Docket Number: 20121127-84623-1

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 20121127-84623-1

DECISION DATE: April 30, 2013

 

NOTICE OF FINAL DECISION

FOLLOWING A HEARING

 

This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claim for benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim for liver cancer, a liver transplant, liver disease, diabetes and hypertension under Part E is hereby denied.

 

STATEMENT OF THE CASE

 

On April 30, 2010, the claimant filed a Form EE-1, claiming benefits under Part B of EEOICPA for liver cancer. In support of that claim, the claimant submitted an employment history stating that he worked at the Allied Chemical Corporation’s worksite in Metropolis, Illinois, beginning on February 16, 2004. The Metropolis worksite has been designated as an Atomic Weapons Employer (AWE) facility by the Department of Energy (DOE), for the covered period of 1959 through 1976, with a period of residual radioactive contamination of 1977 to March 1, 2011.[1] This claimed employment was accepted by the Division of Energy Employees Occupational Illness Compensation (DEEOIC) as factual through at least May 22, 2010, which is the date that the claimant’s employer verified he was still employed.

 

During the adjudication of the claimant’s Part B claim, which included a referral to the National Institute for Occupational Safety and Health (NIOSH) for a radiation dose reconstruction, his authorized representative submitted a facsimile on March 26, 2011 in which he contended that DEEOIC should either designate the Metropolis worksite as a DOE facility, or in the alternative, that it should find that the corporate successor to the Allied Chemical Corporation—Honeywell International—was a subcontractor to the DOE contractor at the Paducah Gaseous Diffusion Plant, and also award the claimant benefits under Part E of EEOICPA. The representative’s arguments were considered and rejected in an April 12, 2011 memorandum from DEEOIC’s Policy Branch, which concluded that there was no evidence in support of either contention, after which FAB issued an April 14, 2011 final decision denying the claimant’s Part B claim. FAB’s denial of the claimant’s Part B claim was based on NIOSH’s dose reconstruction, and the finding that it was not “at least as likely as not” (a 50% or greater threshold for compensability) that his liver cancer was due to the radiation doses he had received while working at the Allied Chemical Corporation’s Metropolis worksite. FAB did not, however, make any determination on the claimant’s eligibility under Part E of EEOICPA it its April 14, 2011 final decision.

 

By facsimile dated May 14, 2011, the representative requested reconsideration of FAB’s April 14, 2011 final decision and repeated his earlier arguments in support of his contention that the Metropolis worksite should be determined to meet the statutory definition of a DOE facility set out in § 7384l(12) of EEOICPA. However, FAB denied this request on June 21, 2011, on the ground that the April 14, 2011 final decision only addressed the claimant’s Part B claim, and therefore his authorized representative’s contentions regarding his eligibility under Part E were irrelevant to that determination.

 

By letter dated October 2, 2012, the Cleveland district office of DEEOIC acknowledged that the claimant’s authorized representative had made a claim for benefits under Part E of EEOICPA on his behalf during the adjudication of his Part B claim, and asked the claimant to submit another Form EE-1 so it could properly develop his Part E claim. As part of this letter, the district office reminded him of the following:

 

As you are also aware, the evidence submitted by your authorized representative in regard to changing the designation of the Allied Chemical facility to a DOE facility was submitted to [DEEOIC’s Policy Branch]. The policy branch evaluated the evidence presented and determined that the Allied Chemical Plant in Metropolis, IL does not meet the definition of a DOE facility and cannot be considered as such for administration of the EEOICPA.

 

The district office enclosed a copy of the Policy Branch’s April 12, 2011 determination with its October 2, 2012 letter, and informed the claimant that it was his burden of proof to establish that he had covered employment at a DOE facility in support of his claim for benefits under Part E of EEOICPA.

 

On October 19, 2012, the claimant filed the requested Form EE-1, in which he claimed benefits under Part E for liver cancer, a liver transplant, liver disease, diabetes and hypertension due to his verified employment at the Metropolis worksite. In a development letter dated October 24, 2012, the district office repeated the substance of its October 2, 2012 letter, and asked again that he submit evidence that could support designating the Metropolis worksite as a DOE facility.

 

No new evidence was received in response to the October 24, 2012 letters. Thus, on November 27, 2012, the Cleveland district office issued a recommended decision to deny the claimant’s Part E claim, on the ground that the evidence of record failed to establish that he had worked at a DOE facility. The claimant’s representative thereafter submitted a timely facsimile in which he objected to the November 27, 2012 recommended decision and requested an oral hearing, which was held in Paducah, Kentucky, on January 16, 2013.

