Docket Number: 23005-2002

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 23005-2002

DECISION DATE: July 31, 2007

NOTICE OF FINAL DECISION FOLLOWING

REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim for benefits under Part B for chronic beryllium disease (CBD) is accepted. A copy of this decision is being sent to the authorized representative.

STATEMENT OF THE CASE

On February 19, 2002, the employee filed a Form EE-1 claiming benefits for CBD under Part B of EEOICPA with the Denver district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC). In an accompanying employment history, the employee indicated that he had worked for the Coors Porcelain Company (a beryllium vendor that is now known as CoorsTek, Inc.) in Golden, Colorado from June of 1983 through 1995, and alleged that he had been exposed to residual beryllium oxide contamination during the period that he worked in Building 16. The employee also submitted a number of medical reports in which he was diagnosed with CBD, including a February 6, 1990 report that related the employee’s history of working as a punch press operator in Building 16 for the first six months of his employment (June through December of 1983), and that his regular daily duties included sweeping up throughout all of Building 16.

By letter dated March 1, 2002, the Denver district office informed the employee that the entire period of his alleged employment with the Coors Porcelain Company took place after that beryllium vendor had ceased processing or producing beryllium for the Atomic Energy Commission (AEC) in 1975, and asked him to submit any evidence he had that might enable it to conclude that the beryllium vendor had continued to process or produce beryllium for the AEC (or any of its successor agencies) after 1975. In a March 21, 2002 response, the employee’s representative disagreed with the suggestion in the district office’s letter that the scope of coverage for beryllium vendor employees was limited to the period during which the vendor was producing or processing beryllium for sale to, or use by, the Department of Energy (DOE) or its predecessor agencies, and argued that the employee should be considered a “covered beryllium employee” under § 7384l(7)(C) of EEOICPA because he was apparently exposed to beryllium in Building 16 while he was cleaning up residual beryllium contamination from its AEC work. In support of this argument, the representative submitted additional medical evidence and a number of documents from the employee’s prior litigation in the District Court for Jefferson County, Colorado, Civil Action No. 96-CV-2532 (Division 5), against both the Coors Porcelain Company and Brush Wellman, Inc.: (1) a deposition exhibit identifying the time periods between 1960 and 1985 during which different work projects and/or departments of the Coors Porcelain Company had been located in Building 16; (2) excerpts from a deposition transcript in which another employee of the Coors Porcelain Company described working in Building 16; (3) Coors Porcelain Company documents concerning beryllium work that was done in Building 16 and the potential for exposure to residual beryllium, as well as both internal and external communications regarding the remediation and demolition of Building 16 by Morrison-Knudson Engineers, Inc. during 1985; and (4) a May 28, 1985 report of a sampling study of beryllium residues in Building 16 performed by Morrison-Knudson Engineers, Inc.

On May 3, 2002, the Denver district office acknowledged receipt of the representative’s March 21, 2002 response and repeated its earlier request that he submit any evidence in his possession demonstrating that the beryllium vendor in question had continued to process or produce beryllium for the AEC (or DOE) beyond 1975. In a June 17, 2002 reply, an associate of the employee’s representative noted that the scope of coverage under EEOICPA extended to “a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the Department of Energy.” (emphasis in original) On June 28, 2002, the Denver district office received additional factual evidence from the employee’s representative, including a number of complaints that had been filed in the employee’s state court litigation[1], an undated order that dismissed the Coors Porcelain Company from that suit, and a June 20, 2002 order that subsequently dismissed the suit against the remaining defendant, Brush Wellman, Inc.

On September 12, 2002, the Denver district office issued a recommended decision to deny the employee’s claim on the ground that he was not a “covered beryllium employee” because he was employed at the Coors Porcelain Company after 1975, and therefore he was not employed 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 Department of Energy” or any of its predecessor agencies.

Neither the employee nor his representative filed any objections to the September 12, 2002 recommended decision, and on February 20, 2003 the FAB issued a final decision denying the claim. In that decision, the FAB noted that the employee had not filed any objections to the recommended decision as permitted under 20 C.F.R. § 30.310 and affirmed the Denver district office’s finding that the employee was not a “covered beryllium employee” pursuant to 42 U.S.C. § 7384l(7)(C) because he was not employed by a beryllium vendor at a beryllium vendor facility 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 Department of Energy.”

