
 

even the rules of strict construction about
 

whether you could allow for a plural to be
 

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construed from the singular.
 

The second point I would make is, very
 

briefly, is this question about limiting the list
 

of cancers. I had an opportunity to review, and
 

I hope the Board has as well, the comments of the
 

Health Physics Society with respect to the
 

question of whether you could limit the list of
 

cancers based on biokinetic models in a Special
 

Exposure Cohort. And I guess there's sort of two
 

points that the Health Physics Society makes
 

which may be somewhat at odds with the position
 

that this Board has taken.
 

And the first is that the effects we're
 

dealing with here are stochastic effects and not
 

deterministic effects. And early on, I believe
 

it was the very first Advisory Committee, the
 

Board said it was not going to open up that
 

quagmire of whether or not there is a no
 

threshold dose for the effects of radiation. And
 

if you're not going to open up that particular
 

debate, I don't know where the scientific
 

justification comes from that says that there is
 

a cutoff point beneath which one could reasonably
 

estimate that certain cancers should or should
 

not be included. 

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The second question I guess you have to
 

grapple with is the question that Ken Silver
 

raised, which is I had the chance at least to go
 

back and read the legislative history on this
 

deal as well, and I can find nothing that
 

authorizes NIOSH to limit the list of covered
 

cancers. And I had the chance to go talk with
 

the key Senate staffers who actually worked on
 

the conference on this bill on both sides of the
 

aisle and in both the House and the Senate, and
 

they in no way, shape, or form could recall any
 

such discussions. And it seemed to stretch their
 

credibility -- or credulity a little bit to think
 

that this is how the rule was going to be
 

interpreted. 

So I guess the question is if you're going to
 

shorten the list of cancers because you think
 

that this is good science, then I think the Board
 

needs to be prepared to say it is going to
 

jettison the no threshold hypothesis that the
 

Board has previously said it would not question. 

Otherwise, I don't know at what level you
 

determine significance for the level of a
 

potential dose that you can't estimate to begin
 

with in the special cohort rule.
 

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Those are my thoughts.
 

DR. ZIEMER: Okay, thank you, Richard.
 

Then I have Denise Brock, isn't it?
 

MS. BROCK: Yes, hi. How are you? 

DR. ZIEMER: From St. Louis.
 

MS. BROCK: I would probably like to continue
 

on where Richard left off, in the same manner
 

that I'm feeling that Congress was pretty clear
 

with their intent when they said 22 cancers. And
 

I'm a bit perplexed at how someone else could go
 

in and actually alter that and make it more
 

organ-specific. It seems to be all about
 

etiology, not science. 

And I'm really not understanding how the 22
 

cancers could be dropped down to organ-specific
 

if you would say someone would be exposed to
 

radon progeny, how can anyone say there would be
 

a zero probability that maybe there wouldn't be
 

daughter products that would come off of that and
 

not just hit the lung but perhaps the pancreas,
 

the colon. I'm not a doctor, but my concern
 

there would be, as the lady said earlier, that
 

it's just making something that's difficult
 

already impossible. It's actually adding insult
 

to injury.
 

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And then I was looking at the DOL law, and I
 

found under Section 738(4)(d) the purpose of this
 

program actually, it's my understanding, would be
 

to provide for timely, uniform and adequate
 

compensation of covered employees, and where
 

applicable survivors of such employees, suffering
 

from illnesses incurred by such employees in the
 

performance of their duties for the Department of
 

Energy and certain contractors or subcontractors. 

And when you think about timely and you're
 

looking at some of these situations where there
 

hasn't been a site profile done yet or you have
 

loss of records, destruction of records, or even
 

in the case of Mallincrodt in the St. Louis and
 

Weldon Spring areas as well as Hematite, when you
 

have a situation where these workers were exposed
 

to things they were never monitored for, my
 

concern would be how would it be possible to even
 

dose reconstruct it? And I know it's NIOSH's
 

feeling that that's possible. I'm not an expert,
 

so I obviously don't know. But I'm assuming that
 

according to maybe the majority of the Board that
 

they feel that that would not be feasible.
 

Then when you looked under Part B, Program
 

Administration, I started looking under the
 

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definitions, and it actually has the term
 

“specified cancer” or the term “member of the
 

SEC.” And what that means, the term
 

“occupational illness” and what that means, and
 

it does cover beryllium illness, cancer,
 

specified cancer, chronic silicosis. And I guess
 

my concern would be how could that be changed. 

And again, with facility versus facilities,
 

in our area we have workers that had went from
 

the downtown site, a lot of those workers perhaps
 

moved into the Weldon Spring site. Maybe they
 

did 200 days at the downtown and maybe 50 at
 

Weldon or 50 at Hematite. My concern here is if
 

they're using the same process (inaudible) or
 

doing the same job, how would that not allow them
 

the 250 days? 

And again, I'm trying to see -- I think I had
 

this section written down, and I think I had
 

brought this up in Cincinnati. There's a
 

section, I believe it was 83.7, incident and
 

occurrence. And I'm curious how specific one
 

must be if NIOSH, if I understood correctly, was
 

wanting two witnesses to any occurrence. Most of
 

these workers are dead. I mean, they were told
 

not to discuss the specifics of their jobs. 

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Surviving spouses may not know anything but that
 

their spouse had been injured or possibly
 

hospitalized. And I think we know that most of
 

these hospital records have been destroyed after
 

ten years, and maybe the only proof is the story
 

that the decedent relayed to them, or maybe a
 

list of occurrences in the atomic energy industry
 

that would just perhaps show the plants or the
 

area and the year, but maybe no names on who was
 

involved. And I'm curious at what point would
 

somebody say that they're going to take somebody
 

at their word. 

And with 91 pages, is what I read, just as a
 

layperson I feel like I have to read that and
 

disseminate that to all these people. Again, it
 

just feels like it's absolutely overwhelming. 

And you're making something that seemed to me
 

Congress' intent was crystal clear, and now it
 

seems to me that the easiest way to remedy it in
 

our situation would be to actually have it
 

legislated (inaudible) a petition for it if it
 

seems much too difficult.
 

Thank you.
 

DR. ZIEMER: Okay, thank you, Denise.
 

Those are all that ­

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UNIDENTIFIED: Excuse me -­

UNIDENTIFIED: Excuse me -­

DR. ZIEMER: Yes?
 

UNIDENTIFIED: There's two more speakers here
 

that would like to speak.
 

DR. ZIEMER: Oh, okay. Who is it?
 

MS. JACQUEZ: My name is Epifania Jacquez. 

Shall I spell that for you? 

DR. ZIEMER: Yes.
 

MS. JACQUEZ: E-P-I-F-A-N-I-A, Jacquez, J-AC-Q-U-E-Z. And I'm calling -- I'm what is known
 

as a survivor in this package (inaudible). And
 

so I'm calling again on behalf of my dad
 

(inaudible) Los Alamos (inaudible). And of
 

course, we're calling (inaudible) -­

MS. NEWSOM: Excuse me, ma'am. You're
 

breaking up, and I can barely hear you. 

MS. JACQUEZ: Well, I'm speaking about as
 

clearly and loud as I can. Can you hear me now?
 

MS. NEWSOM: Thank you. That's a little
 

better.
 

MS. JACQUEZ: Okay. And so anyway, they're
 

(inaudible) over 10,000 claims. And claimants, I
 

think this point was brought up before, that the
 

claimants were not notified about any changes in
 

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this law. And as far as I'm concerned this is
 

not acting in a respectful manner towards the
 

claimants, and (inaudible) not allowing them to
 

voice their opinions. So I call it (inaudible). 

This program has not been claimant (inaudible). 

It was supposed to be. It claimed to be claimant
 

friendly, but it has not (inaudible). 

UNIDENTIFIED: I can't hear.
 

UNIDENTIFIED: I can't hear her.
 

MS. JACQUEZ: And this Act -­

MS. ROBINSON: I'm sorry. I cannot hear a
 

thing she's saying. This is Teresa from -­

MS. JACQUEZ: You want me to (inaudible)? 

DR. ZIEMER: The recorder is having
 

difficultly hearing you. You'll need to speak
 

very loudly. 

MS. ROBINSON: If she is on a speaker phone,
 

ask her to please pick up.
 

MS. JACQUEZ: Let me switch phones, okay? 

DR. ZIEMER: Yeah.
 

MR. ELLIOTT: There's also a background
 

conversation going on that I would ask be
 

stopped.
 

MS. ROBINSON: Yes. I hear that, too.
 

MS. JACQUEZ: Are we not supposed to have
 

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anyone in the house? I'm just curious. I'm at
 

home. I'm calling from home.
 

DR. ZIEMER: No, that's fine.
 

MS. ROBINSON: Now I can hear -­

MS. JACQUEZ: I hope so, because I didn't ask
 

anyone to leave. So if you are hearing a
 

comment, my sister and I are here. We're both
 

survivors.
 

MS. ROBINSON: And ma'am, if you could please
 

repeat your name again for me.
 

MS. JACQUEZ: Epifania Jacquez, E-P-I-F-A-NI-A, Jacquez, J-A-C-Q-U-E-Z. 

And I'll start by saying that I am a
 

survivor. And that I'm calling in regards -­

this is in regards to my father, Miguel
 

(inaudible) Almada, worked at Los Alamos for 34
 

years, and who died from esophageal cancer. And
 

I'm calling in regard to this proposal, you know,
 

to change this cancer relief. 

And I want to start by saying that there are
 

over 10,000, and claimants were not or have not
 

been, myself have not been notified of any
 

changes. And I believe that that lacks a lot of
 

respect. I'm just voicing my opinion, but it
 

lacks a lot of respect by not allowing claimants
 

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to voice their opinions. And to me this section
 

of this law, this program, has not been claimant
 

friendly. (inaudible) thought to be (inaudible)
 

beginning, but (inaudible). 

And the Act was centered around the cancers,
 

22 cancers were named (inaudible) acceptable
 

(inaudible) started the program. One of these
 

cancers was esophageal cancer, which (inaudible)
 

died of. How can you even consider removing this
 

from the requirement after three years? Even if
 

it applied to (inaudible), as far as I'm
 

concerned if you were included originally in the
 

Special Exposure Cohort, all you had to do was
 

(inaudible) was prove exposure. 

This is not fair to claimants, it's not fair
 

to their families. It is not acceptable. We
 

demand you obliterate this rule. In my opinion
 

it's not constitutional. In the law which was
 

signed by President Clinton, by then President
 

Clinton, it's a law. Do not turn yourselves into
 

lawmakers because you are not. 

And I think that we're right now calling this
 

a conference call, and we're calling to give an
 

opinion or a comment, but it also (inaudible). 

And (inaudible) the answers to these questions
 

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that we're asking on these issues. We're not. 

We're not. We're just expressing what we feel. 

But I think that we need to get some answers, and
 

I think there aren't any answers to justify what
 

(inaudible). There are no answers. 

No answers, well, you know, you can just -­

how many people, how many of these 10,000 people,
 

are aware of this conference call today, call in
 

and voice their opinion? I think we're -- you
 

know, it's what I have heard before, one of my
 

sisters expressed, you know, it's like we're
 

(inaudible). 

It all goes back to money. That's what it
 

is. It goes back to money, goes back to power. 

It goes back to the fact that we're not that
 

important. I'll tell you one thing, it's a shame
 

that our government goes back on their word. I'm
 

proud to be an American, but I want our
 

government to stand behind (inaudible) and
 

deliver the goods that they promised. 

So I want you to think about this. I don't
 

know if it's at all possible, because I know that
 

your Board is there and they're listening to it. 

You have the answers. I'd like a little bit of a
 

response to the comments that's been made. And
 

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thanks.
 

DR. ZIEMER: Okay, thank you. 

And was there another person -­

MS. SHINAS: Yes, and I apologize for being
 

late. I wasn't able to get here when you started
 

the meeting. 

My name is Betty Jean Shinas, and I'm the
 

daughter of Miguel Almada, and I am a survivor. 

And I just basically wanted to say that the
 

numbers that are calling in today are not really
 

a true reflection of the families that would be
 

affected by the change that you're proposing to
 

make. And I just really, I strongly support the
 

idea, please think about abiding by the spirit of
 

the law that was passed three and a half years
 

ago by President Clinton, and to not change
 

(inaudible). 

And many of our families, especially my dad
 

with his records, there was not -- the dose
 

readings were missing. Three of those years were
 

missing. And to exclude many of those cancers,
 

these families are not going to be compensated in
 

any way. And I really truly want you to take to
 

heart what you are considering. And I'm here to
 

support all of these comments in support of not
 

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changing it. I am truly, truly in support of
 

these comments. Just leave it as it is. It was
 

done to try to compensate families, and the
 

change would really be a disservice to all these
 

families.
 

Thank you.
 

DR. ZIEMER: Okay, thank you. 

We still have a couple of minutes if there
 

are other members of the public who have
 

comments. 

UNIDENTIFIED: Hello? 

MS. TRUJILLO: Hello? 

UNIDENTIFIED: I signed on. 

DR. ZIEMER: Okay. Who is speaking?
 

UNIDENTIFIED: (Inaudible) 

MS. TRUJILLO: This is Gloria -- oh, I'm
 

sorry. Is there someone else?
 

UNIDENTIFIED: That's okay, go ahead.
 

DR. ZIEMER: There appear to be two of you. 

UNIDENTIFIED: Yeah, go ahead.
 

DR. ZIEMER: Gloria, go ahead.
 

MS. TRUJILLO: I'm Gloria Trujillo.
 

MS. ROBINSON: What's your name again?
 

MS. TRUJILLO: Gloria Trujillo, and that's G­

-L-O-R-I-A, and that's Trujillo, T-R-U-J-I-L-L-O. 

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And I'm also a survivor claimant. 

And it's my understanding that NIOSH intends
 

to make a change in the qualifying cancers for a
 

Special Exposure Cohort. I'd like to express my
 

strong disagreement to these changes. I feel
 

this is very unfair to all claimants including
 

survivor claimants. How can NIOSH make a
 

decision that discriminates one claimant's
 

qualifying cancer type requirement from another
 

because they are in one qualifying group or
 

another? 

The law that was enacted originally with all
 

the qualifying cancers should be adhered to by
 

NIOSH. It's my opinion that to do otherwise
 

would raise the question whether this is
 

unconstitutional, and whether NIOSH has the
 

authority to change this rule at all. That's
 

mainly what I was calling about. I strongly
 

disagree. I feel that it should be (inaudible)
 

adhere to the original law that was enacted three
 

years ago.
 

DR. ZIEMER: Okay. Thank you, Gloria.
 

And there's one other gentleman? 

UNIDENTIFIED: George.
 

DR. MCKEEL: Yeah, this is Daniel McKeel. 

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I'm a physician and a pathologist who has been
 

advising and helping Denise Brock and the group
 

in St. Louis for the Mallincrodt chemical
 

workers. 

My comment is, number one, to express
 

interest in this issue and to also comment as a ­

- specifically as a pathologist. It seems to me
 

that the scientific basis for disallowing various
 

kinds of cancers as possibly being caused by
 

radiation exposure is really terrifically
 

unsound, that it is very well known if you read a
 

book like the Fajardo/Anderson Radiation
 

Pathology book that came out two years ago, that
 

every bodily system can have radiation-induced
 

cancer. So that's the first thing, to object to
 

the scientific basis for excluding cancer.
 

The other comment is that I have had actually
 

three or four years' experience with dealing with
 

the health related data of the Mallincrodt
 

workers, and to make this very short, just to say
 

that I've had extraordinary difficultly getting
 

from Department of Energy through Freedom of
 

Information Act requests any really usable
 

medical data on these patients, much less on
 

their -- including actually requests about their
 

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death certificate information. 