 

OBJECTIONS

 

In his December 4, 2012 facsimile objecting to the recommendation to deny the claimant’s Part E claim, the representative made the following five arguments (which are each followed by a response):

 

1. DEEOIC has wrongly refused to recognize the presence of uranium “daughter” products associated with the processing work that occurred at the Allied Chemical Corporation’s Metropolis worksite. RESPONSE: This argument involves the amount of radiation to which the claimant was exposed, and this issue is within the exclusive jurisdiction of NIOSH, not DEEOIC, as noted in 20 C.F.R. § 30.2(b) (2013).
2. The Metropolis worksite is a DOE facility because “operations” on behalf of DOE and its predecessor agencies took place there. RESPONSE: While DEEOIC does not dispute that “operations” took place at the worksite, this fact alone is insufficient to support the requested determination that the Metropolis plant is a DOE facility, as that statutory term is defined in § 7384l(12) of EEOICPA.
3. DEEOIC determined that the Office of Scientific and Technical Information (OSTI) worksite in Oak Ridge, Tennessee, was a DOE facility when a Part E claim was filed by a worker at that location, and it should do the same in connection with the Allied Chemical Corporation’s Metropolis worksite. RESPONSE: The determination by DEEOIC that OSTI was a DOE facility was based, in part, on the fact that DOE and its predecessor agencies had a “proprietary interest” in that worksite under 42 U.S.C. § 7384l(12)(B)(i), and neither DOE nor any of its predecessor agencies has ever had such an interest in the Metropolis worksite, which has always been owned by the Allied Chemical Corporation and its corporate successors.
4. The Metropolis worksite was designated for remediation under the Formerly Utilized Sites Remedial Action Program (FUSRAP), and therefore workers employed there doing clean-up are covered under Part E. RESPONSE: This assertion is not correct, because the Metropolis worksite has not been designated for remediation under FUSRAP.[2]
5. Employees of a contractor that had allegedly concealed transuranics at the Metropolis worksite from the Nuclear Regulatory Commission were hired by DEEOIC to compile both Site Exposure Matrices (SEM) information for the Metropolis worksite, as well as for the site profile used by NIOSH to perform dose reconstructions for workers at that same worksite, and this created an impermissible conflict of interest. RESPONSE: DEEOIC did not hire the contractors that prepared the site profile used by NIOSH to perform dose reconstructions, NIOSH did. Also, there is no toxic substance exposure profile for the Metropolis worksite in SEM because it is an AWE facility (SEM only contains profiles of worksites that are either DOE facilities or uranium mines and mills covered under Part E). And more importantly, this argument is irrelevant to both the claimant’s Part E claim and his belief that the Allied Chemical Corporation’s Metropolis worksite satisfies the statutory definition of a DOE facility.

 

At the January 16, 2013 oral hearing, the claimant, his wife and a former worker at the Paducah Gaseous Diffusion Plant provided testimony in support of the claim. However, this testimony (most of which involved the United States Enrichment Corporation, which has both owned and operated the Paducah Gaseous Diffusion Plant[3] since July 28, 1998, rather than either DOE or the Allied Chemical Corporation) was entirely irrelevant to, and provided no support for, the argument that the Allied Chemical Corporation’s Metropolis worksite meets the definition of a DOE facility, because it failed to establish that DOE (or its predecessor agencies) either had a “proprietary interest” in the worksite, or had entered into one of the specific types of contracts that are listed in § 7384l(12)(B)(ii) with an entity at the worksite.

 

The representative also submitted a “hearing brief” on that date that repeated his prior arguments and included copies of: (1) Executive Order 13179; (2) 5 U.S.C. §§ 702 and 706; (3) a report of a June 22, 2006 public meeting that NIOSH held concerning the site profile for performing dose reconstructions for workers at the Metropolis worksite; (4) a partial copy (provenance unknown) of an agreement by which the Allied Chemical Corporation undertook to covert natural uranium concentrates owned by an unidentified entity into uranium hexafluoride[4]; (5) a partial manifest (provenance also unknown) purporting to list chemicals that the Allied Chemical Corporation stored at an unspecified location for DOE; (6) extracts from EEOICPA Fin. Dec. No. 10043931-2006 (Dep’t of Labor, March 10, 2008); (7) extracts from EEOICPA Circular No. 08-05 (issued May 2, 2008); (8) extracts from EEOICPA Bulletin No. 07-15 (issued May 9, 2007); (9) extracts of general information from the FUSRAP website; (10) extracts from a November 5, 2012 DOE memorandum on allegations of conflicts of interest among contractors performing remediation work for DOE at the Portsmouth Gaseous Diffusion Plant and at the Oak Ridge Reservation; and (11) extracts from multiple documents and databases posted on both DOE and DEEOIC websites relating to SEM, notices published in the Federal Register, § 7384 of EEOICPA and the regulations implementing EEOICPA. However, as was the case with his arguments discussed above, the copies submitted as part of the representative’s “hearing brief” are entirely irrelevant to the claimant’s Part E claim and fail to establish, or even suggest, that the Allied Chemical Corporation’s Metropolis worksite meets the statutory definition of a DOE facility.

