***************************************************************** 08/14/02 **** RADIATION BULLETIN(RADBULL) **** VOL 10.207 ***************************************************************** RADBULL IS PRODUCED BY THE ABALONE ALLIANCE CLEARINGHOUSE ***************************************************************** NUCLEAR POLICY 1 UK: Nuclear power is at the core - if you want to know what's watt 2 Koreas Reach Agreement on Reunions 3 US tells North Korea to abide by nuclear pact 4 Russia to construct floating nuclear reactor 5 Nuclear newbuild at risk 6 US: Storing uranium for national security 7 North Korea rejects U.S. call for nuclear inspection NUCLEAR REACTORS 8 Shares slump as Torness shuts its reactors 9 Torness setback intensifies chain reaction 10 US: NRC says 11 rules broken at Davis-Besse plant 11 US: Rules broken at Davis-Besse 12 Russia continuing work on plans to build a floating nuclear NUCLEAR SAFETY 13 Israel confirms will distribute anti-nuclear fallout pills 14 Gas mask kits to include iodine pills against radiation 15 US: Dirty Bomb Suspect Said 'Small Fish' 16 US: Third fatality reported in Fallon cluster 17 US: Utah: A missing radioactive gauge was found Tuesday NUCLEAR FUEL CYCLE 18 Uranium Plant Opponents Pack Unicoi Board Meeting * 19 US: Nevada sticks to Yucca attack 20 US: Yucca: Nuclear shipments dismay legislators 21 US: NUKE' TRUCK HITS BRIDGE IN W'CHESTER 22 US: Lawsuit against DOE over solid wastes will continue, judge says 23 Uranium Plant has Community Divided - WJHL 24 Unicoi: Citizens fill hall; zoning decision delayed * NUCLEAR WEAPONS 25 NUCLEAR TEST VETERANS IN LONG FIGHT FOR JUSTICE 26 AU: Maralinga clean-up 'the best' 27 US: Defense official: Nuke tests at NTS are likely 28 Australia defends clean-up at nuclear test site* US DEPT. OF ENERGY 29 Guidelines for Physician Panel Determinations on Worker 30 Hanford: DOE submits cleanup plan 31 Idaho National Lab to be Nuclear R Center 32 Faster Cleanup of Savannah Nuclear Site Funded OTHER NUCLEAR ***************************************************************** ***************************************************************** FULL NEWS STORIES ***************************************************************** ***************************************************************** 1 UK: Nuclear power is at the core - if you want to know what's watt money.telegraph.co.uk *Edited by Neil Collins, City Editor* /(Filed: 14/08/2002)/ # *British Energy hit by market meltdown* Goodness, what a fuss. British Energy says it will generate 63 TWh of electricity this year, compared with its earlier forecast of 67.5. Even though the shortfall is 10 times the capacity of Britain's wind turbines, it hardly sounds like enough to trigger the chain reaction in the shares yesterday. Typical stock market hysteria, you might say. Then you might remember that British Energy is the company that dare not speak its name, because it's Britain's biggest generator of nuclear power. The history of this industry is not a happy one. Blighted by cover-ups, it's a story of strong cash flow from operations which, every now and then, is completely blown away by write-offs or provisions. It is, in short, an industry where the financial and operating risks are too difficult for the market to price. So despite being in the relatively steady industry of electricity generation, British Energy shares have swung wildly; sold off by the Tories in 1996 at 100p, they rose to 749p in 1999, before melting all the way down to an ignominious 63p last night. The latest news, the closure of the Torness nuclear plant, effectively kyboshes the dividend. The more difficult question is whether it sinks the company too, and what happens if it does. These are difficult days for electricity generators. The new market, imposed on them by the regulator after years when the price looked to outsiders as if it was rigged, has caused a dramatic fall in the wholesale cost of juice, to the point where operators claim it's not worth trying to replace ageing plant. British Energy can do little about the problem, except to try to keep its plants running, which is why even a small drop in output can be so painful, despite some insurance against the shortfall. Torness, which is now 14 years old (barely middle-aged by the standards of British nuclear plant) had to shut down in January after government inspectors found a safety fault, while Dungeness in Kent, a similar design, is also currently current-less. There is no realistic alternative to nuclear power, however much the fans may huff and puff about wind power, and with time running out to meet the rash promises made at Kyoto, the Government can ill-afford further shutdowns of plant that generates no CO2 . It all looks a bit of a mess, which is why the market reacted the way it did yesterday. Nuclear power is at the core - if you want to know what's watt <#1> | Sorrell summoned by Bell's <#2> | Jolly proud with a frown on the face <#3> <#top> Sorrell summoned by Bell's It's August, the sun is shining (occasionally) and it's the time of year that Sir Martin Sorrell, chairman of WPP, likes to act like a naughty schoolboy by ringing the bells of his neighbours and then running off. Having tormented them, he sometimes comes back later and buys them out. Last year it was Chris Ingram at Tempus, this year it is Lord Bell of Chime communications, once Lady Thatcher's PR guru, having his patience tested. Bell and Sorrell have been friends for decades. Now their friendship is to be cemented further by a deal which should see 49pc of Bell's advertising agency, HHCL, injected into WPP's Red Cell in return for a stake in the combined business. It looks straightforward enough, but some wonder if Sorrell - who already owns 20pc of Chime - might go for the rest, and Chime's shares have been sounding a distinctly clearer note this week. An immediate offer is highly unlikely, but Sorrell has become a veritable campanologist, sitting on the doorstep (with two directors on the board). When he isn't ringing Bell's bell, he is peering through the letterbox, listening to the funny clanking noises coming from inside. Bell's talks with City PR firm College Hill are off, and where is Rupert Howell, the joint chief executive, who came over with HHCL when Chime bought it five years ago? He is moving house and taking a holiday, which betrays either supreme confidence or something else. Some say Sorrell would