So I would strongly support the idea for this
 

group, at least, that the special cohort
 

mechanisms are the way to go, because I doubt
 

seriously, unless some new evidence is
 

forthcoming, that the doses that they really
 

received could be accurately reconstructed. And
 

we don't have time to go into that more, but I
 

just wanted to say that. 

So I'm very interested. I'll keep tuned to
 

what's going on. And if there's any way I can
 

help, I'd certainly be happy to do that. 

DR. ZIEMER: Thank you, doctor.
 

MS. NEWSOM: Excuse me, Dr. McKeel. Could
 

you spell your last name, please? 

DR. MCKEEL: Yes. It's M-C-K-E-E-L, first
 

name is Daniel.
 

MS. NEWSOM: Thank you. 

DR. MCKEEL: Thank you.
 

DR. ZIEMER: Thank you. 

Was there another person?
 

UNIDENTIFIED: Yes, this is George -­

UNIDENTIFIED: Yes, there is.
 

DR. ZIEMER: I'm sorry?
 

MR. BARRIE: This is George. I'm a sick
 

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worker. 

DR. ZIEMER: George, did you give your last 

name? 

MR. BARRIE: Barrie, B-A-R-R-I-E. 

And first of all, I'd like to thank the
 

Health and Human Services for listening to the
 

Board and public, and agree to extend the comment
 

period from May 6, 2003. 

The reason I am interested in this rule is
 

that I have three precancerous conditions now. I
 

am not dead yet, okay. From what I understand,
 

the rules as they stand now say that NIOSH can
 

limit the cancers in certain classes of workers
 

from the 22 legislated by Congress. Am I correct
 

in my understanding that this means that myself,
 

a machinist from Rocky Flats who worked there
 

almost ten years, who ingested plutonium and
 

americium, could potentially be limited to, for
 

instance, just lung cancer? If I develop cancer
 

in my stomach, which I have chronic atrophic
 

gastritis which is directly related to a chemical
 

or radiation ingestion per Merck's Manual, even
 

though that it is a covered cancer, that I might
 

not be compensated? 

That is beyond not being fair. That is
 

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idiotic. And I'd just like -- I just get all
 

this anger coming up. It's like, what do you
 

guys mean? Twenty-two cancers legislated from
 

EEOICPA for Special Exposure Cohort, I personally
 

think that there needs to be more cancers and
 

diseases covered. Please do not limit any class
 

to any specific cancer, because you know as well
 

as I do if you ingest any specific radiation it
 

might decide to go to your kidney, and then
 

decide to pick up and go to some other organ or
 

some other part of your body. 

And I'm experiencing that kind of thing. You
 

can't just say it's going to go there, because it
 

went to my kidneys, it went to my liver, and it
 

went -- apparently I'm not supposed to have any
 

kind of lung burden, but yet I'm on C-PAP, and
 

they can't explain it. 

So please, understand that we don't know
 

enough about radiation, and we probably never
 

will know enough about radiation. And this is
 

strictly a personal thing, and you can't begin to
 

even lie about something like this. And you need
 

to kind of have a little bit of trust in all of
 

these workers and survivors. We can't even come
 

up with something this outrageous and be a lie
 

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(inaudible). 

So please, treat us professionally. That's
 

all I've got to say. And I'm really sorry, but
 

I'm just -- I'm getting worse each day, and I
 

have all kinds of problems with the joint spacing
 

in my bones. And it's just -- it's really bad. 

It's a mess. And I'm not going to cry or give
 

you a pity-pot here, but I just want you to know
 

that it's not getting better for us. And I
 

appreciate you dealing with it.
 

UNIDENTIFIED: Where were you working when
 

you ingested plutonium and americium?
 

MR. BARRIE: Rocky Flats. And I have
 

documentation, and I have some documentation, but
 

I've had other nasal smears taken from downdraft
 

tables that I've worked on and they were
 

conveniently lost. 

And I just get really angry about all this
 

stuff. And I try and keep my composure, but when
 

I have a chance like this to speak my emotions
 

take over. And I want to apologize if they've
 

taken over too much on you guys. I really like a
 

lot of you people that have been working with us
 

like Mr. Silver and Mr. Miller, and would like to
 

say hi to everybody else that's on the phone. 

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And please understand my emotions, and that's
 

probably about all I've got to say.
 

UNIDENTIFIED: How long did you work at Rocky
 

Flats?
 

MR. BARRIE: Almost ten years. I've machined
 

alloys that I can't even discuss still. So I
 

can't even get into anything more.
 

DR. ZIEMER: Thank you, George, for those
 

comments.
 

Now our thirty minutes of public comment
 

period has now elapsed, and we're going to -­

MR. BARRIE: I'm really sorry.
 

DR. ZIEMER: That's all right. 

And we're going to move on to the Board's
 

discussion at this time. As I indicated earlier,
 

if we complete the Board's discussion before the
 

5:00 o'clock period, we will certainly allow
 

additional time for other public comments. 

But it's important that the Board now has
 

some time to deliberate. Everybody is welcome to
 

listen in to the deliberations. These are public
 

deliberations. We simply ask members of the
 

public to listen. This is not a time where we
 

have an interchange with the public, but you're
 

certainly welcome to listen to our own
 

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deliberations as we proceed. 

Board members, I do want to ask you all, is
 

there anyone on the Board that does not have the
 

Federal Register actual version rather than the
 

90-page version of the proposed rulemaking? 

Because I would like to operate now out of the
 

Federal Register version if we can. That should
 

also be helpful to any members of the public who
 

have downloaded it.
 

UNIDENTIFIED: How many pages is that? 

DR. ZIEMER: The Federal Register version is
 

maybe 14 or 15 pages.
 

UNIDENTIFIED: (inaudible)
 

MR. GIBSON: Dr. Ziemer, this is Mike. I do
 

not have that with me.
 

DR. ZIEMER: Okay. Well, Mike, I'll try to
 

stick to dealing with section numbers and so on. 

Actually I do have my other copy with me, so we
 

can go back and forth if we need to.
 

MS. MUNN: This is Wanda.
 

DR. ZIEMER: Yes, Wanda.
 

MS. MUNN: I have not -- I didn't download
 

the Federal Register -­

DR. ZIEMER: Okay, so you're still working
 

off the other version, then?
 

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MS. MUNN: I'll try while we're talking to go
 

to the -­

DR. ZIEMER: Well, it may not be necessary. 

I'll try to make sure that in each case we know
 

which section and paragraph we're working on.
 

MS. MUNN: All right. I had just assumed
 

that we -­

DR. ZIEMER: At the end of the last meeting
 

we had gone up through Section 83.12, and it was
 

indicated to the Board that we would open our
 

deliberations with Section 83.13. That's in the
 

original sort of typewritten version that began
 

on page 79. In the Federal Register version that
 

section begins on page 11308 in the middle
 

column. And the title of the section is, How
 

will NIOSH evaluate petitions, other than
 

petitions by claimants covered under 83.14? 

Does everybody have the section that we're
 

talking about?
 

UNIDENTIFIED: Yeah.
 

DR. MELIUS: Dr. Ziemer, this is Jim Melius. 

Just a reminder, Tony Andrade and I also did
 

prepare and circulate something on the issue of
 

facility, which refers -­

DR. ZIEMER: Right. And we will return to
 

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those earlier sections. That actually was an
 

outgrowth of the section on -- Section 83 -­

well, it was the section on definitions actually,
 

definition of facility. 

DR. MELIUS: Right.
 

DR. ZIEMER: And we will return to that.
 

This Section 83.13 had several issues that we
 

flagged before. 

One issue was more of the rewording issue on
 

section -- let me get the right number here -- it
 

would be paragraph (a) -- no, I'm sorry,
 

paragraph (b), Arabic (1), Roman numeral (iii),
 

and I believe Wanda had a concern about the
 

wording of that paragraph. It currently says: 

“In general, access to personal dosimetry
 

data and area monitoring data are not necessary
 

to estimate the max radiation doses.”
 

Wanda, that was -­

MS. MUNN: I believe I provided all of you
 

with a suggested wording, more simplistic
 

revision of wording. Did everyone get that or
 

not?
 

DR. ZIEMER: Do you have that wording there,
 

Wanda?
 

MS. MUNN: Yes, I do.
 

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DR. ZIEMER: Could you read the wording for
 

the record, that you're proposing?
 

MS. MUNN: Yes. The suggested wording was: 

“In general, access to personal dosimetry and
 

area monitoring data is not a defining factor
 

that must be available in order to estimate the
 

maximum radiation doses which could have been
 

incurred by any member of the class.”
 

UNIDENTIFIED: (Inaudible) 

DR. ZIEMER: Do you want to read that once
 

again, then?
 

MS. MUNN: Yes. 

“In general, access to personal dosimetry and
 

area monitoring data is not a defining factor
 

that must be available in order to estimate the
 

maximum radiation doses which could have been
 

incurred by any member of the class.”
 

DR. ZIEMER: And this is not intended to be a
 

change in the intent of the paragraph so much as
 

a change in how it's expressed.
 

MS. MUNN: It's intended to be clarifying
 

language only.
 

DR. ZIEMER: With clarity.
 

Do any of the Board members object to
 

recommending that change in language? 

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[No responses]
 

DR. ZIEMER: Okay. If not, we'll consider
 

that agreeable. 

Now the other thing I had flagged -- and this
 

is the item that we've heard a number of comments
 

on -- is the very next paragraph, would be Roman
 

numeral (iv), that says: 

“If NIOSH determines that it is not feasible
 

to estimate radiation doses with sufficient
 

accuracy, it will also determine whether such
 

finding is limited to radiation doses incurred at
 

certain tissue-specific cancer sites, and hence
 

limited to specific types of cancers.”
 

And I had simply flagged that, that that was
 

an issue that the Board wished to discuss
 

further. We've heard some comments from members
 

of the public on this. We've heard some comments
 

from NIOSH staff on the thinking behind this. 

And it has to do with whether or not if you can
 

demonstrate, even though there may be unknown
 

doses, if you can demonstrate that in fact
 

certain organs were not actually exposed, then
 

would you then allow cancers to be included if
 

you could show that particular organ was not
 

exposed, even in the cases where the dose to
 

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other organs were unknown? And I would like to
 

sort of open this for general discussion, if
 

Board members have any questions on this. 

MR. GIBSON: Dr. Ziemer, this is Mike Gibson. 

DR. ZIEMER: Yeah, Mike. 

MR. GIBSON: I have one example I'd like to 

give to you. 

The biokinetic models for tritium exposure is
 

known. However, folks that have worked around
 

tritium systems and tritium labs, taken apart
 

pipes, fixing that, tritium can actually adhere
 

itself to the rust in the pipes, and then it
 

becomes embedded in that rust. And when that
 

pipe is cut out or taken out, it can become an
 

airborne particulate that is lodged in the lung
 

as an ingestion rather than an absorption in the
 

skin. And that metal is insoluble, so therefore
 

that tritium sits and radiates the lung tissue
 

rather than following the biokinetic model that
 

tritium would have by skin absorption. 

So there's probably different processes with
 

different isotopes that once things happen
 

throughout the years, how can we really know that
 

it was going to be (inaudible) specific organ or
 

part of the body?
 

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DR. ZIEMER: I don't know whether you're
 

asking that as a rhetorical question, Mike, or if
 

you're asking someone to comment on it
 

specifically. 

Obviously the people who attempt the dose
 

reconstruction would initially have to determine
 

whether or not in such cases the tritium in fact
 

continued to stay with the metal in the body or
 

whether it didn't. Tritium normally would be
 

considered a whole body -- distributed whole
 

body, and therefore all organs would be subject
 

to it. And so you'd immediately have your list
 

of 22 right away, unless you could somehow show
 

that there's no way it could have detached
 

itself.
 

MR. GIBSON: Well, Mound's had quite a
 

history of this, not only from certain projects
 

(inaudible) were classified where they actually
 

used tritium and embedded it in certain metals. 

But just from naturally-occurring rust, people
 

were never monitored for that. So you have not
 

only the insoluble metal dosing the lung for
 

however long you have the toxicity of whatever
 

type of metal the pipe may have been made of.
 

DR. ZIEMER: Right, right. Well, I'll just
 

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comment without looking at this closely, but -­

and of course tritium is known to adhere to
 

metals, but there are virtually no cases where it
 

doesn't exchange with surrounding water
 

molecules. So one would expect that that would
 

end up with a whole body exposure in any event. 

So it would be hard for me to see in that case
 

where you would end up excluding any organs. But
 

that's just sort of top of the hat. I think one
 

would have to take specific cases and analyze
 

them.
 

As I thought about this -- and let me just -­

we can think about certain examples, and my guess
 

is in most cases you're not going to have -- it
 

would be very hard to find a condition where you
 

had complete restriction. 

But as an example, suppose you were able to
 

show that there was a class of workers who did xray diffraction work -- a commonly used
 

analytical tool, by the way -- and the x-rays
 

from x-ray diffraction units are of such low
 

energy that you simply can't physically irradiate
 

any of the deep organs. You can irradiate the
 

skin and the lense of the eye. You simply -­

it's physically not possible to deliver dose to
 

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any deep organs. So I asked myself, well, what
 

would you do if you had a class of workers in
 

that category? In other words, would you say,
 

well, okay, let's certainly consider skin
 

cancers, but if it's not possible to deliver dose
 

to, say, the spleen by this mechanism, then why
 

would you include it? 

I just ask that rhetorically. And the thing
 

is, you can think of a lot of special cases. You
 

might think of cases where maybe extremities only
 

were exposed. You don't know what the exposure
 

is, but you knew that there was some kind of a
 

limit on what was done. That's the scientific
 

question. I think the sort of political question
 

and the history of the rulemaking -- or not the
 

rulemaking, but the legislation, is kind of a
 

different issue. 

But technically speaking, it seems like one
 

could conjure up cases where it might not be
 

possible in a -- I mean, I sort of look at it
 

this way. In any event, you -- not all exposures
 

deliver dose to all organs, number one. And
 

number two, you may not know the dose with
 

certainty to some set of organs, but you still
 

can't defy the laws of nature in terms of what
 

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organs could be exposed in a particular case if
 

you knew something about either the nuclide or
 

the nature of the exposure, even if you didn't
 

know the total dose. 

So I'm just kind of throwing out ideas here
 

so that I can stimulate your thinking. I want
 

you to come back against me on this and challenge
 

it. 

DR. MELIUS: Okay. It's Jim Melius. 

DR. ZIEMER: Yeah, Jim. 

DR. MELIUS: I guess my problem with it is I 

can think of those examples, but when I think of
 

(inaudible) also examples where we could be able
 

to estimate the dose.
 

DR. ZIEMER: Maybe, maybe not.
 

DR. MELIUS: Well, I just find it hard to
 

come up with the example where (inaudible) not
 

going to be able to estimate the dose, especially
 

given the criteria that they (inaudible) here. 

And then we would want to somehow (inaudible) so
 

they would be able to have enough information to
 

limit the organ systems affected in some way,
 

whether it be by exposure or some other factor. 

And what I worry about is if we try to -­

because we're trying to go through, we're going
 

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to have a list of whatever, 20-some cancers to go
 

through, and we're going to have to try to figure
 

out which ones are maybe affected or not in a
 

situation where we're not going to have enough
 

information or we have very little information
 

about the exposure. And I wonder how we're going
 

to -­

DR. ZIEMER: Well, in those cases the less
 

you have the more organs you'd have to include. 

