Chapter 2-500 Establishing Covered Employment with the Department of Energy

1. Purpose and Scope. This chapter describes the policies and procedures for establishing covered employment for employees suffering from designated illnesses incurred as a result of exposure to radiation, beryllium, or silica while in the performance of duty for the DOE and certain of its vendors, contractors and subcontractors.

2. Cancer Employment and Exposure Criteria. 42 U.S.C. 7384l(9)(A)(B) and 7384l(17) of the statute describe the two categories of employees with a diagnosis of cancer for which the EEOICPA provides compensation. After verifying employment, the CE is responsible for reviewing the employment history of the person named as an employee in a claim for compensation to ensure that he/she meets the necessary criteria to be included in one of the following categories:

a. A DOE employee, a DOE contractor employee, or an atomic weapons employee who was exposed to radiation in the performance of duty, contracted cancer after such employment, and whose cancer is "at least as likely as not related to such employment."

b. A member of the Special Exposure Cohort (SEC) who was a DOE employee, a DOE contractor employee, or an atomic weapons employee who contracted a specified cancer after beginning such employment.

3. Claims for the Special Exposure Cohort(SEC). Under the Act, certain groups of employees are designated members of the SEC; in addition a group or class of employees can be designated by the U.S. Department of Health and Human Services as a member of the SEC. An individual employee who is included in a designated SEC group or class of employees and is diagnosed with a specified cancer receives a presumption of causation. In other words, if the employee meets the necessary employment and medical criteria to be included in the Special Exposure Cohort, the DOL accepts that the person's employment caused cancer.

The CE can identify a potential claim included in the SEC by reviewing the information presented on the initial claim form. The person filing a claim under the EEOICPA can identify inclusion in a SEC by checking the appropriate section on forms EE-1 or EE-2. In addition, the person filing the claim can identify the particular location that may qualify them for consideration for the SEC.

a. For the purposes of establishing eligibility as a member of the SEC, the identified employee must have been a DOE employee, DOE contractor employee, or an atomic weapons employee who was:

(1) Employed for an aggregate of 250 workdays before February 1, 1992, at one or more gaseous diffusion plants (GDP) located in Paducah, Kentucky; Portsmouth, Ohio; Oak Ridge, Tennessee and;

(2) During such employment was monitored through the use of dosimetry badges for exposure to radiation, or worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.

(a) If the claimant qualifies for inclusion in the SEC on the basis of working at a GDP, but has not indicated having worn a dosimeter on the EE-3 form, the CE will be required to determine whether the claimant had exposure within a time period during which his/her exposure was comparable to a job that is or was monitored through the use of dosimetry badges. The CE is to compare the dates of employment with the following:

Paducah GDP: 7/52 – 2/1/92

Oak Ridge GDP: 9/44 – 12/87

Portsmouth GDP: 9/54 – 2/1/92

(b) If the employee had exposure at the GDP during any of these periods, the CE will assume that he/she had equivalent exposure.

(c) If there is no evidence to support that the employee was employed during these periods, the CE is to request additional information from the claimant regarding whether the employee wore a dosimetry badge.

(3) Employed before January 1, 1974, by the DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.

(a) Underground nuclear testing/explosions occurred at Long Shot, Milrow, and Cannikin. The first detonation occurred at Long Shot on October 29, 1965. The 80 kiloton underground nuclear explosion leaked radioactivity into the atmosphere. Radioactive contamination on Amchitka Island occurred as a result of activities related to the three underground nuclear tests and releases from Long Shot and Cannikin.

(b) It is believed that as a result of these airborne radioactive releases, SEC members, per the definition in EEOICPA, 42 U.S.C. 7384l(14)(A)(B)(C), who worked on Amchitka Island could have been exposed to ionizing radiation from the Long Shot underground nuclear test beginning a month after the detonation (unless the claimant can show that s/he was exposed after the shot but before the month). The exposure period could be from approximately December 1, 1965 and January 1, 1974.

(4) A member of a group or class of employees subsequently designated as additional members of the SEC by the HHS. Any addition to the SEC is designated by HHS. DOL has no authority in this regard. Any such requests should be referred to HHS.