rather WPP's Lee Daley ran the new network, with the UK tunes being played by Simon Burridge of Chime. Bell would not welcome a bid from WPP. He and his senior managers might walk out, although that's what they said at Tempus before their lock-ins were negotiated. Do we care? Well, not that much, truth to tell, but they are two big egos, and it is August, after all. Nuclear power is at the core - if you want to know what's watt <#1> | Sorrell summoned by Bell's <#2> | Jolly proud with a frown on the face <#3> <#top> Jolly proud with a frown on the face # *Anite under fire for pay packages* The shareholders in Anite Group, a small software business, should feel jolly proud of their directors; in a tough year, they managed to push up profits by more than 40pc, so they will hardly begrudge chief executive John Hawkins the bonus that doubled his pay to £1.05m. That's the official version anyway, but it would be surprising if many shareholders agree, and Mr Hawkins deserves a rough ride at the annual meeting on September 4. Delve further into the figures, and profits are down. After tax, there's no profit at all, merely a nasty loss, and the shares have plunged from 180p in January to 28p last night. You could almost be talking about different companies; there's the one which is justifying those fat bonuses, and the one the shareholders own. They do not seem to have much in common. The connection, up to a point, is the profit warning buried in an upbeat results statement last month. The bonuses were apparently based on declared pre-tax profits on continuing operations before goodwill amortisation (and there's a great deal of it to amortise) which only goes to show that if you link bonuses to targets, the executives will try and hit them, whether they are in shareholders' interests or not. # Email: neil.collins@telegraph.co.uk ***************************************************************** 2 Koreas Reach Agreement on Reunions Today: August 14, 2002 at 3:55:25 PDT By CHRISTOPHER TORCHIA ASSOCIATED PRESS SEOUL, South Korea- South and North Korea agreed Wednesday to hold family reunions and resume contacts on a range of issues, signaling the resumption of their reconciliation process after months of tension. A South Korean government spokesman said the progress would improve prospects for dialogue between North Korea and the United States, the South's main ally. The communist North has said it will accept a U.S. envoy, although it threatened Tuesday to pull out of a 1994 nuclear accord with Washington. Southern negotiators failed to achieve one of their most coveted goals: a date for military talks that would allow work to resume on a cross-border railway that was severed shortly before the 1950-53 Korean War. After a seven-hour delay that South Korean media said was caused by wrangling over that issue, South Korea released a joint statement in which it said both sides agreed to hold military talks "at an early date." However, South Korean officials acknowledged that North Korea's version of the statement says they "recommended" that military talks be held. Analysts speculated that the wording indicated that the North Korean government delegates did not have the power to decide on military issues. The 10-point statement listed dates for a range of official contacts over the next two months, including another round of Cabinet-level talks on Oct. 19-22 in Pyongyang. Many of the plans had been made before relations deteriorated last year, and there were few new initiatives. "We think the agreement on various talks will put South-North Korean relations back on track and help deepen cooperation and reconciliation," said Rhee Bong-jo, a South Korean government spokesman. "The progress in the talks is expected to positively affect a resumption of dialogue between North Korea and the United States," he said. Also Wednesday, Japan's foreign ministry said it would hold high-level talks on normalizing diplomatic relations with North Korea on Aug. 25-26 in Pyongyang. The two countries have not had diplomatic relations since North Korea's founding in 1948. Officials of North Korea and the United States have both said they are also ready for talks, although no date has been set. Citing delays, North Korea has often threatened to withdraw from a 1994 deal under which it froze its suspected nuclear weapons program in exchange for the U.S.-led construction of two nuclear reactors. The schedule for inter-Korean contacts includes: -Economic talks Aug. 26-29 in Seoul to discuss the railroad project, construction of an industrial park just north of the Demilitarized Zone and flood prevention measures along their border. -Red Cross negotiations on Sept. 4-6 to discuss the establishment of a permanent meeting place for families separated by the 1950-53 Korean War. A round of reunions - the fifth since a historic summit of the leaders of the two Koreas in 2000 - will be held around Sept. 21, the statement said. -Talks on Sept. 10-12 to discuss the promotion of tours to the Diamond Mountain resort on North Korea's east coast. The tours, a major source of hard currency for the impoverished North, leave by ship from South Korea, which hopes the joint project will improve ties between the two countries. The two sides also agreed to cooperate on sports exchanges, including plans for an inter-Korean soccer match in Seoul on Sept. 7, and participation by North Korean athletes in the Asian Games in the South Korean city of Busan on Sept. 29-Oct. 14. North Korea had previously shunned international sports events in the South. A spokesman for South Korea's main opposition party, the Grand National Party, said the success of the agreements would be determined by whether they are implemented. He also said North Korea should have apologized for a naval clash on June 29 that killed five South Korean sailors. "It is disappointing that the agreement has no mention of North Korea's apology for the western sea clash or promise that such incident would not occur again," said the spokesman, Nam Kyong-pil. "That was what many people wanted to see." Several miles from the hotel in Seoul where the Cabinet-level talks were held, about 500 Korean War veterans and supporters who opposed the negotiations burned a North Korean flag and a portrait of North Korean leader Kim Jong Il. The protesters say South Korean President Kim Dae-jung's "sunshine" policy of engaging North Korea has been too