I think that gets more like the uncertainty
 

issues in the regular cases. I just think about
 

things like, for example, there's a limit to how
 

much, if you were talking about inhaling
 

something like uranium, there's a limit to how
 

much mass you can actually put in the lungs. So
 

you could, yeah, get an upper limit in one sense
 

for a lung dose, and could say, okay, how much of
 

this material, if you could physically get this
 

much into the lungs, what would the dose to other
 

organs be? I mean, you can do that exercise.
 

DR. MELIUS: But then why couldn't you also
 

calculate a maximum dose in that situation? 

DR. ZIEMER: Well, you could only in the
 

sense that it would be -- it might be an
 

outlandish dose, and it would be -- you wouldn't
 

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know whether it was something between, let's say
 

-- I don't know, I'd have to pick out a number -­

but between zero and some outlandish figure. So
 

yeah, in that sense you might be able to
 

(inaudible) it. 

But is that a dose reconstruction? You would
 

certainly pay off for a lung cancer. The
 

question is, would you for other organs if you
 

could show that even in that worse case you
 

couldn't deliver doses to the other cancers
 

(sic). You're saying that that wouldn't be a
 

Special Exposure Cohort, then?
 

DR. MELIUS: Yeah, that you've been through a
 

maximum dose in that situation. 

DR. ZIEMER: I see.
 

DR. MELIUS: And I think the -- at least
 

(inaudible) -- and I actually think we should go
 

back and discuss that, because I have some
 

(inaudible) how they define that. 

But assuming we were using that definition,
 

(inaudible) think that situations where we're not
 

going to be able to define a maximum dose are
 

going to be situations we're going to have so
 

little information that (inaudible) about a
 

source or sources of exposure or how people
 

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worked in there, whatever, that there will be so
 

little information that I don't see how we could
 

then have, would then have enough information to
 

be able to limit organ systems involved. But
 

whether it be due to an exposure possibility
 

issue or some other plausibility issue here that
 

(inaudible) then they could calculate which
 

cancers would be, could be included and which
 

shouldn't. 

And I guess I worry that we end up making
 

either very arbitrary decisions about what gets
 

included or not included without any basis for
 

doing that, any way, any sort of rational basis
 

for making that cutoff.
 

DR. ROESSLER: This is Roessler. 

Just to kind of continue this and expand on
 

the not defying laws of nature, I think, Jim,
 

that there are some fairly clear-cut ways of
 

doing this. 

And one of the examples that I think came up
 

early on in our discussions was to look at the
 

organ that's being considered to be in a class or
 

not. And if you look at that organ and you say
 

what kind of a dose would it take, and you have
 

to go back to the compensable definition, what
 

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kind of a dose would it take to make that organ
 

compensable? Then if you -- let's say it's the
 

thyroid, and the particular case I think that was
 

used was plutonium 238 to the thyroid. Then if
 

you go back and you say, well, what kind of a
 

dose would it have taken to the lung? We don't
 

know the dose, we can't reconstruct it. What
 

kind of a dose would it take to the lung in that
 

situation? 

And I come up, by running some numbers and
 

using dose coefficients, I come up with something
 

like 5,000 rems to the lung. Well, that defies
 

the laws of nature. In order to have that kind
 

of a big, that big a dose to the lung, the person
 

would not have lived through it. So there's some
 

pretty clear-cut things that I think could be
 

done.
 

MR. GRIFFON: This is Mark Griffon.
 

I think, Gen -- just to pick up on Gen's
 

point -- I think you just made a very interesting
 

point. You're basically saying that they are
 

using IREP in this thing, or that it is the
 

underlying principle -­

DR. ROESSLER: Not really, no.
 

MR. GRIFFON: Because I agree -- huh?
 

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DR. ROESSLER: Not really IREP, but -- well,
 

using the compensable definition, and then using
 

the -- some basic science to -­

MR. GRIFFON: Well, I mean if you go back to
 

page 13, the question I have from the preamble. 

And this is the old version -- I'm sorry, page 15
 

in the old version. The preamble discusses -­

DR. ZIEMER: It's the section called Accuracy
 

of Dose Reconstruction under Summary of Public
 

Comments, Roman numeral III, Item B. Is that the
 

section? That's page 13 in the old version.
 

MR. GRIFFON: I'm sorry, it's actually page
 

15.
 

DR. ZIEMER: Okay. 

MR. GRIFFON: So it's under the same section,
 

Accuracy of Dose Reconstruction.
 

DR. ZIEMER: Right.
 

MR. GRIFFON: Yeah, over on page 15, in the
 

paragraph starting -­

DR. ZIEMER: In the Federal Register version
 

it's -- I'll pull it out here for the benefit of
 

those using the Federal Register version -- it's
 

page 11296, I believe, under Accuracy of Dose
 

Reconstruction. And it's the paragraph that
 

starts out, “The Health Physics Society?”
 

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MR. GRIFFON: Right. And about halfway down
 

that paragraph they talk about radon progeny or
 

uranium, only concentrate or -- and significantly
 

irradiate. 

And I think Gen is getting at that definition
 

of “significantly.” Is that triggered by
 

compensable, which I see as just a back door way
 

to get IREP in this thing? But that's my
 

opinion. So I guess that's a question to NIOSH: 

What do they mean by “significant”? What is a
 

significant dose? 

I agree with what Gen said and with what Jim
 

Neton has told us earlier, that you get an
 

exposure to the lung from uranium, the
 

predominant organ might be the lung, but other
 

organs will get some dose. Then at what level is
 

this cutoff of significance? Is it based on the,
 

more likely than not, under the IREP POC model? 

Or are they using some other metric to determine
 

significance there? I guess that's what's not
 

clear within this new structure, to me anyway.
 

DR. ROESSLER: An incident I gave as an
 

example is one example that I tried to think
 

through as to where this would apply. And I
 

guess, too, I would like some clarification on
 

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some of the wording here and how the process
 

actually would work. Is what I'm saying a
 

reasonable scientific process? I think it is,
 

but I'd like to hear more from NIOSH on this.
 

MR. GRIFFON: And the question with Paul,
 

with -- this is Mark Griffon again, I'm sorry.
 

Paul, with your example, I just -- I'm
 

sitting here wondering myself -- and I'll just
 

throw it out since we're discussing it -- but I
 

wonder if in your x-ray diffraction example if
 

you knew the individual's exposure, how is that
 

currently handled in the IREP model? And are all
 

organs at least considered to have some potential
 

probability? I don't know the answer -­

DR. ZIEMER: Well, I think in the current
 

IREP model the energy is plugged in -­

MR. GRIFFON: Right.
 

DR. ZIEMER: And Jim would have to help me
 

here, but once you plug the energy in you
 

calculate doses to the individual organs, much
 

like you would do for a beta emitter.
 

MR. GRIFFON: Right, I guess my question -­

DR. ZIEMER: If it's a deep-lying organ,
 

you're not going to find -- you know, let's say ­

-

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MR. GRIFFON: So are those probability curves
 

zero? That's my question on those.
 

DR. ZIEMER: Yeah.
 

MR. GRIFFON: I guess they would be, but I'm
 

not sure. I haven't done that exercise in IREP. 

But I think we'd want to certainly be consistent
 

with that. 

MR. ELLIOTT: Dr. Ziemer?
 

DR. ZIEMER: Yeah.
 

MR. ELLIOTT: This is Larry Elliott.
 

DR. ZIEMER: Yeah, Larry.
 

MR. ELLIOTT: Let me react a little bit here.
 

First of all, I want to remind you all that a
 

comment period is a time for the Department to
 

listen to comments from the public -­

DR. ZIEMER: Right. This is not a final
 

rule.
 

MR. ELLIOTT: -- and the Advisory Board. 

You're right, it's not a final rule. 

And it's not a time for the Department or the
 

staff here at NIOSH to interpret this pending
 

rule or debate the meaning of the rule with
 

members of the public or the Board. In our
 

listening role we do not want to engage in any
 

type of communication that any individual or
 

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58 

group may feel (inaudible) represents or serves
 

to misrepresent the Department's offering of
 

interpretations of the rule. 

Therefore, we're going to continue to limit
 

ourselves to directing you to pertinent parts of
 

the proposed rule or to the statute for your
 

discussion where we think it might provide
 

clarity. We've very interested in hearing the
 

comments from the Board and the public, and we
 

encourage everyone to provide those written
 

comments to the regulatory docket as indicated in
 

the proposed rulemaking. 

Let me just say this, too. Each dose
 

reconstruction that we do considers the type of
 

radiation exposure and the type of cancer that
 

the employee contracted. It is also true, as in
 

examples we've presented to the Board, the
 

feasibility of a dose reconstruction can depend
 

upon the type of radiation exposure and the type
 

of cancer the employee contracted. The dose
 

reconstruction for an employee with colon cancer
 

and unquantified radon exposure may be perfectly
 

feasible, while it might be impossible for a
 

coworker with lung cancer. 

The statute requires a determination that the
 

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dose reconstruction is not feasible for HHS to
 

add a class to the SEC. This Notice of Proposed
 

Rulemaking proposes that the proposed class not
 

include persons for whom a dose reconstruction
 

can be done.
 

I think Jim's got something else he wanted to
 

follow up with on that.
 

MR. NETON: Well, I think I was just going to
 

add that when we approach a dose reconstruction
 

we apply the efficiency process that is outlined
 

in 42 CFR 82. In doing so, we complete the dose
 

reconstruction as far as we need so that Labor
 

could make an unambiguous decision regarding
 

compensability. Now if that would be a
 

maximizing assumption that would be an
 

unreasonable -- a reasonable exposure given the
 

circumstances of the person's work environment,
 

we could do that and complete the dose
 

reconstruction again by applying the efficiency
 

process. 

So the answer is not all organs are
 

irradiated (inaudible), so when a certain organ
 

is irradiated -- certain cancer types in certain
 

organs, we can make certain very -- a broad
 

(inaudible) assumptions by applying the
 

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efficiency process to complete the dose
 

reconstruction. That's the way it works. 

MR. ELLIOTT: As well, pointing back to
 

language in the NPRM, we used the phrase “may.” 

We may, where appropriate, because of the ability
 

to do dose reconstructions for certain cancers,
 

we may define a class. Because we -- the statute
 

also requires us to do dose reconstructions where
 

feasible. 

Thank you.
 

DR. ZIEMER: Okay. 

Other Board comments?
 

DR. ROESSLER: Paul, this is Gen Roessler. 

I have a question that came up while Larry
 

was talking. There's a certain comment period,
 

and the period has been extended. At the end of
 

that time does the Board deliberate again, then
 

being able to take into consideration public
 

comments or anything else that might come up?
 

DR. ZIEMER: No. The process is the public
 

comment period is really for the benefit of the
 

Agency, which is going through rulemaking. 

MR. ELLIOTT: Dr. Ziemer, if I may?
 

DR. ZIEMER: Yeah.
 

MR. ELLIOTT: This is Larry Elliott.
 

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61 

Yes, just for everybody on the call that may
 

not have been made aware of this, at the Board
 

meeting on March 7th the Board recommended that
 

the comment period for the second Notice of
 

Proposed Rulemaking for the Special Exposure
 

Cohort be extended to 15 days, for a total of 45
 

days of public comment. The Board indicated that
 

it also wanted to ensure that both the Board and
 

the public had adequate time to review and
 

comment on its proposal, especially in light of
 

significant changes that the first public comment
 

produced. 

The Department has agreed with the Board's
 

recommendation that a longer comment period is
 

desirable and has decided to provide an
 

additional 30 days of comment, making the public
 

comment period 60 days. And that deadline is now
 

set for Tuesday, May 6th. 

And you're quite right, the process is that
 

at that point on that day the public comment
 

period will close, and then the next step will be
 

for us to review, evaluate, consider, and address
 

those comments towards promulgating a final rule. 

So the Board must complete its business by the
 

6th.
 

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DR. ZIEMER: Which is basically just over a
 

month away. 

Now obviously you can take into consideration
 

public comment that you've already heard. There
 

may be additional ones that are submitted in
 

writing and which would then appear in the record
 

and so on. But in one respect the Board's
 

comments are another set of comments that is
 

considered by the Agency as well as the public
 

comments. But it's technically not our job to -­

we don't respond directly to public comments. 

That's the Agency's process, where they take
 

those into consideration in going to the final
 

rule, as they take our comments into
 

consideration. 

And at this point -- well, let me tell you
 

that I've sort of -- I've kept tabs as we've
 

proceeded here, and actually have drafted based
 

on things we've already reviewed, our comments up
 

to this point. And what I do need to determine,
 

what we need to determine, is what our comments
 

will be on this section or on this particular
 

issue. 

The Board can make general comments. They
 

can raise concerns. They can recommend specific
 

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63 

wording. There's a whole variety of directions
 

that we can go. Whatever we recommend is
 

something we need to agree on as a Board. It may
 

be helpful to, as we discuss this here, to get
 

some idea of your individual views on this issue
 

in terms of your comfort level on how NIOSH has
 

delineated this in the proposed rulemaking, your
 

discomfort level if that's more appropriate, or
 

any alternatives.
 

DR. MELIUS: This is Jim Melius. I guess
 

I'll start things off. 

I guess my discomfort level is very high with
 

two sections of this. One is how well NIOSH has
 

delineated this whole issue of sufficient
 

accuracy of dose reconstruction and the
 

parameters they placed on that. And then
 

secondly, I think flows out of that, is really
 

the lack of delineation on this issue of specific
 

cancer sites. 

And I think I can see from the public comment
 

period this time and last time, that's raised a
 

lot of -- a lot of people are upset about that. 

But even aside from that, I just find it very
 

hard to follow what they're doing and seeing how
 

that is justified. I can see it in some sense in
 

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a theoretical sense, but then when I (inaudible)
 

back to a practical applied sense I see no limits
 

on how NIOSH may choose to apply this, and how
 

the Board can get involved in trying to make
 

judgments on -- in reviewing NIOSH's application
 

and making recommendations on which cancers
 

should include. 

And I'm just -- I just don't think the rule
 

in these two sections as currently drafted is
 

workable (inaudible) NIOSH as well as
 

recommendations on how to improve that. 

DR. ZIEMER: As far as process is concerned,
 

if things proceeded as outlined here, as I would
 

understand it, if a proposed class was defined -­

and let's say the proposed class was defined in
 

terms of facility and a time period and so on,
 

and let's say some subset of cancers in the main
 

list -- that proposed class would have to come to
 

the Board under this process.
 

DR. MELIUS: Correct, and then the Board
 

would have to make a recommendation. Presumably
 

NIOSH would recommend that certain cancers be
 

covered (inaudible). 

DR. ZIEMER: Right. And I would presume that
 

in such a case the Board would be looking for
 

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some kind of justification for this limitation
 

that we're focusing on, and would have the
 

opportunity to say that doesn't make sense
 

scientifically or whatever.
 

DR. MELIUS: Yeah. But my concern, Paul, and
 

this is that we don't -- I don't even know how -­

we don't even have the parameters to make that
 

judgment and to do it in a consistent and nonarbitrary fashion. This is so -- these rules are
 

so general that -- I keep going back to this
 

case-by-case issue. 

And I think the same thing applies when we
 

are reviewing dose reconstructions, whether there
 

was enough information to reconstruct the dose
 

with sufficient accuracy. That rule is so vague,
 

so general, that I think it would be very
 

arbitrary as to -- again, we're going to be in a
 

position of having to review at least some of
 

those, that it's going to be very difficult to
 

again draw the line. 

And I'm (inaudible) very disappointed that
 

NIOSH hasn't made more of an effort to define
 

this better, to explain this better to us and to
 

the general public.
 

DR. ZIEMER: Okay, other comments?
 

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MR. GRIFFON: Yeah, this is Mark Griffon.
 