On March 27, 2003, the employee’s representative filed a request for reconsideration of the FAB’s February 20, 2003 final decision. In support of his request, the representative argued that while the employee did not work at a beryllium vendor facility “during a period of time in which ongoing production and processing of beryllium occurred,” he did “work at such a facility (Coors Porcelain) while there was ongoing remediation of residual beryllium contamination resulting from processing of beryllium for the DOE.” Therefore, argued the representative, the employee should “be considered a ‘covered beryllium employee’ pursuant to 42 U.S.C. § 7384l(7)(C).” On May 20, 2003, the FAB issued an order denying the request for reconsideration of its February 20, 2003 final decision on the ground that “no evidence of a contractual relationship during the claimed period of employment was submitted.”

On February 15, 2005, the employee filed a petition in the United States District Court for the District of Columbia, seeking review of the FAB’s final decision on his Part B claim (Civil Action No. 1:05-CV-325). Shortly thereafter, on April 8, 2005, the Director of DEEOIC issued an order that vacated the FAB’s February 20, 2003 final decision and reopened the employee’s claim for both further development and the issuance of new recommended and final decisions. That order specifically directed the Denver district office to consider whether the employee was a “covered beryllium employee,” as that term is defined in EEOICPA, because he had worked at the Coors Porcelain Company during a period of environmental remediation. Shortly after the Director issued his order, the employee voluntarily dismissed his petition.

In an August 5, 2005 response to a request for information from the Denver district office, CoorsTek, Inc. submitted a number of documents that it had obtained from DOE through a Freedom of Information Act request. These documents related to the environmental remediation of Building 16, as well as the beryllium work that the Coors Porcelain Company performed for the AEC. They established that the former site of Building 16 was now the location of a parking lot, and generally described the history of nuclear and beryllium work that was carried out in Building 16 from its construction in 1960 through its remediation and demolition by Morrison-Knudson Engineers, Inc. in 1985.

On September 28, 2005, the Denver district office issued a new recommended decision denying the employee’s Part B claim on the ground that he was not a “covered beryllium employee” under EEOICPA. The recommended decision found that the employee was not employed by a beryllium vendor at a beryllium vendor facility during a time when the facility was engaged in activities related to production or processing of beryllium for sale to, or use by, DOE, “including [under the Secretary’s regulations] periods during which environmental remediation of a vendor’s facility was undertaken pursuant to a contract between the vendor and DOE.”

On November 21, 2005, the employee’s representative filed objections to the September 28, 2005 recommended decision with the FAB and argued that the employee’s work at the beryllium vendor’s facility during a period of environmental remediation was related to the production or processing of beryllium for sale to, or use by, DOE. On April 18, 2006, the FAB issued another final decision in which it denied the employee’s claim on the ground that, pursuant to 20 C.F.R. § 30.205(a)(2)(iii) (2005)[2], only environmental remediation of a beryllium vendor’s facility that is undertaken pursuant to a contract between that vendor and DOE is considered to be an activity “related to the production or processing of beryllium” for the purpose of meeting the definition of “covered beryllium employee.”

On May 23, 2006, the employee filed a second petition in the United States District Court for the District of Columbia seeking review of the FAB’s latest final decision on his Part B claim (Civil Action No. 1:06-CV-958). In a “Memorandum Order” dated March 14, 2007[3], District Judge Robertson ruled that 20 C.F.R. § 30.205(a)(2)(iii) did not describe the only beryllium vendor activities that were related to production or processing and found that the administrative record in the employee’s EEOICPA claim would require further development before he could determine whether the employee was a “covered beryllium employee.” Thereafter, on April 20, 2007 the parties filed a “Joint Motion for Remand Order” that proposed a method for undertaking the further development of the claim that was described in the March 14, 2007 Memorandum Order, and on April 26, 2007, the judge signed the “Order for Remand” that had been prepared by the parties. Pursuant to that Order, the judge retained jurisdiction over the employee’s claim while it was undergoing further development.