conciliatory, and has reaped too few rewards. "No sunshine policy," they shouted outside the headquarters of the Grand National Party. Kim Myung Chul, a North Korean professor who defected to the South in the early 1990s, said the North has no choice but to negotiate because it needs aid from the South. "It has to be more flexible than before to save its faltering economy," he said. The Korean peninsula was divided at the end of World War II. All contents copyright 2002 Las Vegas SUN, Inc. ***************************************************************** 3 US tells North Korea to abide by nuclear pact Wednesday August 14, 9:50 AM The United States has told North Korea it must abide by a landmark deal which froze its nuclear program, after Pyongyang rejected Washington's demand for inspections of its facilities. Pyongyang's foreign ministry earlier said that the 1994 pact, known as the Agreed Framework, which provides North Korea with a nuclear power plant in return for a halt in its weapons programs, "stands at the crossroads of abrogation or preservation." But State Department deputy spokesman Philip Reeker warned Tuesday "we expect (North Korea) to abide by the fact and the spirit of the agreement." "We have stated many times that the United States will continue to abide by the terms of the accord as long as North Korea does the same ... it is critical for the North Koreans to resume cooperation with the International Atomic Energy Agency and to meet all of its other obligations stipulated in the Agreed Framework." Washington and Pyongyang have been sparring over the terms of the Agreed Framework and its delayed implementation for months. US officials are angry that North Korea is refusing to allow the International Atomic Energy Agency (IAEA) to carry out mandated full inspections of its nuclear facility at the Yongbyon research base north of Pyongyang. The Stalinist state has blocked the inspections, apparently in protest that the timetable for completion of the Agreed Framework, due to end by 2003, is delayed until 2008. US envoy for Korean affairs Jack Pritchard last week renewed US calls on North Korea to open nuclear facilities for international inspections and to comply with the Non-Proliferation Treaty. The first concrete was poured into the foundations of one of the two reactors in the city of Kumho last Wednesday. The North Korean Foreign Ministry spokesman said it was "most urgent" that Washington offer compensation for delays in constructing the nuclear power plant. But US and KEDO officials have said the delays were caused by a strike involving North Korean workers demanding higher wages and tensions raised by Pyongyang. The plant is to contain two 1,000 megawatt light water reactors, which would produce significantly less weapons grade nuclear material than an old nuclear plant built during the Soviet era. The United States said in March that it would refuse to certify that North Korea was abiding by the terms of the Agreed Framewor But hopes for a thaw in the long-frozen dialogue between the Cold War enemies were spurred last month when Secretary of State Colin Powell met North Korea's Foreign Minister Paek Nam-Sun on the sidelines of an Asia-Pacific security conference in Brunei. A similar encounter between Paek and then secretary of state Madeleine Albright in Bruneil in 2000 in Bangkok paved the way for the accelerated engagement of North Korea in the closing months of the previous US administration. Albright visited Pyongyang after a trip to Washington by senior North Korean military official, Jo Myong Rok. But Bush snapped off that dialogue when he took office early last year, saying he did not trust North Korea's reclusive leader Kim Jong-Il, and argued that a proposed deal to end Pyongyang's missile program lacked sufficient verification guarantees. In January, Bush identified North Korea, Iran and Iraq as "an axis of evil" bent on acquiring weapons of mass destruction and supporting terrorism, and hinted that the United States might take unilateral action to curb their aspirations. Then after a policy review, the Bush administration said it was prepared to talk with North Korea "any time, any place" without preconditions. However, Washington has said that it wants to look beyond the Agreed Framework and missiles and talk with Pyongyang about troop reductions along the border with South Korea, the last Cold War frontier. Copyright © 2002 AFP. All rights reserved. All information ***************************************************************** 4 Russia to construct floating nuclear reactor Pravda.RU Aug, 14 2002 Russia has completed development work on creating a floating nuclear powerplant and is now studying how to construct such a facility, the statenuclear energy company Rosenergoatom reported on Tuesday.Rosenergoatom said that it had received all necessary permits to moveforward with the unprecedented project. However, a spokesman for the stateagency said it was too early to say where the small-capacity power plantwould be located. The Atomic Energy Ministry reported earlier this yearthat it was considering the White Sea.Russia has long been interested in using such plants to supply electricityto remote northern and eastern regions where severe weather makesconstruction on land difficult and expensive. But despite frequentannouncements that the project had the green light, construction has notyet begun, the Russia Journal reported.. ROSENERGOATOM RBC [http://bbs.newsfromrussia.com/cgi/Ultimate.cgi] Copyright ©1999 by " [http://www.pravda.ru/] ". When ***************************************************************** 5 Nuclear newbuild at risk Guardian Unlimited | The Guardian | Markets punish British Energy for second reactor shutdown in Scotland David Gow, industrial editor Wednesday August 14, 2002 The Guardian [http://www.guardian.co.uk] Britain's atomic power industry yesterday suffered another serious blow to its revival strategy when British Energy, the country's biggest electricity producer, was forced to shut another of its 15 reactors. Its decision to close down a second nuclear reactor at Torness in east Scotland because of coolant problems that had caused its sister reactor's shutdown in mid-May saw the already struggling group lose almost a third of its value on the stock market. Twelve of its 15 reactors are now running. The company, beset by plummeting wholesale power prices, warned that this and other