DR. ZIEMER: Mark.
 

MR. GRIFFON: Yeah, I also think -- I'm
 

thinking about our role on the Board and these
 

cases coming back to us. And the question comes,
 

in my mind, again comes up that how was the
 

determination made? Whether it's right or wrong,
 

set aside for a second whether it's right or
 

wrong to limit the list of cancers. But if a
 

determination was made for one particular SEC
 

class to limit their (inaudible) only two cancers
 

or whatever, how was it made that -- how was the
 

determination made that the other ones did not
 

receive significant dose, whatever? What was the
 

cutoff, what was the rationale used to make that
 

determination? 

I'm not sure -- you know, I've been saying,
 

well, this significant stuff is only in the
 

preamble. That's correct, but I just don't think
 

that's clearly delineated in the rule itself. 

And again, we're going to be put on the spot to
 

agree with that decision or disagree with that
 

decision. So I think some clearer guidance up
 

front in the rule is needed, so everybody has
 

something to turn back to on that. 

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DR. ZIEMER: It'S a little difficult in the
 

absence of a specific group of cases to actually
 

delineate anything other than the process, I
 

guess, at this point. Is that not correct? 

I assume in the process that there would have
 

to be something that convinced first NIOSH staff
 

and then the Board that in fact that made sense,
 

that it somehow made sense in a particular case
 

or cases that would say, yeah, it makes sense
 

that these particular cancers aren't included
 

because something about either the nature of the
 

nuclides involved or the process involved that
 

those particular organs could not in any case
 

have been exposed. 

And again, it seems to me the more
 

uncertainty there is in that, then the more
 

likely it is you would have to include organs
 

rather than exclude them.
 

DR. MELIUS: But how do we define that
 

uncertainty, is the -­

UNIDENTIFIED: That's the question. 

DR. MELIUS: This is the problem I have, when 

you can't see -­

DR. ZIEMER: I'm asking if you can do that á 

priori. I don't know the answer to that. 

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DR. MELIUS: Oh, I know you don't. I'm just
 

saying that's the issue. 

We all go back, kind of go back to the
 

science of it and sort of the IREP approach and
 

what we've constructed for when we are going to
 

do dose reconstruction, and we know how difficult
 

and how much uncertainty there is with that. We
 

have a system that factors in that uncertainty. 

Now we're in a situation where we can't do
 

even (inaudible) a maximum dose, and then now
 

we're trying to then make some (inaudible) on
 

either on exposure or odds of exposure or organs
 

that are (inaudible). I guess (inaudible) I
 

think that has to be much more carefully
 

delineated before it would really be something I
 

could see being something that would be workable. 

MS. NEWSOM: Excuse me, was that Dr. Melius? 

DR. MELIUS: Yes, it is. I'm sorry. 

MS. NEWSOM: Thank you. 

DR. ZIEMER: I suppose -- I'm trying to think 

here in terms of the nature of the comments the
 

Board can make on this, and we have a mix of
 

backgrounds on the Board also.
 

But it seems to me that we might be able to
 

construct something that indicates that we
 

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recognize that in principle scientifically such
 

situations might exist, that in practice we see
 

some practical difficulties in actually doing
 

what is proposed, and therefore may have some
 

questions on the extent to which this selectivity
 

issue can actually be carried out.
 

Again, I'm trying to help us think about what
 

we can say that raises -- to some extent this
 

issue needs to be flagged. It already has been
 

flagged to the Agency by the public. I think
 

there is some on the Board that feel that
 

scientifically or at least in principle you can
 

argue that it doesn't make sense, that in
 

practice it may be very difficult to actually
 

carry it out, and therefore is it of practical
 

value.
 

MR. GRIFFON: There's one other thing to
 

remember in this, Paul -- this is Mark Griffon,
 

I'm sorry -- one other thing to remember, and
 

that is that in order to get to this specific
 

cancer side of the equation, and I guess it just
 

ties back into the sufficient accuracy question,
 

the first hurdle says that we can't determine
 

dose. 

Then if I, for a second, if I accept the
 

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logic that if we know the source term and a
 

reasonable amount about the processes, then we
 

can in some way establish a maximum dose. That,
 

in the current language, that meets the
 

definition of sufficiently accurate. So you're
 

already admitting, if they get past that hurdle,
 

you're already saying we don't even have
 

sufficient information about the source term, et
 

cetera. And this is my circular argument here,
 

that then you're going to try to limit organs
 

when you've already said we can't even establish
 

a maximum. 

And under these guidelines, again, I'm not
 

sure -- I'm not saying that I agree with this
 

principle, but under these guidelines it says we
 

can use maybe as little as source term
 

information and processing information to be
 

sufficiently accurate with a maximum estimate. 

If we can't even get to that hurdle, then you're
 

saying but we know enough about the source term
 

that we're sure it's only this isotope, or it's
 

only -- they were only involved in x-ray
 

diffraction exposure, so therefore we're going to
 

limit the list. 

I guess that's the other side of this, is
 

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that -- that we need to consider. 

DR. ZIEMER: Yeah. I can think at least in
 

principle that there might be cases where you
 

know something is present, that it's this and
 

only this nuclide or these and only these
 

nuclides. But perhaps the amounts are unknown,
 

or there's something unknown about the process or
 

the configuration or where people were, all of
 

those uncertainties.
 

Now we know that certain kinds of dose
 

reconstruction, at least limiting one, might be
 

done even in those cases where we said yeah,
 

there is no more than one microcurie of this
 

stuff present in this whole site or something. 

That's one thing. But if the amount -- if the
 

information -- there's got to be some
 

information. That is, we've got -- you sort of
 

have to know that there was something there,
 

right?
 

MR. GRIFFON: Yes. Well, I'm just going by
 

the definition presented in the text in the
 

proposed rule for a second, you know, where they
 

say that's sufficiently accurate. And I'm
 

looking for it now.
 

DR. MELIUS: This is Jim Melius.
 

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One of the -- two things I want to bring up. 

One is one of the practical issues that bothers
 

me is that if when we're (inaudible) can't even
 

estimate a maximum dose, how well do we really
 

know that there's a limited source, that there's
 

only one source? And I think the situation with
 

Paducah and so forth with the plutonium and so
 

forth, which whatever reasons wasn't recognized
 

or acknowledged for a period of time, that there
 

could be other things present there, and that
 

changes this whole situation.
 

But to the other example I'd use, though,
 

would be what if we had sufficient accuracy for a
 

dose reconstruction to find differently and it
 

was something other than a maximal dose, it was
 

something, certain amount of dose records being
 

available or coworker data or area sampling,
 

something less general. So we'd have Special
 

Exposure Cohorts where there would be -- you
 

would not have -- would not be able to do their
 

dose reconstruction under that scenario, but we
 

might be able to do their maximal dose. 

In that case then we'd have something to work
 

off of to maybe look at some limitations of which
 

cancer sites would be involved. At least we'd
 

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have a little bit more certainty that we -- in
 

terms of what we would be dealing with. Now of
 

course, we'd want to define what we meant by
 

being able to do a maximal dose, and so forth and
 

so on. But to me that would give us an entree
 

into making some of these determinations. 

I just worry -­

DR. ZIEMER: You're saying suppose you could
 

reconstruct to the point where you said there was
 

a maximal dose, that it met the probability of
 

causation criteria for compensation? 

DR. MELIUS: Yeah.
 

DR. ZIEMER: And you assign that to
 

everybody? 

DR. MELIUS: Yeah.
 

DR. ZIEMER: But that's a dose
 

reconstruction, I believe -­

DR. MELIUS: I'm also saying what if the
 

definition of dose reconstruction was different? 

I guess what worries me is we've made -- by using
 

the maximal dose as the test of sufficient
 

accuracy for a dose reconstruction, what is left
 

that allows us to make any sort of specification
 

of a cancer site? I just find it very hard to
 

come up with practical examples that that would
 

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apply.
 

Now if we were in a situation where
 

sufficient accuracy for dose reconstruction was ­

- has other parameters on it such as area
 

exposure, whatever, but would not -- but then
 

will you still be able to do a maximal dose, a
 

maxed estimate of maximal dose, then at least
 

there's a number to work off of and so forth,
 

something to apply. But here, in a practical
 

way, we're going to be -- a lot of guessing
 

involved. And I find it hard to come up with
 

practical examples.
 

DR. ZIEMER: Okay. 

Others on the Board have comments?
 

DR. ANDRADE: Yeah, Paul, this is Tony
 

Andrade.
 

DR. ZIEMER: Tony.
 

DR. ANDRADE: It appears that we've reached
 

an impasse here to at least a couple of items. 

One, let me take the trivial one first, and
 

that is the way the law is written -- not law,
 

the proposed rule is written with respect to this
 

particular paragraph. That's 83 -- what is it,
 

14?
 

DR. ZIEMER: Thirteen. 

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DR. ANDRADE: Thirteen, Roman numeral (iv). 

We need a little bit more clarity for the public
 

as well as ourselves to understand that this may
 

be a way to -- and I believe either help define a
 

group, or alternatively to discredit whether or
 

not a (inaudible) whether a group really should
 

exist for a certain situation. So I think there
 

needs to be some writing in there that provides
 

further clarity. But like I said, this is the
 

least of the two ideas that I have. That's one.
 

But number two is the following. I think
 

that we can all sit here and think of an infinity
 

of potential situations or, for example, of what
 

might metastasize from one site to another,
 

whether or not it was caused by internal or
 

external exposure. And I really believe that it
 

may be that this -- what we should really -- the
 

way we should handle this is that if ever NIOSH
 

has to invoke the potential use of looking at
 

specific cancer sites, that those cases be
 

presented to the Board. I can -- for our advice,
 

for our comment, so that they can go forward with
 

these. 

Practically speaking I agree with you, Paul,
 

in that I don't think that we're going to see a
 

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76 

lot of these cases. But there -- I'm sure that
 

we will see some. And I can think of my own
 

example, you ingest plutonium or americium, it
 

goes to the liver first, and over the course of
 

your lifetime it goes, it starts to transform out
 

into your bone. So you can't just look at liver
 

cancer. You're going to have to look at bone
 

cancer and perhaps others that metastasize from
 

these. 

So what I'm saying is that to go around this
 

impasse, at least for now, I would propose that
 

somewhere in the rule, the proposed rule, that we
 

very clearly specify that if this is ever
 

invoked, that this immediately goes to the Board
 

for review. And I think there's value added
 

there. I think there will be due diligence in
 

review of the cases and sending them back to
 

NIOSH for a relook in case there are people that
 

would sit on the Board that have legitimate and
 

strong concerns about the possibility that
 

specific cancer sites may very well have effected
 

the cancer to another site.
 

DR. ZIEMER: Okay, thanks, Tony.
 

I would like to point out that under the
 

provisions of Section 83.15 the Board in fact has
 

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77 

to consider all petitions to the Special Exposure
 

Cohort. So are you suggesting something other
 

than the process that's already here? It says
 

the Board will consider the petition and the
 

NIOSH evaluation, and then the Board may obtain
 

additional information not addressed in the
 

petition. 

DR. ANDRADE: No, not really, Paul. What I'm
 

trying to do is say that I really think that the
 

wording should be there that goes above and
 

beyond what is said for just any petition; that
 

in particular with this very controversial
 

situation that, number one, we're not eliminating
 

looking at any of the 22 cancers, that we
 

emphasize that, and that we also emphasize the
 

fact that if this is invoked that this will
 

receive -­

DR. ZIEMER: Receive added attention in some
 

way.
 

DR. ANDRADE: Added attention by the Board. 

DR. ZIEMER: Are you suggesting something
 

along the lines where in any cases where the
 

Special Exposure Cohort is limited to, let's say,
 

less than all of the cancers on the list that the
 

NIOSH staff would have to have specific
 

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justification for excluding of any cancers?
 

DR. ANDRADE: Absolutely.
 

DR. ZIEMER: How do others of you feel about
 

that kind of an approach? 

MR. PRESLEY: Bob Presley. I agree with
 

that.
 

MR. GIBSON: This is Mike Gibson.
 

I guess I'm just kind of concerned that, and
 

based on hearing some of the public comments,
 

does NIOSH have this legal authority to take this
 

interpretation based upon what was presented in
 

the legislation? 

I, personally as a Board member, don't know
 

that I would feel comfortable even entertaining
 

looking at something that NIOSH has come up with
 

that may be -- that may in fact not be with the
 

spirit and intent of the law, any kind of comment
 

or debate on a petition that NIOSH has come up
 

with a recommendation or a denial on. So I would
 

be more comfortable if NIOSH had Congressional
 

approval to keep this section in here, if that
 

was truly the intent of Congress.
 

MR. ESPINOSA: This is Richard Espinosa.
 

I agree with exactly what Mike's saying. If
 

we're going to limit the 22 cancers, I totally
 

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79 

believe it's unfair and it's not the intent of
 

Congress.
 

MS. MUNN: This is Wanda.
 

DR. ZIEMER: Okay, Wanda.
 

MS. MUNN: I, in the first place, cannot
 

conceive in my own mind the wording that would
 

get around this problem adequately. May be in
 

there, but I don't know what it is.
 

And secondly, perhaps I'm missing a key point
 

here. I do not understand either the public
 

concern or what other people are talking about
 

when they talk about limiting the number of
 

cancers, reducing the number of cancers that are
 

covered by the law. I don't see that this is
 

what this section does at all. 

It appears to me that what this section is
 

doing is talking about how one can approach the
 

issues that are before us with respect to Special
 

Exposure Cohorts. And I don't see that that's
 

reducing the specified cancers, and the specified
 

cancers are there for a reason. There is a
 

scientific (inaudible). 

So I am at a loss. I have not heard anyone
 

suggest that they could provide wording that
 

would clarify the intent that the individual has
 

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80 

in mind for what this ought to say, other than
 

what it does in fact say. I don't see that it's
 

giving NIOSH undue authority over and above what
 

the law has (inaudible). And I certainly can't
 

guess what the Congressional intent is, having in
 

the back of my mind what that sense of Congress'
 

statement included, which was completely
 

erroneous and not factual. 

I guess I think we may have a situation where
 

we can't meet everyone's desire to be specific
 

enough and broad enough at the same time to cover
 

what the issue is here.
 

DR. ZIEMER: Well, obviously there is a
 

concern that we -- regardless of the extent to
 

which one does or does not agree with how the law
 

was generated, it does exist. And I just want to
 

suggest that how we understand that law may not
 

be completely clear cut. 

I'm reading from the section on Special
 

Exposure Cohort, where the criteria is, one,
 

“it's not feasible to estimate with sufficient
 

accuracy the radiation dose to the class
 

(inaudible).” This is in the law. They use the
 

words “with sufficient accuracy.” And then two,
 

“there's a reasonable likelihood that such
 

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81 

radiation dose may have endangered the health of
 

the members of the class.” And that's the way
 

the law reads. 

Now the issue of likelihood that it
 

endangered the health, when I look at that from a
 

scientific point of view I have to first ask
 

myself -- and we're talking about cancers here,
 

and all of them are potentially included -- but
 

if it's a specific cancer I have to say to
 

myself, is there a likelihood that radiation
 

endangered that person's health or the people in
 

this class by delivering dose to the organs of
 

concern? I mean, I can read that in the law. 

So to the extent that the law says that you
 

have to sort of make that determination, one can
 

argue this approach. I'm trying to be a devil's
 

advocate on this side now. But all I'm saying is
 

I don't think it's completely obvious that the
 

law says that any of the 22 cancers applies in
 

every exposure situation, because that does not
 

meet the test of reasonable likelihood that the
 

health was endangered if you have a particular
 

case where you simply couldn't get -- again,
 

theoretically -- couldn't with either the
 

exposure scenario conditions or nuclides or
 

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82 

radiation source have delivered exposure to a
 

particular organ. 