 

Following the hearing, the claimant’s representative submitted a February 12, 2013 facsimile containing: (1) copies of items already in the case file; (2) a complaint alleging employment discrimination from the former Paducah employee who had testified at the January 13, 2013 oral hearing; (3) emails from that same former Paducah employee; (4) a January 30, 2013 interim response from DEEOIC to a Freedom of Information Act request filed by the representative; (5) additional extracts from the FUSRAP and DEEOIC websites; and (6) factual allegations made by another purported Part E claimant (not the claimant involved in this decision) regarding the work performed at the Allied Chemical Corporation’s Metropolis worksite. Once again, however, this evidence has been reviewed and fails to provide any support for the claimant’s assertion that the Metropolis worksite is a DOE facility.

 

And finally on March 4, 2013, the representative sent yet another facsimile; this one forwarded copies of three FAB decisions the representative believed supported the claimant’s Part E claim: (1) EEOICPA Fin Dec. No. 2158-2003 (Dep’t of Labor, July 11, 2008); (2) EEOICPA Fin. Dec. No. 25833-2004 (Dep’t of Labor, October 20, 2004); and (3) EEOICPA Fin. Dec. No. 55211-2004 (Dep’t of Labor, September 16, 2004). However, all of these FAB decisions are factually distinguishable from the Part E claim at issue in this final decision and fail to establish that the Allied Chemical Corporation’s Metropolis worksite is a DOE facility.

 

After carefully considering the entirety of the evidence now in the case file, FAB hereby makes the following:

 

FINDINGS OF FACT

 

1. The claimant filed a Form EE-1, claiming benefits for multiple alleged conditions under Part E of EEOICPA, on October 19, 2012.

 

2. The claimant has verified employment at the Allied Chemical Corporation’s Metropolis, Illinois, worksite from February 16, 2004 through at least May 22, 2010.

 

3. The Allied Chemical Corporation’s Metropolis worksite has been designated as an AWE facility for the covered period from 1959 through 1976 by DOE. In addition, NIOSH has also identified a period of residual radioactive contamination at the worksite from 1977 through March 1, 2011.

 

4. While the case file contains evidence establishing that “operations” by or on behalf of two of DOE’s predecessor agencies were conducted at the Allied Chemical Corporation’s Metropolis worksite, which processed uranium concentrates into uranium hexafluoride for the Atomic Energy Commission (AEC), and the Energy Research and Development Administration (ERDA) after the AEC was abolished, from 1959 through 1976, there is no evidence that these two predecessor agencies either had a “proprietary interest” in the Metropolis worksite, or had entered into one of the enumerated types of contracts listed in 42 U.S.C. § 7384l(12)(B)(ii) with an entity at the worksite.

 

Based on the above-noted findings of fact, FAB also hereby makes the following:

 

CONCLUSIONS OF LAW

 

The benefits available under Part E of EEOICPA are only payable to claimants who satisfy the eligibility requirements set out in the statute. In this Part E claim, the claimant alleges that he qualifies as a DOE contractor employee because he worked at the Allied Chemical Corporation’s Metropolis worksite, which he believes fits within the statutory definition of a DOE facility set out in § 7384l(12). However, FAB concludes otherwise, and accordingly the claimant is not entitled to Part E benefits, as alleged.

 

As noted above, DEEOIC does not dispute that “operations” occurred at the Metropolis worksite, because there is ample evidence showing that the Allied Chemical Corporation processed natural uranium concentrates into uranium hexafluoride for the AEC at that location, first pursuant to a processing contract with the AEC that ran from 1959 through June 30, 1964[5], and thereafter for both the AEC and ERDA on an “as needed” basis through 1976.[6] Therefore, this final decision need not address the bulk of the arguments put forward by the claimant’s representative, because they were made to prove this already accepted requirement of § 7384l(12)(A) of EEOICPA.[7]

 

However, it is not enough to merely establish that “operations” occurred at a worksite. Before DEEOIC can determine that the Allied Chemical Corporation’s Metropolis worksite meets the statutory definition of a DOE facility, the claimant must also prove either that DOE or one of its predecessor agencies had a “proprietary interest” in the Metropolis worksite as required by § 7384l(12)(B)(i), or that DOE or one of its predecessor agencies “entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services” as required by § 7384l(12)(B)(ii). Pursuant to 20 C.F.R. § 30.111(a), the claimant has the burden of proving at least one of these two statutory requirements “by a preponderance of the evidence.” That same section also notes that “Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved it true.” However, and as discussed above, FAB concludes none of the submissions from the claimant’s representative contained any persuasive arguments or factual evidence in support of either of these statutory requirements.

 

Thus, FAB concludes that the claimant has failed to prove that the Allied Chemical Corporation worksite in Metropolis, Illinois meets the statutory definition of a DOE facility, and that he has also failed to prove that he is a DOE contractor employee who worked at a DOE facility under Part E of EEOICPA. Accordingly, FAB hereby denies his Part E claim.

 

Jacksonville, FL

 

Wendell Perez

Hearing Representative

Final Adjudication Branch