unplanned "outages", or closures, would cut its output forecast for the year from 67.5 terawatt hours to 63TWh and cost up to £25m to put right. With power prices at below £12 a megawatt hour compared with the £19 BE needs to earn money, analysts warned that the group would be forced to cut its dividend again and see its profits substantially damaged. It lost £41m before tax on its UK nuclear operations last year and is known to be losing substantially more this year. Robin Jeffrey, executive chairman and project manager for Torness during the 1980s, has already said a 10% cut in power prices this year will chop £140m off BE's earnings. The company added to investors' anxiety by being unable to say when its full complement of reactors would be fully operational. Yesterday's events, coming on top of BE's decision earlier this month to shut down its Dungeness B reactor in Kent for unplanned maintenance, were grist to the mill of anti-nuclear campaigners, who claimed that nuclear power was unsafe and unreliable. But a BE spokesman insisted that the decision to close down Torness - and to carry out inspections at a similar reactor at Heysham, Lancashire - was entirely precautionary and not for safety reasons. "We trip the reactors on any sign of mechanical malfunction." The problems at Torness were caused, the company said, by vibrations in two of 16 gas circulators which help to cool the two reactors. The Heysham reactor, they said, was operating normally and safely. The company insisted that some of the £25m cost of dealing with the circulators would be borne in the next financial year and any decision on the interim dividend would be taken when first half figures are published in November. It also said the cost of lost generation would be partially offset by insurance for business interruption. Senior officials said the shutdowns would have no impact on the case for nuclear new-build. "We are still buoyant about nuclear and, in terms of what's happened at Torness, this is a relatively minor operational incident." But investors - who saw BE's share price hit 749p in 1999 - took fright, with the stock down to just 47p at its lowest yesterday before closing 30% lower at 63p. BE was floated at 105p in 1996. BE's finances in Britain are so unstable that it is lobbying for exemption from the Treasury's climate change levy - which, it says, costs it £80m a year - and is pressing the European commission to ensure that all generators pay the same business rates. BE says it pays 50% more than gas and coal generators, at a cost of a further £20m. The renaissance man Compact and gregarious, a lover of Burns songs and malt whiskies, Robin Jeffrey has emerged as chief protagonist of a renaissance of the British atomic power industry in the face of widespread opposition. Dr Jeffrey, 63, ousted Peter Hollins as chief executive of British Energy last year after his lacklustre predecessor had seen the group's market value more than halved and its profits slashed to near-zero in three years. Now executive chairman, Dr Jeffrey was the architect of BE's expansion strategy in north America where he bought stakes in three US plants and took over six in Canada - and where he sees a profitable future. Dr Jeffrey has launched a series of high-profile lobbying campaigns to persuade the government that the nuclear industry is the key to solving greenhouse gas emissions and securing long-term supply. But his efforts, backed by considerable arm-twisting, have so far come to nought as problems of radioactive waste management remain unsolved, a series of mishaps at power stations grab headlines and depressed prices make the economic case for nuclear revival unviable. Useful links British Nuclear Fuels Ltd [http://www.bnfl.co.uk/website.nsf/default.htm] Campaign for Nuclear Disarmament [http://www.cnduk.org/] HSE nuclear glossary [http://www.hse.gov.uk/nsd/ilrwglos.htm] UK atomic energy authority [http://www.ukaea.org.uk/] National Radiological Protection Board [http://www.nrpb.org.uk/] World Nuclear Association [http://www.uilondon.org/] Guardian Unlimited © Guardian Newspapers Limited 2002 ***************************************************************** 6 Storing uranium for national security Nevada Appeal [http://www.nevadaappeal.com/] August 14, 2002 By Nevada Appeal editorial board What a comforting thought. The U.S. Department of Energy is unable to safely store radioactive material -- including weapons-grade uranium -- at Los Alamos National Laboratory. So it's going to ship the stuff to Nevada. Our first reaction was the knee-jerk one, conditioned by years of opposition to the DOE's plan to send nuclear waste to Yucca Mountain. We don't want the nation's waste, the plan to store it isn't safe and so far there is no plan -- safe or otherwise -- to ship it from nuclear power plants around the country to Yucca Mountain. But this nuclear stockpile is a different matter, and the place it is proposed to be shipped is the Nevada Test Site. It makes all the difference in the world. According to the Project on Government Oversight, a government watchdog which keeps a close eye on nuclear-storage issues, the federal government is storing weapons-quantity nuclear materials at 10 sites around the country. "Now, a number of sites have virtually no national security mission, however, they continue to store and try to protect tons of nuclear materials at great cost. DOE cannot currently adequately protect this material, and security at each site unnecessarily increases redundancies at costs," POGO reports. Several months ago, it recommended shutting down or combining several of the sites and consolidating the nuclear materials. The Nevada Test Site is one of the best possible locations in the country for storing the plutonium and uranium capable of producing weapons. It is secure and remote, and a new complex called the Device Assembly Facility is ready to handle the job. (Ironically, the other highly secure site for storing the material is Kirtland Air Force Base in New Mexico.) Never let it be said that Nevada is not ready and willing to do its part for national security, even when it comes to radioactive weaponry. That's what the test site's history is all about. There may well be concerns about shipping, security and the DOE's ability to handle either competently. But the site, this time, is right. Copyright Nevada Appeal ***************************************************************** 