But in the absence of specific cases it's
 

very hard to come to grips with that notion. 

That's part of the struggle here. And I think it
 

would be possible to include statements that
 

indicated that some Board members have concerns
 

about the appropriateness and so on. I know this
 

is an issue that's kind of at the heart of many
 

of the things here. It certainly is in the
 

public, it's a very crucial issue, and I think we
 

have to be cognizant of that. We are also
 

charged by law to do certain things as a Board. 

MR. GIBSON: This is Mike Gibson again. 

DR. ZIEMER: Yeah, Mike. 

MR. GIBSON: I guess just my point is the 

daily records are so inadequate. We've had a lot
 

of discussion about source term, and maybe DOE's
 

records are not adequate that that was the only
 

source term, there could have been other isotopes
 

mixed in or whatever else. But just in reading
 

the certificate we got from President Bush, it
 

says it's our duty to fulfill the duties of the
 

law.
 

DR. ZIEMER: Yeah.
 

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83 

MR. GIBSON: And if so, if we have such
 

varied opinion, what's the objection to, whether
 

it's NIOSH or the Board, going back to Congress
 

and asking them what their intent was? I mean,
 

we all have our own interpretation of the law,
 

but I don't know that that's our right. I think
 

we should get it clarified by the folks that have
 

the authority to implement this legislation. 

DR. ZIEMER: I don't know if anybody can
 

speak to that question, Mike, and at this point
 

I'm not sure we can simply say to the Secretary,
 

take this back to Congress.
 

MR. ESPINOSA: This is Richard Espinosa. 

What's preventing us from doing that, Paul?
 

DR. ZIEMER: I don't know. I don't know the 

answer to that. 

DR. MELIUS: This is Jim Melius. 

I certainly think we can put in a comment to
 

the effect that given what we've heard from the
 

public that this is, as well as members, some
 

members of the Board or whatever, that there is a
 

concern about this and whether this
 

interpretation is appropriate given the basic
 

background legislation, and that's an appropriate
 

way of communicating that. Unless NIOSH or HHS
 

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provides us with some other information, which
 

it's my understanding is they (inaudible) not
 

during the comment period.
 

MS. MUNN: This is Wanda. 

I have real reservations about the political
 

ramifications and the scheduler problem involved
 

in requesting a Congressional review of this
 

portion of the law. My personal assessment is
 

that you will push back any claims that you have
 

currently ongoing that might fall into this
 

Special Exposure Cohort at least a year and a
 

half, and probably longer than that. I can't
 

imagine that you could get this question through
 

both houses of Congress this calendar year. Just
 

can't imagine it would happen.
 

MR. ESPINOSA: Dr. Ziemer, this is Richard
 

Espinosa again.
 

You know, I don't believe it has to go
 

through -- even if we can get some of the head
 

staffers over this issue to comment on it, I
 

think that will help out a lot. I'm just feeling
 

really, really uncomfortable with this right now.
 

MS. MUNN: This is Wanda.
 

I'm afraid that we were placed in an
 

uncomfortable position when we agreed to take
 

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85 

this responsibility. And from my observation,
 

NIOSH has done an incredible job of trying to put
 

together, and in most cases very successfully so,
 

the kinds of rules that would appear to cover as
 

best one can the meaning of the law. 

As I heard someone say, we can't interpret
 

it. One has to interpret it if you're going to
 

carry it out. That may make us feel as though we
 

are not fully competent to do that, but then no
 

one is.
 

DR. MELIUS: This is Jim Melius.
 

All we're saying, at least I was
 

recommending, is that we go back and ask for
 

clarification on it. I'm not saying things
 

should be delayed because of that. That's their
 

decision. And to say that's going to take a year
 

and a half and somehow hold up something is
 

ridiculous. 

I think that we communicate this issue needs
 

to be clarified. And then it's up, then, to the
 

Secretary and NIOSH to determine how they go
 

about doing that. For all we know they may have
 

done that already in the comment period or
 

whatever other procedure they have, they may not
 

want to share any of that information with us. 

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86 

So I think all we're saying is that should be
 

a comment from the Advisory Board, and let it -­

doesn't mean we will hold up our comments or that
 

we hold up the regulation. That's up to them.
 

MR. ESPINOSA: I agree with Dr. Melius, and
 

I'd like to see that in the form of a motion.
 

DR. ROESSLER: Before we go much further,
 

maybe it's because the connection has been bad -­

this is Roessler -- it's not clear to me
 

specifically what questions are or what the
 

comment is. So I wish maybe Jim could repeat
 

that, or Rich.
 

DR. ZIEMER: Rich, I think was your comment.
 

MR. ESPINOSA: On that last part, what Dr.
 

Melius was saying, I would really like to see
 

what Congressional intent was on this, and based
 

on what Dr. Melius was saying basically put it in
 

the form of a motion from the Board, or from Dr.
 

Melius. I can't repeat his exact words on that
 

last statement. 

DR. DeHART: Paul, this is Roy. 

DR. ZIEMER: Yeah, Roy. 

DR. DeHART: In my experience with 

regulations I don't think that Congress is in the
 

void on this. It's now in the Federal Registry
 

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87 

[sic]. They study the Federal Registry. There
 

are those advocates who will make sure that the
 

appropriate people in Congress will oversee it. 

And if they have concern they will raise that
 

concern, and it will be documented and they will
 

be heard from. So I'm not worried about that. I
 

think that certainly will happen if the concern
 

is that that degree of level of height.
 

I do agree that there needs to be somewhere
 

along the way satisfaction within the regulation
 

or within the preamble as to how this concern is
 

raised, and why it is not in violation of what is
 

presumed to be the previous regulation. 

DR. MELIUS: This is Jim Melius again. 

I think all we're suggesting -- I agree with
 

Roy, that other (inaudible) may take this up
 

also, including people from the appropriate
 

staff. And I believe Richard Miller already
 

addressed that in the public comment period. 

But all we do, that we simply say that raise
 

the concern. We've heard it from the general
 

public, heard it within the Board, and that this
 

issue needs to be clarified. And then see what
 

happens.
 

Now whether we can seek clarification, obtain
 

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clarification within the comment period, I don't
 

know. But I think for better or worse we just
 

should certainly raise the issue, something we've
 

heard from the general public.
 

DR. ZIEMER: And again, keep in mind that in
 

any case where, as we've already indicated, where
 

something did come forward that actually had such
 

a limitation in it, the Board would actually have
 

an opportunity to require that there be a
 

justification. It would have to make sense to
 

the Board as well as to the staff.
 

DR. MELIUS: Jim Melius again.
 

My point earlier was not that this was not
 

going to come to the Board; we knew it was going
 

to come before the Board. But how was the Board
 

going to make sense of, evaluate this coming
 

forward when it was such a vague and general
 

regulation? It provides no parameters for making
 

that -- at least parameters that I can
 

(inaudible) how to judge one case from another or
 

know where to draw the line. And agreeably,
 

(inaudible) individual cases will vary. But one
 

would think there would be some more specific
 

parameters, so when this (inaudible) cancer issue
 

would apply.
 

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89 

DR. ZIEMER: Okay, we've heard a number of
 

comments. Are we at a point where we can have
 

some level of specificity? 

There's an issue on, or there's some
 

suggestions that our comments include some
 

clarity on -- that was clarity on, I guess, on
 

the definition of sufficient accuracy? Or what
 

was the clarity issue? Just on the process?
 

DR. ANDRADE: This is Tony Andrade.
 

It was more on the process in which
 

particular -- in which this particular, I don't
 

know, mechanism would be (inaudible) invoked to
 

make a judgment that cancer is not likely from
 

(inaudible) for a given group. 

DR. ZIEMER: And also some suggestion that
 

NIOSH be asked to somehow confirm the intent of
 

Congress, or -­

UNIDENTIFIED: Correct.
 

DR. ZIEMER: Is that sort of the notion, Jim,
 

that you're raising?
 

DR. MELIUS: Yeah, that NIOSH clarify the
 

appropriateness of this procedure given the whole
 

list that was in the legislation, as well as what
 

the intent of Congress was with that legislation. 

DR. ZIEMER: What I'm going to suggest doing
 

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90 

here is -- I've jotted down a number of things. 

I'm thinking what I might do is draft a straw man
 

and get it out to everybody to look over
 

pertaining to this section, which means we will
 

have to have a final conference call in a few
 

weeks to agree to it. But I don't know that we
 

can draft it right now. 

I wonder how others of you feel about that
 

approach? 

MS. MUNN: This is Wanda.
 

I would very much like to have some words to
 

be looking at, very much.
 

MR. ESPINOSA: Dr. Ziemer, this is Richard
 

Espinosa. 

I agree with what Wanda is saying. It's -­

there's a lot out there right now, and to me it's
 

getting a little bit confusing as well. So I'd
 

like to see some words before this section kind
 

of continues, and with another public -- not
 

another public comment period, but with another
 

Advisory Board conference call.
 

DR. ZIEMER: Right, okay.
 

I will piece something together here, and
 

actually what I will plan to do -- well, we'll go
 

on to some other items, but I'll piece something
 

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91 

together. I may want to shoot it out to a couple
 

of you to take a preliminary look at, and then -­

particularly those who raised the issue, make
 

sure it captures everyone's ideas, and then get
 

it out to the Board. And then we would have to
 

discuss it in probably another conference call
 

two or three weeks from now.
 

But let's proceed and see what else we have
 

to deal with before us, okay. Is that agreeable? 

DR. MELIUS: Yes.
 

DR. ZIEMER: Now let me see, we're still here
 

in this same section, 83.13. Are there any other
 

things in this section that anyone had, 83.13?
 

[No responses]
 

DR. ZIEMER: Okay, what about 83.14, How will
 

NIOSH evaluate a petition? Were there any issues
 

on that one? I didn't have any flagged from
 

before.
 

[No responses]
 

DR. ZIEMER: On 83.15 I didn't have anything
 

flagged. Does anyone have any items on that
 

section?
 

MS. MUNN: This is Wanda. 

DR. ZIEMER: Yes, Wanda.
 

MS. MUNN: I recall -- oh, I was told that
 

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92 

was okay. I raised the issue about privacy
 

issues early on, and I was reassured about that. 

DR. ZIEMER: You're okay on that? 

MS. MUNN: (Inaudible) covered.
 

DR. ZIEMER: Okay, 83.16. I did make a note
 

on 83.16, item (c). Someone had raised the
 

question as to whether or not there should be a
 

time deadline inserted in the time for final
 

decision on designation of a class. Did we
 

decide that we could not mandate that to HHS?
 

MS. MUNN: My memory of our original
 

discussion was that we sort of ran out of
 

(inaudible) without coming to any conclusion
 

whether it should or should not be there. But I
 

think the general tenor that I recall was that we
 

really couldn't do that. 

DR. ZIEMER: Yeah, I think that's right. I
 

think we just left it with the assurance that
 

this would be done in a timely fashion following
 

the Agency's normal process, so that it doesn't
 

need to have a timeline in it. There is a
 

timeline on HHS providing information to the
 

petitioners and so on, so that's already in
 

there. 

Okay, then let me go back, and I'm going to
 

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93 

identify for you the items that we have already
 

agreed on, and then we come to one item that we
 

need to discuss in a little more detail dealing
 

with facilities. 

We agreed to -- let me give you page numbers
 

here, 112296 [sic], column three; and in the old
 

version this is the section on public comments on
 

the accuracy of dose reconstruction, I believe. 

Yeah, Summary of Public Comments, Section B on
 

Accuracy of Dose Reconstructions.
 

MR. ESPINOSA: What page is that, Paul?
 

DR. ZIEMER: It's 11296 in the Federal
 

Register, and it is page 15 in your typewritten
 

version. In the Federal Register it's column
 

three, paragraph two, last sentence.
 

Simply that the statement is confusing. 

I think, Wanda, this was your item, and we're
 

just asking NIOSH to rewrite that sentence to
 

clarify it. So it's not a substantive change.
 

MS. MUNN: No. I wasn't asking for a change
 

in meaning. I was just -­

DR. ZIEMER: Right. 

Page 11303, column one, paragraph two, we are
 

asking -- in the second sentence we are asking
 

for the insertion of the word “occupational”
 

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94 

after the word “sufficient,” so it reads, “If the
 

employee had sufficient occupational radiation
 

exposure outside of the work as a member of
 

cohort.” So it was just specifying that it was
 

additional occupational exposure. That was more
 

of an editorial.
 

Then page 11306, column three, Definitions. 

We had flagged that. There was concern about the
 

definition of a facility, and we had asked Jim
 

and Tony to develop some wording on the use of
 

the word “facility” in this document.
 

Now as a starting point, and Jim and Tony had
 

distributed, I believe, a one-pager called
 

facility definition issue. Did everybody get
 

that?
 

[Affirmative responses]
 

DR. ZIEMER: Distributed by Cori. 

And they point out that there is a definition
 

of facility in Subtitle B, Section 3621, that is
 

in the regulation itself. And there also is in
 

the -- that was in the legislation. In the bill
 

regarding Special Exposure Cohort there is a
 

statement on the Designation of Additional
 

Members of the Special Cohort, and the statement
 

that says “The Advisory Board shall advise the
 

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95 

President where there is a class of employees at
 

any Department of Energy facility who were likely
 

exposed,” and so on. So there's those two uses
 

of facility in the legislation and in the bill. 

And then there is a recommendation on this
 

paper that says -- and it's the last paragraph on
 

the paper by Jim and Tony -- that says:
 

“For the purposes of this draft regulation,
 

the Board recommends that “facility” should be
 

considered broadly (e.g., Los Alamos, Rocky
 

Flats). Then the “class” definition would be
 

used to limit the class to those workers who
 

worked in some specific operation(s) at the
 

facility and whose dose could not be
 

reconstructed with sufficient accuracy. If
 

facility was defined to refer to specific
 

buildings, etc., NIOSH would have to spend
 

considerable effort developing an inventory of
 

defined “facilities” at each DOE site and would
 

have difficulty considering new SEC classes for
 

workers in operations that might have taken place
 

in more than one building or “facility” at a DOE
 

site.”
 

So as I read it, it's this last paragraph
 

that Jim and Tony are recommending be included in
 

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96 

our comments.
 

Is that correct, Jim and Tony?
 

DR. MELIUS: Correct.
 

DR. ANDRADE: Yes, that's correct.
 

DR. ZIEMER: And let me ask you also, is it
 

your motion that we should include in this
 

rulemaking the official definition of facility
 

that shows up in the legislation? Some of the
 

other definitions are repeated from the
 

legislation as well. Would it be helpful to have
 

that in here as well?
 

DR. MELIUS: The problem is that there are
 

two definitions of facility that are not quite
 

consistent with each other. There's one of an
 

AWE facility which talks about facility in a
 

broad sense, and there's another one where it
 

talks about a Department of Energy facility which
 

talks about facility in a much more buildingspecific sense. 

I think what's (inaudible) some of those make
 

sense, because what the definitions are used for
 

in the legislation are to determine which
 

employees are eligible. So it's an employee
 

working in such a facility, any such facility. 

DR. ZIEMER: Right, right.
 

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97 

DR. MELIUS: And if one looks through the
 

legislation and looks for (inaudible) talks about
 

exposure, then it never talks -- the bill, at
 

least the section I read, never talked about the
 

exposure at a facility, or restricted to a
 

facility in any way. It just talks about an
 

employee having an exposure, but doesn't limit
 

that exposure to facility the employee worked at
 

or whatever.
 