On remand, the Director of DEEOIC served a May 18, 2007 administrative subpoena on CoorsTek, Inc. by certified mail, which was received by CoorsTek, Inc. on May 22, 2007. The subpoena directed CoorsTek, Inc. to provide DEEOIC with copies of records in its possession relating to the processing or producing of beryllium at its Golden, Colorado facility from 1960 through 1995, whether for the AEC/DOE or other entities, and to the contract or agreement entered into between the Coors Porcelain Company and Morrison-Knudson Engineers, Inc. for the remediation and demolition of Building 16. In a submission that was received by DEEOIC on June 22, 2007, CoorsTek, Inc. submitted a CD containing 315 electronic files of scanned documents totaling 1,807 pages, consisting of the following, in pertinent part:

• A memorandum of a May 3, 1960 meeting between officials of the Lawrence Radiation Laboratory (now known as the Lawrence Livermore National Laboratory) and the Coors Porcelain Company held during negotiations that led to the execution of Subcontract No. 165, during which officials of the Coors Porcelain Company stated they would construct, at their expense, the separate building that would be needed to perform the contemplated production work.

• Subcontract No. 165 to Contract W-7405-eng-48, between the Regents of the University of California (the DOE contractor for the Lawrence Radiation Laboratory) and the Coors Porcelain Company, which was executed on September 9, 1960. This subcontract called for the Coors Porcelain Company to fabricate the fuel elements needed by the Lawrence Radiation Laboratory for its “Pluto Project,” an effort to develop a nuclear ramjet engine. Appendix A noted that the Coors Porcelain Company would build a facility to perform the work under the contract, and that the University would furnish government-owned BeO to produce the fuel elements; Appendix B stated that title in the land and building remained in the Coors Porcelain Company.

• A letter from the Lawrence Radiation Laboratory to the Coors Porcelain Company, dated September 27, 1960, memorializing the understandings of the parties to Subcontract No. 165, which included the understanding that the Coors Porcelain Company would need about 20,000 kilograms of BeO.

• Subcontract No. 256 to Contract W-7405-eng-48, between the Regents of the University of California and the Coors Porcelain Company, which was executed on September 25, 1963. This subcontract was an extension of Subcontract No. 165 and provided for the shut-down of the Fuel Element Project at the Coors Porcelain Company on or before June 30, 1964. Appendix B noted that one purpose of Subcontract No.256 was to maintain the capability of the Coors Porcelain Company to perform research and development work on beryllium tubes using government-owned BeO.

• The Coors Porcelain Company’s “Final Progress Report for Research and Development Program” under the Pluto Project covering the period October 1, 1963 through June 30, 1964. Among other things, this report described the arrival of government-owned BeO at the Coors Porcelain Company from Brush Wellman, Inc. in powder form.

• An August 7, 1986 Rocky Flats Plant Report entitled “Pluto Program Overview, Fuel Element Fabrication for Tory II-C Reactor,” tracing the history of the Coors Porcelain Company entering into Subcontract No. 165 on September 9, 1960 to fabricate 756,000 fuel elements (4.5-inch long hexagonal tubes) for this AEC program, and an extension known as Subcontract No. 256. The report included Table III (Materials Balances) on page 5 showing how 18,681.5 kilograms of beryllium were used in this project to actually fabricate approximately 500,000 beryllium and beryllium-uranium fuel elements.

• An April 5, 1965 letter from the Argonne National Laboratory to the Coors Porcelain Company that requested a quote for the fabrication of six nuclear fuel specimens.

• Portions of a February 21, 2000 deposition of [Employee’s co-worker] from the employee’s state court litigation, which established that the “Fuel Element Building” was later known as “Building 16.”

• A “Further Study of Beryllium Controls, Coors Porcelain Company,” dated November 6, 1969, in which an industrial hygienist noted the imminent move of the Coors Porcelain Company’s BeO Department into Building 16 from another location within the facility.

• An internal Coors Porcelain Company research project report entitled “BeO Tape Status,” dated January 1970, which memorialized recent research efforts into solving production problems involving this product during the period February 2, 1969 through January 30, 1970, recommended that future raw material (BeO) be obtained from Kawecki-Berylco, Inc. rather than Brush Wellman, Inc., and noted that “four small orders have been shipped to date” to non-AEC entities as part of a pilot project designed to develop a profitable industrial process.

• An internal Coors Porcelain Company research project report entitled “BeO Extrusion Status,” also dated January 1970, which memorialized recent research efforts into solving production problems involving this product during the period February 2, 1969 through January 30, 1970, and noted that “[t]he extrusion is done in the Erie Press in Building 16.”