7 North Korea rejects U.S. call for nuclear inspection AFP - 8/14/2002 SEOUL - North Korea rejected Tuesday a U.S. demand to allow its nuclear facilities to be inspected and warned it may pull out of a landmark deal that has frozen its nuclear program. The North's foreign ministry spokesman said the 1994 agreement, which allowed a nuclear reactor to be built in the Stalinist country in return for it reining its nuclear weapons program, "stands at the crossroads of abrogation or preservation". U.S. envoy for Korean affairs Jack Pritchard last week called on North Korea to open its nuclear facilities for international inspections and comply with the Non-Proliferation Treaty. The spokesman said through Pyongyang's official Korean Central News Agency monitored in Seoul that a delay by the United States in meeting its end of the agreement could push the North into abandoning the deal completely. Under the so-called Agreed Framework (AF) reached in 1994, the North should allow inspections by the International Atomic Energy Agency to verify that it has no nuclear ambitions in return for receiving the U.S.-arranged power plant. The North agreed to freeze its nuclear development program and the U.S.-led Korean Peninsula Energy Development Organization (KEDO) was set up to build the five-billion-dollar nuclear power plant. But the project has been delayed. A set of two light water nuclear reactors (LWRs) was originally meant to be completed by 2003, but the deadline has now been pushed back to 2008. The first concrete was poured into the foundations of one reactor in the North's city of Kumho last Wednesday, when Prichard urged the North to come clean about its past nuclear activities by allowing inspections. But the North's ministry spokesman said "what is most urgent" was U.S. compensation for the delays in constructing the nuclear power plant. He said: "By delaying the construction of the LWRs the U.S. has caused a huge loss of electricity to the DPRK (North Korea) and created grave difficulties in its economy as a whole." "The AF stands at the crossroads of abrogation or preservation due to the... delay in the provision of the LWRs, its core issue." "The reality is pushing us to the phase where we should make a final decision to go our own way," he said. The comment reaffirmed the North's stance that the communist state would not allow any nuclear inspections on its soil in the immediate future. U.S. and KEDO officials have said the delays were caused by a strike involving North Korean workers demanding higher wages and tensions raised by Pyongyang. The plant was to contain two 1,000 megawatt light water reactors, which would produce significantly less weapons grade nuclear material than an old nuclear plant built during the Soviet era. KEDO executive director Charles Kartman last week said that the Korean peninsula was heading for a war in 1994 when Washington strongly suspected the North might have secured weapons-grade plutonium. The potential nuclear crisis was headed off with the signing of the Agreed Framework in Geneva in 1994. Pyongyang had denied its nuclear ambitions. But U.S. intelligence authorities suspected the North might have already secured weapons-grade plutonium enough to make one or two nuclear bombs. © Copyright 2002 AFP ***************************************************************** 8 Shares slump as Torness shuts its reactors Scotsman.com *Wednesday, 14th August 2002* /Jeanette Oldham/ BRITISH Energy saw around £160 million wiped from its value yesterday after problems at a Scottish nuclear power station caused a complete shutdown of the plant. Shares slumped after the company said Reactor 1 at Torness in East Lothian was taken out of service yesterday morning to investigate vibrations on one of the gas circulators, which cools the reactors. Both reactors at the Torness plant are now shut. A programme of inspection work has started into the second malfunction at the plant in three months. Reactor 2 was closed down in mid-May due to the failure of a gas circulator; an investigation into that incident is continuing. The Nuclear Installations Inspectorate (NII), the UK?s nuclear safety watchdog, announced a review of safety procedures at power stations run by British Energy. The SNP said the closure blew a hole in Labour?s theory that without nuclear energy, Scotland?s power supply network would be unable to cope, after it emerged that the shutdown would not have any impact on electricity supplies. Friends of the Earth, said the incident demonstrated that nuclear power was unsafe, and claimed similar events were "inevitable". However, UK Energy Minister Brian Wilson last night moved to reassure the public and insisted the reactor?s problems posed no danger. He added: "Because of the substantial surplus of generated electricity which we have in this country, there are no implications for security of supply and I am also assured by British Energy that jobs are not at risk." British Energy said that while its Heysham 2 plant near Blackpool had gas circulators of a similar design to Torness, the plant continued to operate safely and would not be shut down. The company also said it had brought forward its two-yearly planned maintenance programme at Dungeness in Kent following an unplanned outage at the station last week. A spokeswoman for British Energy said on 8 August, Reactor 22 at the station tripped - meaning something happened at the station to make the safety system step in to shut the plant down. She added that maintenance work had been planned to start today, but rather than switch the plant back on just for a few days, the group decided to keep it closed and start maintenance work early. British Energy operates two reactors at Dungeness B - called Reactor 21 and Reactor 22. Dungeness A is operated by BNFL. Its nuclear power stations are in Hunterston and Torness in Scotland, Hartlepool, Heysham in Lancashire, Sizewell in Suffolk, Dungeness in Kent, and Hinkley Point in Somerset. The fall in British Energy?s shares means around £200 million has been wiped from its market price. Shares yesterday closed at 61.75p, compared to 89.75p the previous evening. But an NII spokesman insisted: "There are no immediate safety issues at Torness. British Energy has kept us fully informed and has taken the appropriate action. "But British Energy and ourselves will be reviewing other stations to see whether there are any other