So Tony and I in our e-mail discussions about
 

this, if you remember from the last conference
 

call, sometimes it's somewhat a question of
 

perspective. My perspective is that Los Alamos
 

is a facility. I think of it that way. Tony,
 

who works there, knows lots of different
 

facilities at Los Alamos. I'm sure it's the same
 

with Wanda and everybody else who worked at what
 

those of us on the outside refer to as a facility
 

or think of as a facility. 

But if one then -- I think in our
 

deliberations if one thinks of how -- what we're
 

going to be doing in terms of a Special Exposure
 

Cohort, it sort of makes sense to think of
 

facility in the broad sense and then use the -­

define the class in a way that would limit the
 

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98 

people that were eligible for that Special
 

Exposure Cohort to maybe defined as an operation,
 

maybe defined as working at a particular building
 

or whatever. Lots of ways would be appropriate
 

to do that, but not use the definition of
 

facility in order to make that restriction if
 

that restriction is appropriate. I think the -­

DR. ZIEMER: It's more the idea of not
 

starting from the narrow point of view and
 

working outward, but starting from the broader
 

point and then narrowing down to the class from
 

there, is that correct? 

DR. MELIUS: Yeah. I think the example used
 

there is that if one had to go through and define
 

it in each building, building facility, would be
 

difficult. At the same time, there's a concern
 

that if one defined a special cohort as the
 

facility, then the whole -- everybody who ever
 

worked at the facility would be part of that
 

cohort. And I think the way this process works,
 

class would be defined and would be used, what
 

would be used to restrict the eligibility, those
 

that are in the class. That's how you'd define
 

the class.
 

DR. ZIEMER: Are you, Tony, Jim, are you
 

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99 

suggesting that this would somehow be part of the
 

definition section, or just a comment to -- in
 

other words, are you suggesting -- would you be
 

suggesting to NIOSH that they include an
 

operational definition here in this section, such
 

as you describe?
 

DR. ANDRADE: Jim -- this is Tony. 

I think Jim and I would both like to see this
 

included in the definition section. And I would
 

just like to point out that I think this provides
 

us with the flexibility that the entire Board
 

would like to see, where facility, as Jim stated,
 

is really an entire complex, if you will, in
 

certain cases like Los Alamos -­

DR. ZIEMER: Or could be, yeah.
 

DR. ANDRADE: And that a class can be used in
 

many instances for a variety of instances. It
 

could be a building; it could be an operation;
 

and so on. And so if that is clarified, then I
 

believe it will make life easier for ourselves
 

and for NIOSH.
 

DR. ZIEMER: Okay. Are you -- for proposes
 

of getting kind of closure on this issue, let me
 

suggest that one of you move the adoption of this
 

recommendation. 

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100 

DR. MELIUS: Jim. I move.
 

DR. ANDRADE: And I'll second.
 

DR. ZIEMER: Okay. Now, Board members, want
 

to comment pro or con on this recommendation? 

And the motion would be to adopt this last
 

paragraph as a recommendation with the intent
 

that it be included in some form as an
 

operational definition, right?
 

DR. MELIUS: Correct.
 

MS. MUNN: This is Wanda, and I'd like to
 

make a friendly recommendation. I think that
 

Tony and Jim have captured the crux of the
 

matter, and have proposed wording that would both
 

clarify and simplify what needs doing. 

I would suggest that rather than repeat the
 

two definitions, which might have a tendency to
 

muddy the water even more, that what we suggest
 

be included in Definitions is the statement which
 

would begin with one preceding sentence, that
 

sentence being “There are two definitions of
 

facility existing in the legislation under
 

Subtitle B, Section da-da-da, and Section 3626,
 

Designation,” period; then the last paragraph,
 

“For the proposes of this draft regulation the
 

Board recommends.”
 

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101 

DR. ANDRADE: I have no objection to that. 

This is Tony.
 

DR. MELIUS: Yeah, same. That's fine with
 

me.
 

DR. ZIEMER: Okay, any other comments?
 

MS. ROBINSON: Paul, this is Teresa from
 

Cambridge Communications. Could you make sure
 

you repeat (inaudible)? 

DR. ZIEMER: Repeat what?
 

MS. ROBINSON: Repeat what Wanda just said.
 

DR. ZIEMER: Wanda, can you repeat that? 

MS. MUNN: Yes, I can. 

I suggest that in addition to the last
 

paragraph which we are going to -- we are looking
 

at as potentially including in Definitions, that
 

we precede that paragraph with a single sentence
 

which reads, “There are two definitions of
 

facility existing in the legislation, namely, in
 

Subtitle B, Section 3621 and Section 3626,
 

Designation of Additional Member of Special
 

Exposure Cohort,” period. Then begin the final
 

paragraph as written by Jim and Tony, “For the
 

proposes of this draft regulation,” et cetera. 

DR. ZIEMER: And we can take that as a
 

friendly amendment, right?
 

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102 

MS. MUNN: Yes.
 

DR. ZIEMER: Okay. Did you get that? 

MS. ROBINSON: Yes, I did. Thank you. 

DR. ZIEMER: Again, Board members, any
 

discussion, pro or con?
 

[No responses]
 

DR. ZIEMER: There appears to be none. Is
 

that correct? Are you ready to vote?
 

[Affirmative responses]
 

DR. ZIEMER: All who approve this suggested
 

change, say aye.
 

[Ayes respond] 

DR. ZIEMER: Opposed? Let me just ask it
 

this way. Are there any Board members opposing
 

the change? 

[No responses]
 

DR. ZIEMER: Any abstaining?
 

[No responses]
 

DR. ZIEMER: I'm going to take that as,
 

rather than a roll call, everybody then voted
 

yes, just for the record.
 

DR. MELIUS: This is Jim Melius.
 

Just one follow up. Tony and I did not get
 

into the issue of facility versus facilities
 

issue, the plural issue there, just so that's
 

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103 

understood. I'm not sure we're capable of it
 

this Friday afternoon. 

MR. ESPINOSA: Paul? 

[No responses]
 

MR. ESPINOSA: Dr. Ziemer?
 

[No responses]
 

MS. HOMER: Uh-oh, we've lost him.
 

MR. ESPINOSA: Is this Cori?
 

MS. HOMER: This is Cori.
 

MR. ESPINOSA: It sounds like we lost
 

everybody.
 

DR. ANDERSON: I'm here. It's Andy. I'm
 

here.
 

MS. MUNN: Wanda's here.
 

[Affirmative responses]
 

MS. MUNN: I'm fearful we've lost our leader.
 

MR. PRESLEY: Bob Presley. I'm here.
 

DR. ANDERSON: Maybe he put his on mute.
 

MS. HOMER: Entirely possible. We will have
 

to wait for a couple of minutes to see if he can
 

reconnect.
 

MR. ESPINOSA: Did the public get cut off
 

too, or -­

[Negative responses] 

MS. BROCK: This is Denise Brock. I'm here.
 

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104 

MS. SHINAS: Betty Shinas. I'm here.
 

MS. JACQUEZ: Epifania Jacquez, I'm here.
 

MS. GONZALES: Carmen Gonzales, (inaudible).
 

UNIDENTIFIED: Quick, let's take a vote.
 

[Laughter]
 

MR. ESPINOSA: Cori, this is Rich. There's a
 

lot of background noise.
 

MS. HOMER: Yeah, I know. 

UNIDENTIFIED: Yes, there is, and it's really
 

interfering.
 

MS. HOMER: Yeah, it is. I'm not sure where
 

the background noise is coming from. 

UNIDENTIFIED: Those who have mute, if you
 

could -­

DR. ZIEMER: This is Ziemer. I got cut off. 

I'm back. Did we -- did others get cut off, or
 

just me?
 

MS. HOMER: I believe so, it was just you. 

UNIDENTIFIED: If anybody -- if everybody who
 

has a television or something could please mute.
 

DR. ZIEMER: Did that background noise come
 

on when I came on?
 

MS. MUNN: No, it did not. It was on while
 

you were quite silent. Somebody had something
 

going on in the background (inaudible).
 

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105 

DR. ZIEMER: The last thing I had was
 

everyone had agreed to Wanda's friendly
 

amendment. Were there other comments at that
 

point? Oh, we voted, didn't we?
 

[Affirmative responses]
 

DR. ZIEMER: I was still on when we voted.
 

MS. NEWSOM: Dr. Melius? Dr. Melius, you
 

made one comment about the difference between
 

facility and facilities.
 

DR. MELIUS: I was just -- yeah, that's when
 

everybody left (inaudible). 

Tony and I, we didn't get into the issue of
 

facility versus -- what facility meant, whether
 

it mean facilities or facility. 

MS. MUNN: This is Wanda.
 

Under the kind of broad definition that
 

you've given in here, I don't see that it's a
 

problem. 

DR. ANDRADE: Wanda, this is Tony Andrade.
 

The issue before us is one that has been -­

the question, I think, came from the public, and
 

that's the way it came about. And that is
 

whether there was any real limitation on defining
 

a special cohort or a piece of a special cohort
 

that could cross facility boundaries. 

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106 

And I think the comment that Jim made earlier
 

was that we might not be able to handle this this
 

afternoon. However, personally I feel that we
 

should not put any boundaries or limitation -­

I'm hearing background conversation. 

DR. ZIEMER: I am too.
 

DR. ANDRADE: We're trying to conduct
 

business here. If you're going to conduct
 

background conversations, please mute your phone.
 

In any case, what I would like to say is that
 

I would really like to see either in the
 

definitions, perhaps immediately following what
 

we just said with respect to the definition of
 

facility or in some other part of the proposed
 

legislation, that a group -- that is, a proposed
 

group that would be considered as part of a
 

special cohort not be limited in any way to cross
 

boundaries. I personally don't see any reason
 

why we can't be specific about that and just
 

adopt it this afternoon. 

DR. ZIEMER: When you say boundaries, be more
 

specific. 

DR. ANDRADE: Yeah. I'm saying if somebody
 

out there really believes that a group can
 

actually be -- set of people that worked at
 

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107 

Livermore and then worked at Mallincrodt and then
 

worked at maybe another place, or just two
 

places, and that this group comprises a situation
 

in which their doses could not be reconstructed
 

at either of the buildings or operations or so on
 

and so forth that they were involved in at two
 

different facilities, as Jim and I have defined
 

it, I don't see why that could not be considered
 

a Special Exposure Cohort. 

DR. ZIEMER: The only time that this would be
 

important would be if they didn't meet the 250­

day criteria at one or the other, and they needed
 

to add it together? Because otherwise they meet
 

the criteria anyway.
 

DR. ANDRADE: Right. And I think that -­

DR. ZIEMER: And you only need one.
 

DR. ANDRADE: You only need one. But what -­

DR. ZIEMER: But suppose they have 200 days
 

at one and 50 days at the other. Is that the
 

case you're talking about?
 

DR. ANDRADE: Exactly, exactly. And I don't
 

see any reason at this point to limit potential
 

petitioner from that sort of definition. 

DR. ZIEMER: But you haven't included that
 

here? That would be a separate comment?
 

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108 

DR. ANDRADE: It would be a separate comment. 

I'm saying that I think we can work this one out
 

this afternoon. 

DR. ZIEMER: Well, let's have input from
 

others.
 

MR. OWENS: Dr. Ziemer?
 

DR. ZIEMER: Yes.
 

MR. OWENS: This is Leon Owens at Paducah.
 

I'm struggling right now, in all due respect,
 

to the prior deliberation in regard to your
 

comment to circulate a draft to the Board, final
 

recommendation. 

Paducah, Portsmouth, Ohio, Oak Ridge, and the
 

Amchitka Island test site in Alaska, those
 

facilities were designated as Special Exposure
 

Cohorts. And I think the expectation from the
 

other sites throughout the country is that they
 

also will be treated in a like manner when they
 

petition for exposure cohort designation. And I
 

think that it is plain, the legislation is plain
 

that would allow these additional sites to
 

petition. 

And I think that the Board should consider
 

what the legislation currently states for those
 

sites who have the 21, 22 listed cancers. It
 

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109 

doesn't matter if an individual is a clerical
 

worker or if they're a process worker, if they're
 

hourly or if they're salaried. Provided that
 

they meet the Congressional intent, they qualify
 

under the Special Exposure Cohort for
 

compensation. And I think that is the
 

expectation for the other sites who are covered
 

under the DOE complex.
 

DR. ANDRADE: Are you suggesting -- this is
 

Tony Andrade -- that, for example, Los Alamos in
 

its entirety, all 47 square miles with all 7,000
 

employees, could actually be considered as a
 

special part of -- a Special Exposure Cohort? 

MR. OWENS: What I am suggesting is currently
 

in Paducah, Kentucky, provided an individual
 

meets the minimum qualifications, the 250
 

aggregate days, if they have one of the listed
 

specified cancers, by virtue of them being a
 

Special Exposure Cohort designee they receive the
 

compensation. 

And I again feel that the expectation of the
 

general public -- we're not talking about
 

individuals who are as well versed in reading
 

legislation as some of us may be; we're talking
 

about individuals who are dying by the day. 

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110 

We're talking about senior, elderly individuals,
 

and we can call them Cold War veterans if we may. 

Their expectation is that they will receive the
 

same equitable treatment as these four sites
 

have. 

DR. ZIEMER: There is a constraint placed on
 

us by the legislation that does not appear to be
 

there for the others, Leon, and that is that they
 

have to have been exposed to radiation at the
 

facility and that it's not feasible to estimate
 

their dose for dose reconstruction proposes. So
 

those are some limitations that are placed on us
 

by that legislation. 

But to the extent that there would be, for
 

example, individuals who are not in the
 

restricted areas where they are exposed, or to
 

the extent there are people whose dose
 

reconstructions can be done, it would appear to
 

me that the legislation requires us to -- in
 

place the restrictions that aren't placed on
 

those others sites. 

What the expectation of individuals is is not
 

the thing that -- we have to follow the dictates
 

of the law as Congress imposed it upon us as an
 

Advisory Board. So unless I'm misunderstanding
 

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111 

what you're saying, I think there are constraints
 

that perhaps aren't there in the legislation that
 

set up the original exposure cohort. They are
 

much more inclusive, as I would see it.
 

MR. OWENS: Well -- this is Owens again, Dr.
 

Ziemer.
 

I understand your comments. But again, I
 

think that from a credibility standpoint -- I'm
 

not expecting or asking the Board to go beyond
 

its authority. But I do feel that if -- the
 

Board should consider the expectations of the
 

public, and that way we would ensure that the
 

process itself is transparent and that the
 

credibility of the Board is (inaudible). Because
 

again we need to consider the individuals who we
 

are addressing, and also the areas within the
 

country where this work was accomplished.
 

DR. ZIEMER: Okay. 

Well, let's see. Are there -- the item we're
 

immediately talking about is whether or not to
 

include something that would allow the combining
 

of exposures at more than one site, which I think
 

would sort of parallel the other situation where
 

the existing Special Exposure Cohorts or
 

locations can be combined to get the 250 days.
 

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112 

How do others of you feel on that issue?
 

DR. MELIUS: This is Jim Melius.
 

I agree that it certainly makes sense that if
 

a person worked at more than one site and
 

accumulated dose there, and that site's part of
 

their time that would make them eligible for a
 

Special Exposure Cohort, that it could certainly
 

include more than one site or more than one
 

facility. And it seems to me that when we were
 

discussing individual dose reconstructions,
 

actually some of the examples we used I thought
 

did have more than one site or more than one
 

facility. 

And so it certainly on scientific and
 

practical grounds it doesn't make sense that a
 

person would have to prove themself in multiple
 

Special Exposure Cohorts, couldn't accumulate
 

time or whatever or other eligibility-related
 

issues for this to make them eligible for
 

compensation. So I think that does make sense.
 