• An internal Coors Porcelain Company research project report entitled “KBI BeO Conversion,” dated February 1970, which listed many reasons why the Coors Porcelain Company should obtain raw material (BeO) from Kawecki-Berylco, Inc., instead of from Brush Wellman, Inc.

• Minutes of the Toxic Material Board Meeting at the Coors Porcelain Company, dated July 28, 1970, which noted that the BeO Department had moved into Building 16.

• An internal Coors Porcelain Company memorandum, dated May 29, 1985, which noted that BeO was used in Building 16 from 1970 to 1975 in non-AEC ceramics work, and stated that employees would be evacuated from the building before clean-up work began.

• An August 19, 1985 letter from Morrison-Knudson Engineers, Inc. to the Coors Porcelain Company, which referred to “deactivation” of Building 16 pursuant to Contract No. 5083 between the two parties.

• A report entitled “Production of Beryllia Ceramics and the 1989-90 Beryllium Disease Surveillance Project at Coors Ceramics Company,” dated July 5, 1991, which contained a detailed history of BeO use in production activities from 1958 through 1975 by the BeO Department and for the Fuel Cell Project, and beryllium substrates after 1975. It confirmed that Building 16 was built for the AEC work on the Fuel Element Project, and then used by the Beryllium Ceramics Department from 1970 through the end of 1975.

On July 12, 2007, the national office of DEEOIC issued a recommended decision to accept the employee’s Part B claim for benefits, finding that the evidence of record established that he was a “covered beryllium employee” since he was employed at a beryllium vendor during a period when that vendor was engaged in “activities related to” the production or processing of beryllium for sale to, or use by, DOE or its predecessor agencies, i.e., remediation during calendar year 1985. The case was transferred to the FAB and on July 30, 2007, it received the employee’s signed, written waiver of all objections to the July 12, 2007 recommended decision. The employee also submitted a signed statement indicating that he had not received any money from a tort action for his beryllium exposure, and that he had not been convicted of fraud in connection with any application for or receipt of EEOICPA benefits or any other state or federal workers’ compensation benefits.

After considering the recommended decision and all the evidence in the case file, the FAB hereby makes the following:

FINDINGS OF FACT

1. The employee filed a claim for benefits under Part B of EEOICPA on February 19, 2002.

2. The employee was employed as a punch press operator by a beryllium vendor, the Coors Porcelain Company (or its corporate successors), from June of 1983 through 1995. The employee worked in Building 16 for approximately six months between June and December of 1983, after which time he worked in other buildings at the beryllium vendor’s facility through 1995.

3. The beryllium vendor had processed or produced beryllium for DOE and its predecessor agencies in Building 16 from 1947 through 1975.

4. The National Institute for Occupational Safety and Health has determined that there is “potential for significant residual contamination outside of the period in which weapons-related production occurred” at the beryllium vendor’s facility in its revised June 2004 Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities, at Appendix B-2, page 4.

5. Management of the beryllium vendor made a conscious determination to address this residual beryllium contamination by hiring Morrison-Knudson Engineers, Inc., pursuant to Contract No. 5083, to remediate and demolish Building 16 in early 1985.

6. The remediation work at the facility required removal or other remediation of residual beryllium contamination that consisted of more than a de minimus amount of beryllium dust, particles or vapors attributable to work that the beryllium vendor had done for the AEC/DOE.

7. The employee worked for the beryllium vendor during a period when it was engaged in activity pursuant to a conscious determination to remediate more than a de minimus amount of residual beryllium contamination that was attributable to work the vendor had done for the AEC/DOE.

8. Building 16 was remediated and demolished by the end of 1985 by Morrison-Knudson Engineers, Inc.

9. The employee was diagnosed with CBD on May 8, 1990.

10. The employee filed a tort action in 1996 against the beryllium vendor and a second defendant that contained an allegation that he had experienced work-related exposure to beryllium. This tort action was dismissed with respect to all defendants no later than June 20, 2002.

Based on the above-noted findings of fact in this claim, the FAB hereby makes the following:

CONCLUSIONS OF LAW

The first issue in this claim is whether the employee is a “covered beryllium employee” for the purpose of EEOICPA. For the purpose of this claim, a “covered beryllium employee” is defined as:

A current of 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 Department of Energy.