implications." Friends of the Earth Scotland Chief Executive Kevin Dunion said: "We can be thankful there doesn?t seem to have been any radiation leak on this occasion. "But this is proof that nuclear power is unreliable and unsafe and it?s inevitable we?ll see more of these shutdowns as these stations are past their sell-by date. "They have had their lives artificially extended when they should not have. This shows that Scotland should once and for all turn its back on nuclear energy." The SNP?s deputy environment spokeswoman, Fiona McLeod, said: "This completely nails the myth peddled by New Labour scaremongers. The Scottish people have said time and time again that they don?t want nuclear power and the closure of Torness only confirms that we don?t need it," she added. ©2002 scotsman.com | contact ***************************************************************** 9 Torness setback intensifies chain reaction Guardian Unlimited | The Guardian | Long shadow cast over British Energy Wednesday August 14, 2002 The Guardian [http://www.guardian.co.uk] British Energy's long suffering shareholders were dealt another blow yesterday when the UK's biggest power generator said it had taken its second Torness nuclear reactor out of service. These shares have about as much spark as a damp flannel. From a high of 728p in 1999, they were down to around 345p a year ago. Yesterday, as news of the new Torness problems sank in the shares lost another 30%, closing at a record low of just 63p. According to power experts, every day the Torness Two are out of action costs the company some £250,000 in lost profits per reactor. It is not as if Torness is the company's only headache. Yesterday BE admitted it is also investigating its Heysham reactor in Lancashire, although the company stressed it is safe and is operating normally. The cost of the work is expected to be up to £25m. Dungeness B is also out of action, although the reason for that stoppage is unclear. The immediate worry is what BE, heading for a loss this year, will do about its dividend. It was halved from 16p to 8p in 2000 and analysts believe there is a real prospect of slicing it by another 50% when the company unveils its six month profits at the end of next month. This is not at all what executive chairman Robin Jeffrey intended when he booted out chief executive Peter Hollins last summer. A nuclear veteran, Mr Jeffrey outlined a strategy based on a nuclear revival, putting the case on the grounds of zero emissions and security of supply in an uncertain world. He bought cheap and well, snapping up reactors in the US and Canada, hoping to cash in on the "nuclear renaissance" envisaged by President Bush. But he has been blown off course by the problems at BNFL and the collapse in power prices - wholesale power prices have fallen 30% since the market became more competitive a year ago and, without a retail customer base, BE has no way of making up wholesale losses. Then there is the thorny old problem of waste, and how to deal with it. The City hasn't a clue how to account for costs, which could continue for decades after a reactor is closed. It is an issue that will cast a long shadow. No RSVP Sir Edward George can slip his headed notepaper back in the drawer, spared the embarrassing possibility of having to pen an apologetic "Dear Gordon". That doesn't mean the Bank's policy decision in the months ahead looks any easier than it did on Monday. The recent chorus of calls for a rate cut, unthinkable six months ago, hasn't had much to do with June's record low inflation figure. Plummeting equity markets have ripped a hole in growth forecasts, manufacturing output took the steepest dive in June since the winter of discontent, and there is growing evidence that the long consumer boom which has kept the economy motoring is coming to an end. Those worries will deepen if, as looks likely, some of the recovery apparently seen in the second quarter of the year is wiped away when the ONS issues revised forecasts next week. Booming property prices, which six months ago were a key component in the argument for higher rates, are now seen as beneficially helping to offset the negative wealth effects from falling markets. And with residential rents rising at the lowest rate ever, 2.4% according to the detail of yesterday's inflation data, predictions that the buy-to-let market would eventually become saturated, and begin to put a dampener on the rest of the market, seem to be coming true. So apart from putting the top back on his pen, Sir Eddie will not have been much moved by yesterday's news. The Bank makes its decision on the basis of projections for inflation two years ahead - and the 2% figure for July was pretty close to the profile he and his monetary policy committee colleagues sketched out in their latest quarterly inflation report. With nobody quite sure how much of June's bad news was a temporary, World Cup-related blip, it's wait and see for doves and hawks. EMI faces the music EMI, the UK's biggest music group, is taking a hammering from a weak market for recorded music sales and analysts are concerned that new boss Alain Levy's already lowered revenue targets for the year may not be met. In March Mr Levy was looking for flat revenue growth against a market decline in revenues of 2.5%. But by last month's annual meeting, Levy was predicting the market would be down further at 4%. On that basis analysts reckon EMI would have to grow its share of the global music market to 14% to avoid missing its targets, yet its share of the world's biggest music market in the US is falling. Latest figures from the BPI, showing recorded music sales in the UK during the three months to June are down 15.4% on last year, have set alarm bells ringing and the share price falling. The highly regarded Levy will be hoping that EMI's historically strong second half to the year comes to his rescue, and analysts expect he may find room for manoeuvre by extracting more cost savings from his restructuring. However the roster of new releases is hardly inspiring. The big hope for the autumn is a greatest hits album from croc rockers the Rolling Stones. But then as Mick Jagger has sung for years: you can't always get what you want. [UP] Guardian Unlimited © Guardian Newspapers Limited 2002 ***************************************************************** 10 NRC says 11 rules broken at Davis-Besse plant The Plain Dealer 08/13/02 John