MR. PRESLEY: Dr. Ziemer, this is Bob
 

Presley.
 

DR. ZIEMER: Yeah.
 

MR. PRESLEY: That definitely makes sense for
 

Oak Ridge. Many, many times we've had people
 

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113 

that have worked at Y-12 (inaudible) sites
 

(inaudible). 

DR. ZIEMER: Others?
 

MR. ESPINOSA: You're talking about with just
 

the -- this is Richard Espinosa -­

DR. ZIEMER: Yeah, Rich.
 

MR. ESPINOSA: You're talking about with just
 

the accumulation of the 250 days, correct?
 

DR. ZIEMER: Yeah. For example, if -- let's
 

say they were at two completely different sites,
 

maybe not even -- maybe Los Alamos and Rocky
 

Flats, say; and didn't have the 250 day total at
 

one or the other but together did have; and in
 

both cases were in situations where they would
 

otherwise be in Special Exposure Cohorts, I think
 

is what we're talking about, in both cases where
 

you couldn't do dose reconstructions. 

MR. ESPINOSA: Okay. I understand that. 

It's getting -- okay, I understand it in the
 

terms of the 250 days, and I agree with what's
 

being said. 

DR. DeHART: Paul, Roy.
 

If we have an individual at two different
 

sites, would both sites then have to be special
 

cohort in order to accumulate those hours or
 

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114 

those days? The mere fact that one worked at Y12 and one worked at X-10 to accumulate 250,
 

would that -- would they have to be special
 

cohort -­

DR. ZIEMER: Well, in my mind that's what
 

we're talking about, if it's going to parallel,
 

the existing thing. For example, you can get
 

your 250 days by adding together, let's say, two
 

of the gaseous diffusion plant exposures. But I
 

don't believe it allows you to use part of one of
 

those and some completely other exposure that's
 

not on the list, right?
 

DR. DeHART: That seems to make sense, and
 

that's why I asked the question.
 

DR. MELIUS: This is Jim Melius. 

I also think there might be situations out
 

there, whether it be a group of workers that
 

worked at multiple sites, and that we would want
 

to define that as a Special Exposure Cohort, not
 

worry about -­

DR. ZIEMER: That could grow out of the
 

regular process, could it not?
 

DR. MELIUS: I'm not -- it's not completely
 

(inaudible) that it could. But I think that's
 

one of the other examples we want, (inaudible)
 

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115 

the other situations we'd want to include in
 

(inaudible) possibility for.
 

MR. ESPINOSA: This is Richard Espinosa
 

again.
 

I agree with what Dr. Melius said. As a
 

sheet metal worker, I can work at 15 different
 

sites at LANL in just a week's time, and I can be
 

exposed to numerous different items. And so the
 

250 days is a concern, not to mention we're going
 

to have to rely on the contractor's recordkeeping
 

on where the person was scheduled at at that
 

time.
 

DR. ANDRADE: Richard, this is Tony Andrade.
 

That's precisely why I was proposing what
 

we're talking about, is this potential for
 

including different physical locations, whether
 

they are at the same complex or maybe workers who
 

went to different places around the country, so
 

long as they had been employed for a total of 250
 

days no matter where they were in situations in
 

which they could potentially have been exposed. 

Then I think that this is a friendly sort of
 

definition that we can use, and that it would be
 

consistent with other policies that we've helped
 

draft.
 

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116 

MR. ESPINOSA: Yeah, I agree with you, Tony,
 

with what you're saying. I hope I didn't make it
 

sound like I wasn't agreeing with you. 

But also what Dr. Melius says, in the SECs
 

alone there's going to be classes of employees
 

such as building trades or guards or RCTs.
 

DR. ANDRADE: Right.
 

MR. ESPINOSA: So I certainly agree with
 

what's being said.
 

MR. GRIFFON: This is Mark Griffon.
 

I agree with Tony's amendment, too, and I
 

just -- I can give one case that I think might
 

help to -- a theoretical case that might to
 

clarify. 

I mean, I can think of a situation of the old
 

traveling radiation technician that may have went
 

to several DOE facilities, and they as a group
 

might decide to petition as one class, but they
 

weren't necessarily at just one facility. 

DR. ANDRADE: Yeah, right.
 

MR. GRIFFON: And part of the reason you
 

can't determine their dose maybe is that they
 

were -- the nature of their work, and they had
 

similar types of activities at all the facilities
 

they went to. So that might help clarify it.
 

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117 

But I agree with Tony's recommendation. 

DR. ZIEMER: Tony, did you formalize that
 

recommendation in the form of a motion?
 

DR. ANDRADE: I can't think of the words
 

right now, Paul. Perhaps somebody could help me,
 

but I would say that the class definition is not
 

limited, would not be limited to workers at one
 

facility. 

I don't know, Jim. Maybe -­

DR. ZIEMER: Tony, it seems to me we could
 

have both situations. One would be a class of
 

workers that were in multiple facilities; the
 

other might be an individual worker who could be
 

part of two classes.
 

DR. ANDRADE: Absolutely. 

DR. ZIEMER: If you understand what I'm
 

saying.
 

DR. ANDRADE: Yeah.
 

DR. ZIEMER: But who did not have sufficient
 

time in one or the other facility by itself to be
 

actually in the class who otherwise would be.
 

DR. ANDRADE: Yeah, that's very inclusive.
 

DR. ZIEMER: Because it could be a unique
 

situation for that worker in terms of the
 

combination of places they went to, and might
 

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118 

have otherwise been included in an SEC but didn't
 

have enough days at the particular site, but
 

taking two or three sites together perhaps would
 

have. Which could either apply to an individual
 

or even a group at some point that could become a
 

new exposure cohort that included in itself
 

multiple facilities.
 

DR. ANDRADE: Right.
 

DR. ZIEMER: But as a starting point that you
 

wouldn't have to have that situation, as I
 

understand what you're recommending. 

DR. ANDRADE: That's correct. 

MR. GIBSON: This is Mike Gibson.
 

I have to agree with that, and especially in
 

light of the fact that under 31.61 workers have
 

preferential hiring at other DOE sites, so as a
 

lot of them get laid off at their home facility
 

they move, go on to another DOE facility. 

DR. ZIEMER: So what this recommendation
 

would be, something along the lines that the
 

Board recommends that NIOSH consider including or
 

allowing -- I don't have the wording -- allowing
 

the individuals to combine exposures in -- I'm
 

going to put it in just kind of just rough idea ­

- in what would otherwise be separate SECs in
 

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119 

order to receive the 250 day total.
 

MR. PRESLEY: Dr. Ziemer, this is Bob
 

Presley.
 

DR. ZIEMER: Yeah.
 

MR. PRESLEY: Tony used the word exposure
 

(inaudible) date or something like working days.
 

DR. ZIEMER: Yeah, working days.
 

MR. ESPINOSA: Dr. Ziemer?
 

DR. ZIEMER: Yeah.
 

MR. ESPINOSA: The preamble says NIOSH will
 

use 250 days employment only when it lacks
 

sufficient basis to establish a lower minimum. 

Should this be -­

DR. ZIEMER: Well, there is a case where if
 

it was an incident like a criticality incident,
 

where all you have to do is show that you were
 

present during -- and that might be like one day. 

That is a very special case. Is that what you're
 

referring to?
 

DR. MELIUS: Yeah, this is Jim Melius.
 

I guess I would -- since we don't have all
 

the examples yet, I just think our language
 

should at least be general enough that what if a
 

person with a series of incidents or whatever
 

that was required, so you're required that you
 

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120 

have three weeks' of high involvement or a series
 

of these incidents or something. I think we can
 

craft language that maybe would use appropriate ­

-

DR. ZIEMER: The incident case, though,
 

generally all you have to show is you're present
 

at one of them and you've made it, right?
 

DR. MELIUS: I guess all I'm saying is that
 

we don't know that NIOSH is always going to use ­

- it's only going to be incident cases where
 

you're there, present or not present, or 250
 

days. Could there be something in between? And
 

I think they've left it open, that they could
 

define it in the absence of a definition. 

DR. ZIEMER: Yeah. The, quote, “incident”
 

might be longer than one hour, one day. It might
 

be something less than 250 but longer than a day.
 

DR. MELIUS: Yeah. And I just think if we
 

make our language appropriate, (inaudible)
 

recommend to NIOSH make it appropriate to
 

whatever parameters that are defined for that. 

DR. ZIEMER: Okay. The words need to be
 

polished here. 

I'm trying to see, is there kind of
 

consensus? We don't have a formal motion. Is
 

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121 

there a consensus that we should include some
 

wording along this line? Any objection? 

MR. GIBSON: Can I make one that -- Dr.
 

Ziemer, this is Mike.
 

DR. ZIEMER: Yeah, Mike.
 

MR. GIBSON: One additional comment, that the
 

reference to the 250 day criterion is in the
 

preamble and not in the rule. Should we not also
 

include that part in with this that we're
 

deliberating, the rulemaking part, recommend that
 

the NIOSH? 

MR. ESPINOSA: Yeah, that's the point that I
 

was trying to make.
 

DR. ZIEMER: Oh, I see. That the rule
 

doesn't require -­

MR. KATZ: This is Ted Katz. Let me
 

(inaudible) something out here. 

It is in the rule. It's not just in the
 

preamble. The rule specifies -­

DR. ZIEMER: This is Ted Katz, I think. 

Ted, help us out. Where is this? 

MR. KATZ: And it's in Section 83.13 -- oh, I
 

don't have my finger on it. I assure you it's in
 

here very specifically. Oh, here. It's under -­

these are hard to find -- 83.13, then subsection
 

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122 

-- just above subsection small (c), which is on
 

page 113 -­

DR. ZIEMER: Yeah, it's the middle column on
 

11309, top paragraph. 

MR. KATZ: Right. Middle column, top
 

paragraph. That's where it's specified. 

MS. MUNN: This is Wanda.
 

It's also included in the original law.
 

MR. KATZ: Right. It comes from -- well, it
 

relates to EEOICPA, which specified 250 work days
 

MS. MUNN: Correct.
 

MR. KATZ: -- for the folks at the gaseous
 

diffusion plants. So it relates to that. 

DR. ZIEMER: Okay.
 

UNIDENTIFIED: Give me the page it's on in
 

the typewritten copy.
 

DR. ZIEMER: Typewritten copy -­

UNIDENTIFIED: Page 82.
 

UNIDENTIFIED: 82.
 

MR. KATZ: Page 82, the last full paragraph,
 

double I.
 

DR. ZIEMER: It's about four lines from the
 

bottom on 82.
 

UNIDENTIFIED: Okay, I see that. 

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123 

MR. KATZ: Dr. Ziemer?
 

DR. ZIEMER: Yeah.
 

MR. KATZ: This is Ted Katz again.
 

I just thought I'd also help you, at least
 

try to help you out with the two recommendations
 

you're formulating. 

The one about defining of classes at
 

potentially including multiple facilities, that
 

one's very clear what you're recommending there. 

The second about recommending that days, if
 

you're in multiple classes, if you sort of
 

qualify to be in multiple classes that you would
 

aggregate the days if necessary from multiple
 

classes. But you could do that -- the only
 

clarity I just wanted to give you on that, I
 

think that recommendation you're making is really
 

a recommendation to the Department of Labor,
 

because the Department of Labor will determine
 

compensation. All we're defining is who is
 

included in a class. But as far as aggregating
 

days for people in different classes -­

DR. ZIEMER: Yeah, I guess -- the concern we
 

have here, that somebody is excluded from a
 

particular class because they have, say, only 200
 

days, and also they worked somewhere else and
 

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124 

there's a separate class where they worked, let's
 

say, 100 days. And the point is they should be
 

allowed to aggregate those. And you're saying
 

Labor will already do that? Because they're not
 

in either of the classes since they didn't
 

qualify. 

MR. KATZ: No. And I wasn't saying Labor
 

would already do that. I mean, Labor just does
 

that for the folks at the gaseous diffusion
 

plants, aggregates the days.
 

DR. ZIEMER: Yeah, yeah.
 

MR. KATZ: What I'm saying, I guess it wasn't
 

clear to me what was being meant, then, about -­

are you talking about making a class out of the
 

individuals that are in two separate classes but
 

don't qualify -­

DR. ZIEMER: No, not necessarily. That could
 

occur if there was a lot of people that had the
 

same pattern. 

I think what we're saying is suppose you have
 

a class, and there's an individual who would
 

otherwise qualify for that class except they
 

don't have enough days. And that individual also
 

worked somewhere else where there's another
 

class, and they don't meet -- they don't have
 

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enough days there either, but taken together
 

would have enough days for that individual. 

MR. KATZ: Right. No, so I understood that,
 

really. 

I guess my question is are you trying to
 

recommend that NIOSH create this new aggregate
 

class, or -­

DR. ZIEMER: Well, does that become a new
 

class if they have two pieces like that? 

MR. KATZ: Well, I don't know. I think it's
 

sort of a knotty problem. I mean, with you -­

the classes are going to be defined and must be
 

defined generically, I think, in terms of what
 

job categories, et cetera, what time period, as
 

(inaudible) explained in these regulations. But
 

then you're -­

DR. ZIEMER: Well, let's talk about the
 

parallels. Suppose you have someone who worked
 

at one of the gaseous diffusion plants but
 

doesn't have enough days there, and therefore is
 

not in that class. Or are they all the same
 

class, all the gaseous diffusion plants are
 

considered the Special Exposure Cohort, so they
 

all -- they automatically combine, don't they?
 

MR. KATZ: Yeah. DOL just automatically -­

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126 

DR. ZIEMER: So we don't have the exact
 

parallel here.
 

MR. KATZ: -- in terms of that 250 days.
 

DR. MELIUS: This is Jim Melius.
 

Why don't we just recommend that NIOSH figure
 

out how to do this?
 

DR. ZIEMER: Yeah, yeah. The intent of what
 

we're trying to do, I guess, is clear. How it
 

would be carried out in a particular case would
 

remain to be delineated, probably. But at least
 

the principle could be there that you might allow
 

this to occur. 

DR. ANDERSON: I would agree with that. I
 

don't think we have to wordsmith it for them.
 

MS. MUNN: This is Wanda. 

Didn't we cover that pretty much when early
 

on we added the “occupational” word in the
 

sentence, if the employee had a sufficient
 

radiation exposure, occupational radiation
 

exposure outside of his work experience as a
 

member of the cohort to qualify for compensation,
 

then his dose reconstruction could be completed
 

on the basis of his extraneous work history? 

Didn't that get everybody -­

DR. ZIEMER: Well, that would -- this would
 

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be a case where they didn't qualify for -- they
 

didn't really have other work that qualified by
 

itself. 

I don't know. That was in the preamble also,
 

I think. 

MS. MUNN: Yeah, it was.
 

DR. ZIEMER: Again, I'll craft some words
 

here as part of this document, and then you'll
 

have a chance to look at it. 

We're getting close to the end here. I want
 

to see if we can sort of finish up where we are.
 

After the facility issue, Section 1130 -- or
 

page 11307, it's Section 83.9, paragraph (c),
 

Arabic (2), Roman numeral (iii). We had a
 

rewording of that section that was provided by
 

Mark Griffon which we agreed to last time. The
 

rewording of that section is as follows:
 

“A report from a health physicist or other
 

individual with expertise in dose reconstruction
 

describing the limitations of DOE or AWE records
 

on radiation exposure at the facility, as
 

relevant to the petition. This report should
 

specify the basis for believing the stated
 

limitations might prevent the completion of dose
 

reconstructions for members of the class under 42
 

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128 

CFR part 82 and related NIOSH technical
 

implementation guidelines.”
 