42 U.S.C. § 7384l(7)(C). There is no dispute that the beryllium vendor in question ceased all “production or processing of beryllium for sale to, or use by, the” AEC no later than 1975, eight years before the employee began working for the vendor at its Golden, Colorado facility in June of 1983. Accordingly, the compensability of the employee’s claim turns on whether the beryllium vendor was “engaged in activities related to” that production or processing at any time during the period of his employment from June of 1983 through 1995.

The scope of what Congress intended by the phrase “activities related to” is broad and not otherwise defined in either EEOICPA or its legislative history. Therefore, the definition of the phrase is properly left to DEEOIC as the agency charged with the administration of the compensation program established as Part B of EEOICPA. See 20 C.F.R. § 30.2(a). As an exercise of that authority, § 30.205(a)(2)(iii) of the regulations implementing EEOICPA provides some guidance regarding the scope of the phrase “activities related to” by indicating that it includes “periods during which environmental remediation of a vendor’s facility was undertaken pursuant to a contract between the vendor and DOE. . . .” However, as noted by District Judge Robertson in his March 14, 2007 Memorandum Order, § 30.205(a)(2)(iii) only describes one type of activity “related to” a beryllium vendor’s production or processing of beryllium for sale to, or use by, DOE for the purpose of defining what a “covered beryllium employee” is under EEOICPA.

Accordingly, DEEOIC will consider whether additional activities of beryllium vendors are “activities related to” production or processing beryllium as claims present additional factual scenarios for its evaluation. In light of the findings of fact for the employee’s claim set out above, DEEOIC concludes that the Coors Porcelain Company “was engaged in activities related to the production or processing of beryllium for sale to, or use by, the Department of Energy” or its predecessor agencies in 1985 when its management took conscious action to remediate the more than de minimus residual beryllium contamination in Building 16 that was attributable to work it had done for the AEC. This is another type of activity “related to” the production or processing of beryllium for sale to, or use by, DOE in addition to the activity described in § 30.205(a)(2)(iii); there will likely be others presented in future claims yet to be adjudicated.

In light of the above conclusion of law, and because the employee was exposed to beryllium in the “performance of duty” under 42 U.S.C. § 7384n(a)(2) since he was present at the beryllium vendor’s facility due to his employment by that beryllium vendor during a period when beryllium dust, particles, or vapor may have been present at such facility, DEEOIC also concludes that the employee qualifies as a “covered beryllium employee” under Part B, as that term is defined by 42 U.S.C. § 7384l(7)(C), because he was employed by 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 Department of Energy” or its predecessor agencies.

Because the employee qualifies as a “covered beryllium employee” under Part B, he is therefore also a “covered employee,” as that term is defined by 42 U.S.C. § 7384l(1)(A), and has been diagnosed with a “covered beryllium illness,” as that term is defined by 42 U.S.C. § 7384l(8)(B).

The second issue in this claim is whether the employee has complied with the dismissal requirements of 20 C.F.R. § 30.616(b) in connection with his tort suit against the beryllium vendor. As set out in the above findings of fact, the employee was one of a group of plaintiffs that filed a tort action against the beryllium vendor and another defendant in 1996, alleging (among other things) that he was exposed to beryllium while working for the beryllium vendor. Thus, this tort action fell squarely within the definition contained in 20 C.F.R. § 30.615(a), and was subject to the dismissal requirements set out in § 30.616(b) since it was filed before October 30, 2000 and was still pending on December 28, 2001. However, the evidence in the case file establishes that the employee timely elected to receive benefits due to his exposure to beryllium under EEOICPA by dismissing his suit against the beryllium vendor within the time period set out in 20 C.F.R. § 30.616(b), which mandates that all such tort actions must be dismissed prior to December 31, 2003.

Accordingly, the employee is entitled to compensation for CBD under Part B, as outlined in 42 U.S.C. §§ 7384s(a)(1) and 7384s(b), and the FAB hereby awards him lump-sum benefits of $150,000 and medical benefits for that occupational illness under Part B, retroactive to the date he filed his claim on February 19, 2002.

Washington, DC

Alan Kelly

Hearing Representative

Final Adjudication Branch