Mangels and John Funk Plain Dealer Reporters The Nuclear Regulatory Commission has tentatively decided that the operators of the damaged Davis-Besse nuclear reactor committed 11 violations of agency regulations. The unprecedented corrosion in the lid of the Davis-Besse reactor and cracking in nozzles that penetrate the lid of Davis-Besse's and the nation's 68 other pressurized water reactors has also led the agency to suggest that tougher inspections may be needed to operate the reactors safely. Though the number of violations could change, depending on the outcome of other reviews - including a criminal investigation - the company expects to be fined, FirstEnergy spokesman Todd Schneider said yesterday. The NRC bases the amount of fines on the severity of the violations, the company's record, how the plant identified the problems and whether it corrected them quickly. Large fines the NRC has recently levied include $2.1 million against the operators of the Millstone nuclear plant in Connecticut in 1997 and $500,000 against the D.C. Cook nuclear plant in Michigan in 1998. The agency expects to make a final determination of Davis-Besse's liability this fall after further review by senior agency officials. The company has the right to appeal, said Jack Grobe, chairman of the NRC's special panel overseeing the plant's repair and restart. Any fine would be in addition to the estimated $200 million or more FirstEnergy is paying to repair the crippled plant, install a new lid and buy replacement power until it is restarted. Davis-Besse's reactor, 21 miles east of Toledo, has been idle since Feb. 16 and will probably not get NRC approval to restart before the end of the year. While Davis-Besse's penalties for failing to quickly find the corrosion on its reactor lid are uncertain, operators of similar reactors are certain to incur higher inspection costs because of the bulletin the NRC issued late Friday. In the wake of Davis-Besse's corrosion, along with unexpectedly severe cracking found in nozzles in the reactor lids at several other plants that operate at high pressure, the agency is warning that current "eyeball" inspections of the lids may not be adequate. The bulletin suggests several ways instruments can be used to detect cracking of the nozzles in the 6½-inch-thick steel lids. The nozzles allow control rods to move in and out of the reactor core. It recommends how often such inspections should be done - but stops short of ordering them. Operators that don't intend to perform the advanced inspections are asked to explain their reasons. All reactor operators must respond by Sept. 9. Current regulations require that lids be visually inspected every time the reactor is idled for refueling, usually every 18 to 24 months. The proposed advanced inspections would be done on a sliding scale depending on the plant's age and operating temperature. Older, hotter plants could run no more than two years, while newer ones could go as long as five years between inspections. But by giving operators an option on whether and how to do the enhanced inspections, rather than ordering them to act, the NRC is letting the industry determine how it will be regulated, say critics David Lochbaum of the Union of Concerned Scientists and Paul Gunter of the Nuclear Information and Resource Service. Both groups are closely following the Davis-Besse situation. "It's this kind of ambiguity that doesn't foster confidence on the part of the public," said Gunter. "It's like being in the passenger seat with the driver not fully in control. The industry is driving the agency." The NRC's willingness to give reactor operators flexibility in responding to safety concerns "seems to lead them down the trap they fell into last year," Lochbaum said. He was referring to last fall when Davis-Besse did not want to shut down on the NRC's timetable to inspect for cracked and leaky nozzles. Although the agency staff was nearly certain the cracks existed, they could not prove it to the satisfaction of NRC management. The agency allowed the plant to run longer than any other high-risk reactor, and when Davis-Besse finally halted operations, workers found not only cracks but the large rust hole they had caused. Ordering all reactor operators to take specific inspection actions isn't practical for several reasons, said Bill Bateman, chief of the NRC's materials and chemical engineering branch. First, each reactor is different, so a blanket approach would not work; second, building the case for an order takes time, and third, the appeals process could cause delays. By giving the operators a say in determining how best to identify cracking, there will be fewer challenges and the NRC will get improved inspections sooner, he said. Despite continued uncertainties by both the nuclear industry and the NRC about how fast cracks grow and when they might create major leaks in the reactor lid, Bateman said the agency is confident the proposed inspection schedule will catch the cracks before they become dangerous. The enhanced nozzle inspections the NRC wants include testing with sound waves, electric currents and dyes. To reach these reporters: jmangels@plaind.com, 216-999-4842 jfunk@plaind.com, 216-999-4138 © 2002 The Plain Dealer. Used with permission. © 2002 cleveland.com. All Rights Reserved. ***************************************************************** 11 Rules broken at Davis-Besse Beacon Journal | 08/14/2002 | [http://www.ohio.com] NRC officials find possible regulatory violations in early probe of nuclear plant By Jim Mackinnon Beacon Journal business writer The Nuclear Regulatory Commission has identified 11 potential violations at FirstEnergy's acid-damaged Davis-Besse nuclear power plant. But the agency won't determine the specific number of regulatory violations, or report how serious they are, until other investigations are completed, which could take months. The NRC probably will fine the Akron utility, FirstEnergy spokesman Todd Schneider said. The NRC is investigating how boric acid was able to leak on top of the reactor vessel head for years, creating two cavities, one of which almost ate through 6 inches of steel on the head. A thin, inner lining of stainless steel prevented an accident, which would have allowed high pressure reactor coolant to spew into the concrete containment chamber that surrounds the reactor. Davis-Besse, which sits on the edge of Lake Erie about 25 miles east