4. Beryllium Employment and Exposure Criteria. In order to establish that an employee was exposed to beryllium in the performance of duty, a claimant must establish qualifying employment and exposure as follows.

a. Employment criteria. Inclusion in one of the following:

(1) The employee is a current or former employee as defined in 5 U.S.C 8101(1) who may have been exposed to beryllium at a DOE facility or at a facility owned, operated, or occupied by a beryllium vendor. The definition of a current or former employee includes:

(a) A civil officer or employee in any branch of the government of the United States, including an officer or employee of an instrumentality wholly owned by the United States;

(b) An individual rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual;

(c) An individual, other than an independent contractor or individual employed by an independent contractor, employed on the Menominee Indian Reservation in Wisconsin in operations conducted under a statute relating to tribal timber and logging operations on that reservation;

(d) An individual appointed to a position on the office staff of a former President; or

(e) An individual selected and serving as a Federal petit or grand juror.

(2) The employee is a current or former employee of any one of the following:

(a) One of the eight beryllium vendors that are identified in the Act as statutory beryllium vendors. The identified entities are: Atomics International, Brush Wellman, Inc., and its predecessor, Brush Beryllium Company; General Atomics; General Electric Company; NGK Metals Corporation and its predecessors, Kawecki-Berylco, Cabot Corporation, BerylCo, and Beryllium Corporation of America; Nuclear Materials and Equipment Corporation; StarMet Corporation and its predecessor, Nuclear Metals, Incorporated; and Wyman Gordan, Incorporated. Any employee of a corporation that is defined as a beryllium vendor in the statute is a “covered employee” if he or she was employed by that corporation at any time that the corporation produced or processed beryllium for the Department of Energy (DOE) at any of its facilities;

(b) Any contractor or subcontractor that provided services, including construction and maintenance at a DOE facility; or

(c) A beryllium vendor, or a contractor or subcontractor of a beryllium vendor, during a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the DOE.

b. Exposure Criteria. The employee named in a claim for a beryllium illness establishes exposure to beryllium by being present at a DOE or beryllium vendor facility when beryllium dust, particles or vapor may have been present. The claimant must meet one of the following exposure criteria:

(1) A current or former employee who may have been exposed to beryllium at a DOE facility or at a facility owned, operated or occupied by a beryllium vendor.

(2) A current or former employee of a beryllium vendor, or of a contractor or subcontractor of a beryllium vendor, during a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the DOE.

5. Silicosis Employment and Exposure Criteria. 42 U.S.C. 7384r(b)(c) describes the employment requirements for an employee diagnosed with chronic silicosis. The CE must review the evidence with the claim to ensure that he/she was:

a. An employee of the DOE or a DOE contractor employee; and

b. Present for a number of work days aggregating at least 250 work days during the mining of tunnels at a DOE facility located in Nevada or Alaska for tests or experiments related to an atomic weapon.

6. Uranium Employment and Exposure Criteria. 42 U.S.C. 7384u(a) describes the eligibility requirements for certain uranium employees. The requirements under EEOICPA for uranium employees are distinctly different from any of the other covered employees. In order to be eligible under EEOICPA, the Attorney General of the Department of Justice must have determined that a claimant is a covered uranium employee or surviving eligible beneficiary of such employee who is entitled to a payment of $100,000 as compensation due under section 5 of the Radiation Exposure Compensation Act for a claim made under that Act. See PM 2-900, Eligibility Criteria for Certain Uranium Employees, for the specific requirements under EEOICPA.

7. Designated AWE/Be facilities. In order for any AWE or Beryllium vendor (other than the eight statutory vendors) facility to be covered, it must be listed in the Federal Register List developed by DOE. If such a facility is on DOE’s web site, but is not on the Federal Register list, it will not be considered a covered facility.

a. Subcontractors and contractors of AWE facilities are not covered.

b. When a designated AWE/Be vendor is identified, the CE must access the DOE web site to determine whether the dates of employment fall within the time frames set forth by DOE. The web site allows access to the Facility List Database. The CE may view the facility by facility name, state or location.