That's what we agreed to last time. I'm just
 

reiterating it here for the record.
 

Also, on page 11307, column three, Section
 

83.9, the very next paragraph, (c)(2) Roman
 

numeral (iv), we reworded that section simply to
 

provide clarity. It now will read:
 

“A scientific or technical report published
 

or issued by a governmental agency or published
 

in a peer-reviewed journal that identifies
 

dosimetry and related information that is
 

unavailable,” and so on. And then we delete the
 

last part of the sentence beginning with the
 

phrase “and also finds,” to the end of the
 

sentence. 

Am I going too fast?
 

[No responses]
 

DR. ZIEMER: The next change I have is page
 

11307, column three, it's also Section 83.9. 

It's paragraph (3) and continues through the top
 

of the page on 11308. The comment is this:
 

“This portion of the” -- and this is Jim
 

Melius' work -- “This portion of the section
 

deals with exposure incidents and describes the
 

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129 

process for evaluating the information required
 

for such incidents in the event that NIOSH is
 

unable to obtain records or confirmation of the
 

incident. The Board recommends that NIOSH
 

consider where the placement of this part of the
 

section should be within the rule, since it
 

refers to information required after the petition
 

has been evaluated by NIOSH. As presently
 

located, this portion could be confusing to the
 

petitioner.”
 

And then the next change we have is page
 

11308, columns two and three. It's Section 83.9
 

also. It also is paragraph (3), Roman numerals
 

(i) and (ii). I believe this is Jim Melius'
 

wording that we accepted also. It says:
 

“These paragraphs require either medical
 

information or witness affidavits in the event
 

that the exposure incident cannot be confirmed. 

For the requirement that two employees who
 

witnessed the accident submit affidavits, the
 

Board recommended that the petitioner be counted
 

as one of these two witnesses if the petitioner
 

was an individual employee who witnessed the
 

incident.”
 

And then another, continuing: 

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130 

“The Board is also concerned that a
 

petitioner may have difficultly finding witnesses
 

to an exposure incident that occurred many years
 

ago. Witnesses may no longer be living or may be
 

difficult to identify or locate. In such cases
 

the Board recommends that NIOSH offer the option
 

for other parties to submit confirmation of the
 

incident in the absence of available eyewitnesses
 

or records.”
 

And then page 11308, column one, Section
 

83.11(b):
 

“The Board is concerned that there is no
 

further appeal process for petitions that do not
 

satisfy the relevant requirements. Accordingly
 

the Board recommends that NIOSH explore possible
 

appeal mechanisms within the DHHS for such
 

cases.”
 

I'll just add parenthetically that was a
 

situation where we had the discussion as to
 

whether the inadequate petition should have yet
 

another appeal route if it was turned down. It
 

would basically be after the second turndown.
 

And then that brought us up to the point
 

where we started our discussions today, to 83.13. 

So that's kind of an overall summary of what
 

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131 

I have so far.
 

Does anyone -- has anyone identified any
 

additional points that I've excluded here?
 

[No responses]
 

DR. ZIEMER: I'm hearing some conversation. 

Am I missing somebody's discussion? 

[No responses]
 

MS. MUNN: I don't think you are. Somebody's
 

discussion has been going on, office background
 

noise for an hour.
 

DR. ZIEMER: Then let me ask, we are going to
 

need at least a final conference call. 

What I will have will be some proposed
 

wording for this section on -- well, let's see. 

We'll polish up the facilities thing. I think
 

we're okay. We just need a second point on the
 

250 day thing, and then need to have the other
 

issue on the specific cancer issue wording dealt
 

with. 

So as I say, I'll work on a straw man for
 

that and get it out to you, and then we need to
 

have one final conference call, I would say
 

sometimes in the next few weeks.
 

Cori?
 

MR. ELLIOTT: Dr. Ziemer, Cori had to leave
 

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132 

the call -­

DR. ZIEMER: Okay. Should we identify a
 

time, though? 

MR. ELLIOTT: Yes, if you would, please. 

We'll have to get it in the Federal Register, and
 

so we need to do that before May -­

DR. ZIEMER: It would be better if we had at
 

least two weeks to get time for the notice to get
 

out and so on.
 

MR. ELLIOTT: Yes.
 

DR. ZIEMER: And that suggests that it be
 

sometimes perhaps no earlier than April 11th. It
 

could go later. Let me try some things here that
 

would still be timely.
 

How's April 18th?
 

MR. ESPINOSA: April 18th's perfect for me.
 

DR. ZIEMER: Anyone for whom April 18th would
 

be bad?
 

UNIDENTIFIED: Yeah.
 

DR. ZIEMER: It's Good Friday.
 

MS. MUNN: I'll be in Beijing.
 

DR. ZIEMER: Okay. 

DR. MELIUS: Jim Melius. That's bad for me 

also. 

DR. ZIEMER: Okay. How about April 11th? 

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133 

MS. MUNN: April 11th, can do it.
 

DR. ZIEMER: Two weeks from today.
 

DR. MELIUS: Yeah, that'd be fine with me. 

Only thing, we do have until May 6th, so -­

DR. ZIEMER: Yeah, so it can be later.
 

Wanda, you're going to be in Beijing over
 

what period?
 

MS. MUNN: I will be on the mainland until -­

DR. ZIEMER: Starting when?
 

MS. MUNN: Starting the 15th until the 1st of
 

May.
 

DR. ZIEMER: We probably could go as late as
 

May 1st if we have to.
 

DR. DeHART: This is Roy. I will have
 

returned by the 23rd of April.
 

DR. ANDERSON: How about the second of May?
 

UNIDENTIFIED: (Inaudible) for me.
 

DR. ZIEMER: I have a problem on the second.
 

DR. ANDERSON: The first is okay. 

DR. ZIEMER: Roy, you're gone through what
 

period?
 

DR. DeHART: I'll be back on the 23rd, back
 

in the office on the 24th of April.
 

MS. MUNN: I could handle the first. I will
 

be back home on the first.
 

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134 

DR. ZIEMER: How are others on the first of
 

May?
 

DR. ANDERSON: After 2:00 your time.
 

DR. ZIEMER: Two o'clock May 1st. I don't
 

think we need -- if we just have this one thing
 

to polish up, it shouldn't take quite as long.
 

DR. ANDERSON: How about 3:00 o'clock
 

Eastern?
 

DR. ZIEMER: Three o'clock okay? 

MS. MUNN: That's fine with the West Coast.
 

DR. ZIEMER: Three to five?
 

UNIDENTIFIED: I wouldn't shortchange this
 

one topic, though. 

DR. ZIEMER: No, okay. 

UNIDENTIFIED: But I hope we can resolve it
 

before.
 

DR. ZIEMER: Well, if we have draft copy
 

ahead of time we can do some polishing on it.
 

UNIDENTIFIED: Okay. 

DR. ZIEMER: Is everybody okay for May 1st,
 

3:00 p.m.?
 

MS. MUNN: Sounds good.
 

DR. ZIEMER: Larry, okay? 

MR. ELLIOTT: Yes, we can do that. 

DR. ZIEMER: And comments are due to the
 

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135 

Board -- or to the -- yes, to NIOSH and to the
 

Secretary, then, by the sixth. 

But basically what I'm going to provide you
 

with is not only the draft of all the comments,
 

then plus this stuff we talked about today, but
 

I'll also provide a draft of a cover letter which
 

I already have ready. The cover letter doesn't
 

say what we're going to say, it just says that
 

our comments are attached, basically. But it
 

tells a little bit about the process of
 

deliberation for this information.
 

Okay, we'll plan, then, to meet on telephone
 

conference on April 1st -- May 1st, I'm sorry. 

This will be open to the public as well. We will
 

have public comment period as well at that point. 

MS. JACQUEZ: Excuse me, I've got to ask a
 

question. How are you going to notify 10,000
 

claimants about this conference call?
 

DR. ZIEMER: The only way we can do this is
 

the way we do it now, and that's through the
 

Federal Register and on our Web site. We have no
 

mailing list for these that I'm aware of.
 

MS. JACQUEZ: But if they don't have a
 

computer they don't know (inaudible) proceedings
 

is going on. So you're not really fully
 

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136 

informing the public. These claimants are not
 

being informed, and that's not right.
 

DR. ZIEMER: Well -­

MS. JACQUEZ: You have five callers coming
 

in. It was word of mouth. But you need to
 

inform them. Something needs to be done, because
 

you're not informing these claimants about these
 

conference calls -­

MS. ROBINSON: Excuse me, who is this -­

MS. JACQUEZ: And they need to hear all this. 

DR. ZIEMER: Well, we're trying to do it in
 

the way that's legally required, and that's -­

we're trying our best. 

The intent of the conference call is for the
 

Board to deliberate, and if you have folks that
 

you know that would be interested we'd be pleased
 

to have you pass the word along to them. That
 

would be fine.
 

MS. JACQUEZ: Well, you might consider
 

finding a way to inform claimants about what is
 

going on here.
 

MS. ROBINSON: Excuse me, who is speaking? 

MS. JACQUEZ: A claimant. 

MS. ROBINSON: Say it again, please? 

MS. JACQUEZ: It's a claimant. 

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137 

DR. ZIEMER: Yeah, for the record, I think -­

MS. JACQUEZ: For the record I have every
 

right to ask whatever question -­

DR. ZIEMER: No, no. But we do keep -­

MS. JACQUEZ: Oh, (inaudible). 

DR. ZIEMER: We keep a transcript, if you
 

don't mind identifying yourself for the
 

transcript. 

MS. JACQUEZ: Excuse me, Epifania Jacquez. 

And I'm speaking to Wanda, am I not?
 

DR. ZIEMER: No, that was the transcriber who
 

asked for the identity for the record. 

MS. JACQUEZ: Okay. 

DR. ZIEMER: Okay, thank you very much. 

It's now the 5:00 o'clock hour, and we do
 

need to adjourn. I thank everybody for their
 

participation today. We will then reconvene at
 

the appropriate time on May 1st. And this
 

meeting is adjourned.
 

UNIDENTIFIED: I'm so glad we have a better
 

connection.
 

MS. BROCK: This is Denise Brock. Do you
 

have time for any more public comment, or do you
 

have -­

DR. ZIEMER: No, we're required to adjourn
 

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138 

this at 5:00 o'clock, so thank you. 

MS. BROCK: At five? Okay. Well, I would
 

like to -­

DR. ZIEMER: But I would mention, Denise and
 

any others, if you -- the comments, all the
 

public comments are very important for NIOSH in
 

their deliberations. And if you have additional
 

comments it's good for you to write them and
 

submit them. Those will go on the public record
 

and on the Web site, and are accessible to the
 

Board as well.
 

MS. BROCK: Could you tell me where to send
 

that to? I know I probably -­

DR. ZIEMER: Yeah.
 

Larry, can you give us -­

MR. ELLIOTT: If you'll look in the Notice of
 

Proposed Rulemaking, at the back of it it tells
 

you how to submit -­

MS. BROCK: Right there? Okay. Well, thank
 

you very much. 

DR. ZIEMER: Yeah, that actually -- actually
 

it's -- is it on the last page?
 

MS. BROCK: I actually have that with me. 

Let me look, and I probably should have seen it.
 

MR. GRIFFON: Paul, this is Mark Griffon.
 

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139 

One more question while she's looking. The
 

next call, are we going to have time to -- you
 

said that you're going to work on a straw man for
 

this language. I would offer to give some input
 

to you on that ahead of time.
 

DR. ZIEMER: Oh, yeah. Oh, yeah.
 

MR. GRIFFON: On the specified cancer issue.
 

DR. ZIEMER: Yeah, please do.
 

MR. GRIFFON: Because this call, I got cut
 

off three times in today's call, and I heard
 

static all -- you know, it was really difficult
 

to exchange ideas.
 

DR. ZIEMER: I'll solicit from any of you
 

that want to suggest some specific wording, just
 

shoot it in to me and I'll try to fairly meld it
 

together and get it out. How's that sound?
 

MS. GONZALEZ: If I may, just one additional
 

before we leave, and I'm Carmen Gonzalez, another
 

claimant. 

I just need to know when the public
 

commentary is going to take place, because if
 

it's at the beginning or is it going to be at the
 

end, so that people will be -- make sure to be
 

there at the beginning of this.
 

DR. ZIEMER: I think we'd prefer to have it
 

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140 

at the beginning, so that we're sure to hear that
 

before our deliberations. 

MS. GONZALEZ: Okay. That's good. Thank
 

you. 

DR. ZIEMER: Thank you very much. 

MR. ELLIOTT: Denise, this is Larry.
 

MS. BROCK: Hi, Larry.
 

MR. ELLIOTT: If you look on the first page
 

of your Federal Register notice and rule, you'll
 

find it there. It says addresses down under
 

Summary.
 

DR. ZIEMER: Yeah, written comments.
 

MS. BROCK: Yeah, I've got that. And thank
 

you very much. I don't know why I didn't notice
 

that part before, but I appreciate that. And
 

thank you very much. 

DR. ZIEMER: Yeah. And actually it's very
 

good to do it that way anyway, because then it
 

really gets on the public record for sure, not
 

just in our minutes.
 

MS. BROCK: Okay. And I just -- this was
 

wonderful today, but there was so much background
 

noise. And somebody -- it was so rude. You
 

could hear -­

DR. ZIEMER: It was difficult for us. 

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141 

MS. BROCK: It was awful (inaudible). 

MR. GRIFFON: Paul -­

DR. ZIEMER: Again, thank you, everyone.
 

MR. GRIFFON: Paul, one more question. Mark
 

Griffon.
 

DR. ZIEMER: Yeah, Mark.
 

MR. GRIFFON: The transcripts from our last
 

Cincinnati meeting, would they be available prior
 

to our next conference call? Is that possible? 

MR. ELLIOTT: This is Larry -­

MR. GRIFFON: Because there were good
 

explanations by Ted Katz and Jim Neton, and I
 

just wanted to review those.
 

DR. ZIEMER: Yeah, I don't think I've seen
 

them.
 

Larry, do you know where -­

MR. ELLIOTT: Yes, I can answer that
 

question. The transcripts from the March 7th
 

meeting will be on the Web site next week, I
 

believe. 

MR. GRIFFON: Next week? So we'll have them
 

before our next conference call, definitely?
 

MR. ELLIOTT: They'll be there before the
 

next conference call.
 

MR. GRIFFON: Okay, thank you. 

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142 

DR. ZIEMER: Okay, thank you, everyone. 

We're adjourned.
 

[Whereupon, the meeting was adjourned at
 

approximately 5:05 p.m.] 

NANCY LEE & ASSOCIATES
 
 

143 

C E R T I F I C A T E
 

STATE OF GEORGIA )

 )
 

COUNTY OF DEKALB )
 

I, KIM S. NEWSOM, being a Certified Court
 

Reporter in and for the State of Georgia, do hereby
 

certify that the foregoing transcript, consisting of
 

139 pages, was reduced to typewriting by me personally
 

or under my direct supervision, and is a true,
 

complete, and correct transcript of the aforesaid
 

proceedings reported by me.
 

I further certify that I am not related to,
 

employed by, counsel to, or attorney for any parties,
 

attorneys, or counsel involved herein; nor am I
 

financially interested in this matter.
 

This transcript is not deemed to be certified
 

unless this certificate page is dated and signed by
 

me.
 

WITNESS MY HAND AND OFFICIAL SEAL this 22nd day
 

of April, 2003. 

KIM S. NEWSOM, CCR-CVR
 CCR No. B-1642
 

[SEAL]