In a Freedom of Information Act (FOIA) request submitted on behalf of SSFL claimants by Alliance of Nuclear Worker Advocacy Groups (ANWAG), the National Institute of Occupational Safety & Health (NIOSH) acknowledged the problem of Area I, II and III workers who, though technically considered "non-nuclear personnel" by virtue of nothing more than their "time clock locations," were provided dosimeter badges to perform job duties in Area IV (the covered area), after clocking-in at time-clocks located outside of Area IV. According to NIOSH, Area I, II & III workers may be "falling through the cracks" of EEOICPA because all records associated with Area I-III time clock locations are typically disqualified without review. The reality is that regardless of where a worker clocked-in, he/she may have evidence of "covered" employment that proves EEOICPA eligibility. All too often, it's being overlooked.
When radiation exposures among Area I-III workers are overlooked, it is likely that not all dosimeter data will be provided to NIOSH for evaluation in Dose Reconstruction, significantly lessening the likelihood that a claimant will meet or surpass the required >50% probability needed to fulfill EEOICPA's "at least as likely as not" scenario. Since most SSFL personnel rotated between multiple job duties and areas of the facility, this problem may have influenced the outcome of an untold number of claims at SSFL, Canoga, DeSoto, Vanowen, and Downey Facilities. Additionally, there are strong indications that DOL Claims Examiners are not being provided with complete worker records and/or do not have the ability to decipher or correctly interpret those records that are provided, making it impossible to reliably determine worker location in many instances. If DOL cannot reliably determine any worker's exact location, cannot cross-reference dates of time-clock locations to ensure no covered employment is overlooked; and cannot reasonably guarantee that all radiation exposures are submitted to NIOSH for evaluation in dose reconstruction, significant questions are raised about the validity of current eligibility guidelines and Final Decisions, not to mention the premise of basing eligibility to EEOICPA on the ability to prove worker location in the first place.
In response to CORE Advocacy's inquiry about this issue, NIOSH and DOL agreed that any SSFL worker with radiation data collected during designated Area I-III employment would, for the purposes of administering EEOICPA, be considered an "Area IV worker" eligible for EEOICPA, for the duration of time reflected in the exposure data. However, to date, it appears DOL has made no formal announcement of this new understanding that would alert Claims Examiners of the need to carefully review all records, regardless of work location designation. The deeper implications facing all SSFL EEOICPA claimants who have been denied (past, present, and future) have yet to be addressed in such a way that would ensure covered employment is no longer overlooked. However, to the agency's credit, DOL is known to reevaluate or reopen claims when new, credible information that challenges a previous decision can be presented. As always, the burden of proof falls onto the claimant and claimant representatives. This issue clearly illustrates the need for advocates and expert Authorized Representatives who are well-versed in site history and are willing to work hard on behalf of EEOICPA claimants.However, part of the problem occurs when detailed records showing eligibility are provided at the claim's outset, and are overlooked or misinterpreted by DOL. Because the records have become "part of the claim file," discovery that they have been overlooked may not constitute "new evidence" when it comes to requesting the claim be reopened. Currently, valid records proving covered employment, which have languished in case-files for years without review, are being ignored and systematically rejected. If these records are discovered and contain proof of valid eligibility and exposure data, they should never be rejected; they should benefit the claimant and serve as a justification to reopen and reevaluate a previously denied claim.
This issue, combined with SSFL's documented site history, worker records & sworn testimony, and recent environmental findings of radioactive substances beyond Area IV boundaries contradict DOE's assertions of Area IV exclusivity. Since many building location codes that correspond to dosimeter badges worn by DOE-contracted workers remain "unknown," and since monitored workers have designated employment beyond Area IV boundaries, DOE's use of radioactive materials outside Area IV simply cannot be ruled out. A strong case is made to expand SSFL's DOE Area to include Areas I, II & III as "DOE Facilities," given DOE's well documented operations, proprietary interests, and personnel in these areas. Moreover, since a worker's location cannot be reliably determined by a designated work area, job title, or time-clock location - and since the completeness of Dose Reconstructions are now brought into question for an unknown number of EEOICPA claimants, the case for a site-wide Special Exposure Cohort (SEC) is also worth consideration.
TheAeroSpace.org / CORE Advocacy has extensively researched SSFL site history and problems facing Area I, II, III & IV workers for nearly a decade. While there are likely some claims that have been denied based on complete and accurate information congruent with current policy, there are likely many that have been wrongly denied due to inadequate review of worker records, resulting in overlooked covered employment and incomplete Dose Reconstructions. There is no reliable way to determine which claims deserve to be reopened without reviewing them.
There are many EEOICPA claimants that qualify under currently-established guidelines, but have been disqualified in error. Additionally, there is a direct need to expand eligibility guidelines in concert with the original contractual language between AEC-North American Aviation and DOE's decades of documented operations in and interests in Areas I, II and III, which qualify these areas as "DOE Facilities." TheAeroSpace.org supports compliance with federal legislation (EEOICPA) in the determination of a DOE Facility.
If you have questions or concerns about your EEOICPA claim or need Authorized Representation, contact TheAeroSpace.org or CORE Advocacy for Nuclear & Aerospace Workers.
The Energy Employee Occupational Illness Compensation Program Act of 2000 – EEOICPA
42 U.S.C. § 7384l(12):
“The term “Department of Energy facility” means any building, structure, or premise, including the grounds upon which such building, structure, or premise is located
(A) in which operations are, or have been, conducted by, or on behalf of, the Department of Energy (except for buildings, structures, premises, grounds, or operations covered by Executive Order No. 12344, dated February 1, 1982 (42 U.S.C. 7158 note), pertaining to the Naval Nuclear Propulsion Program); and
(B) with regard to which the Department of Energy has or had
i. a proprietary interest; or
ii. entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.
Since 2008, TheAeroSpace.org has worked toward the correction of Santa Susana Field Laboratory (SSFL) site history on behalf of Area I, II and III personnel, who are currently excluded from EEOICPA by virtue of designated tiime-clock location alone. Employees of North American Aviation Rocketdyne / Rockwell International meet the DOE Contractor requirement established by EEOICPA, and historical facility documents reveal that Areas I, II and III meet the statutory criteria used to determine a DOE Facility under the Act (42 U.S.C. § 7384l(12)).
Recently, CORE Advocacy for Nuclear & Aerospace Workers discovered inadequately-reviewed worker radiation exposure records among Area I, II, III & IV personnel, which prompted DOL and other agencies to acknowledge that some Area I, II & III personnel may be eligible for EEOICPA compensation and benefits. There may be cause to reopen previously denied claims, since inadequate review of records could result in overlooked covered employment, incomplete Dose Reconstructions, and even wrongful denials. Currently, there is no way to determine how many claims may have been wrongfully denied; they may all need review.