8. A designated AWE/Be is identified, but the dates of employment fall totally outside of the covered period of time (per the DOE web site). This section describes the actions the CE is to take when employment has been claimed at a designated AWE/Be facility, but the dates of employment fall outside of the covered period of time (per the DOE web site).

a. If on initial review of an incoming claim, the CE notes employment at a designated AWE/Be facility, but the claimed period of employment is outside of a time frames on the DOE web site, the following actions are to be taken:

(1) The CE should prepare a letter to the claimant. The letter should state that the dates of employment fall outside of the established covered period of time. The claimant should be advised to supply evidence of employment during the established period or provide documentation that would substantiate expanding the dates beyond those that are currently established.

(2) The CE should determine whether any evidence submitted by the claimant warrants a referral to the National Operations Office. After allowing an appropriate period of time for the claimant to respond, the CE will evaluate any evidence that has been submitted. If the claimant has submitted pertinent evidence concerning the expansion of the covered period of AWE/Be designation, the CE will prepare a brief memo to file explaining the circumstances of the situation and requesting a review of the case by the National Office. The entire case file will then be transferred to the National Office.

Pertinent evidence from the claimant includes any documentation that substantiates that the dates of AWE/Be designation for a particular facility should be expanded. In particular, the evidence must establish a link between DOE atomic weapons production, the claimed facility and time frame(s). This could include newspaper articles, contractual agreement letters, contemporaneous memos from DOE, affidavits etc. If the claimant does not provide additional information or provides documentation that does not establish a covered period, the CE will proceed with a recommended denial of the claim on the grounds that covered employment has not been established. Exposure to residual radiation subsequent to a period of AWE designation is not sufficient to warrant a referral to the National Office.

(3) When the claim is received by National Office, a review of the new evidence will be conducted to determine if it warrants expansion of the covered dates of AWE designation. Any new evidence submitted by the claimant will be reviewed in conjunction with existing DOE documents to determine if it is sufficient to justify expanding the period of AWE designation beyond what has been established. Once the National Office has completed its evaluation, a memo will be prepared describing the findings. The memo will reference specific documentation that supports dates of AWE designation. In addition, relevant documents that were used in the National Office evaluation will be forwarded to the DO to be placed in the case file.

(4) The case file will then be returned to the District Office. Once the case has been returned to the District Office, the CE will proceed with issuing a recommended decision. The CE will reference the finding of NO within the content of the recommended decision, but will not attach a copy of the memo to the decision.

9. A designated AWE/Be is identified, but the dates of employment fall partially outside of the covered period of time (per the DOE web site).

a. If the claim is for beryllium sensitivity or chronic beryllium disease, the CE need only determine that the dates of employment fell during any portion of the covered period of time. A recommended decision is to be issued once the covered period is established.

b. If the claim is for SEC cancer, the claimant need only establish exposure under the requirements of the SEC (see PM2-600) with regard to the number of days of employment and the date of diagnosis. If such is established, the CE will proceed with a recommended decision.

c. If the claim is for a non-SEC cancer, the CE must determine all periods of covered employment and follow the procedures set forth above in 2-500.8.

10. DOE Facilities and Sub/Contractors of DOE facilities. A DOE facility is defined in the PM, Part 0-500-1(w). A contractor or subcontractor is also defined in Part 0-500-1(v). In determining whether an employee was employed at a covered facility, the CE must review these definitions carefully in his/her analysis.

a. The CE should review the DOE web site to assist in this determination. However, it is DOL’s responsibility to determine if a particular DOE facility, contractor or subcontractor is covered under the EEOICPA.

b. If the claimed facility is named on the web site as a covered facility for a particular period of time, the CE should compare the evidence of file, and any evidence received from the claimant, with the information on the web site. The evidence should be weighed carefully to determine whether the facility is a covered site based on the statutory definition.

c. If the claimant indicates that the employee was employed as a contractor or subcontractor of a DOE facility, the CE should review the information available from DOE on the web site. If the sub/contractor is not listed, the CE should request information from the claimant regarding whether the sub/contractor would be covered according to the statutory definition. If the claimant submits probative evidence, the CE should provide this evidence to DOE for consideration and response. Thereafter, the CE should render a determination regarding whether the employee worked at a covered site during a covered time period.