of Toledo, has been shut down since mid-February. NRC investigators briefed FirstEnergy officials on Friday about their preliminary findings. The team expects to have its final report finished by mid-September, an NRC spokesman said Tuesday. A separate ``risk analysis'' will determine how severe any of the 11 potential violations are, said Jack Grobe, who heads the NRC panel that will determine when Davis-Besse can be restarted. In addition, the NRC's Office of Investigations is conducting separate interviews and reviewing documents related to the damage. The Office of Investigations determines whether charges for crimes like willful deception are warranted. Once the risk analysis is done and the Office of Investigations concludes its work, the NRC will determine how many violations are at Davis-Besse, Grobe said. The analysis may be done in a month's time, while the Office of Investigations' work could take several months, he said. The NRC's tentative findings will be presented in greater detail at two public meetings on Aug. 20 at Oak Harbor High School, near Davis-Besse, NRC spokesman Jan Strasma said. The first meeting, between the NRC and FirstEnergy, will run from 2 to 5 p.m. The public will not be invited to speak during that meeting. However, residents are invited to ask questions during the second meeting, scheduled for 7 to 9:30 p.m. FirstEnergy will replace the damaged vessel head with a nearly identical part it bought from an unused reactor in Michigan. The company began cutting a hole in the thick concrete containment chamber on Monday so the new vessel head can be brought inside. The cutting process will take a week to 10 days, FirstEnergy's Schneider said. Jim Mackinnon can be reached at 330-996-3544 or jmackinnon@thebeaconjournal.com [jmackinnon@thebeaconjournal.com] About Ohio.com | About Realcities Network | ***************************************************************** 12 Russia continuing work on plans to build a floating nuclear reactor Wednesday, August 14, 2002 AP World Politics MOSCOW - Russia has completed development work on creating a floating nuclear power plant, and is now studying how to construct such a facility, the state nuclear energy company said Tuesday. Rosenergoatom said that it has received all necessary permits to move forward with the unprecedented project. But a spokesman for the state agency said it was too early to say where the small-capacity power plant would be located. The Atomic Energy Ministry said earlier this year that it was considering the White Sea. Earlier proposals also called for a floating nuclear power plant in the Chukotka region, which faces Alaska across the Bering Strait, and off the Kamchatka Peninsula in Russia's Far East. Rosenergoatom said Russian experts were to travel to China on Wednesday to consult with their Chinese counterparts about construction of the plant. The company said that discussions would focus on cooperation with Chinese financial, energy and shipyard companies. Russia has long been interested in using such plants to supply electricity to remote northern and eastern regions where severe weather makes construction on land difficult and expensive. But despite frequent announcements that the project had the green light, construction has not yet begun. Environmentalists have criticized the plans as too risky, and questioned Russia's ability to safeguard such a facility from terrorists. Critics have also expressed concern about Russia's ability to safely build and manage a floating nuclear power plant. Russia's nuclear reactors were designed in the Soviet era and many are in need of repair, prompting frequent minor malfunctions. The Soviet Union was the site of the world's worst nuclear disaster, in 1986, at Chernobyl, Ukraine. (mb/ji) Copyright © 2002 The Associated Press. All rights reserved. The information ***************************************************************** 13 Israel confirms will distribute anti-nuclear fallout pills , Ha'aretz Correspondent and Ha'aretz Service Defense Ministry Director-General Amos Yaron on Wednesday confirmed a /Ha'aretz/ report that Israel - which maintains a policy of ambiguity on its reported nuclear arsenal - was about to become the first Middle Eastern country to equip its citizenry with an antidote to the fallout from a radioactive weapon. Yaron was responding to an overnight report that the defense establishment has decided to include Lugol's Iodine capsules in the protective kits it distributes to the public. The pills, costing about $1 apiece, are meant to block the influence of radioactive iodine by buttressing the thyroid gland, considered a key mechanism for sustaining the body's immunity. "We must institute all necessary measures of caution," Yaron told Israel Radio. Asked when the capsules would be added to Israelis' gas mask kits - directed largely against the effects of biological and chemical warfare - Yaron said, "in the near future." Since September 11 - and more so after intelligence operations revealed intensive efforts by Qaeda to acquire the know-how for manufacturing "dirty" bombs - the likelihood of such an event occurring as the result, for example, of an Iranian or Iraqi action against Israel, has increased. In February 1991, Iraq tried to hit the Dimona reactor, using a cement payload as its warhead. And the Home Front is including similar possibilities in its preparations during the current U.S.-Iraqi crisis. Radioactive risk is a sub-scenario of one of the two traditional nuclear-biological-chemical risks, "Black Curtain," which refers to biological weapons. The other scenario, "Necklaces," deals with defenses against chemical attacks or accidents. Home Front Command exercises in recent years have taken into consideration the use of the pills - sometimes using candy placebos - in case of such potentially radioactive disasters as a meltdown at a reactor. Among the scenarios tested was the possibility of a meltdown on board a U.S. nuclear submarine in Haifa port. Not much credence was given to the possibility of radioactivity resulting from a hostile attack. In the U.S., Lugol's Iodine is sold in capsules without prescription. The U.S. administration has ordered hundreds of thousands of the capsules from a North Carolina factory and recommends taking it up to 14 days after exposure to radioactive fallout or a radioactive accident. Israeli doctors said Tuesday night that the iodine is much more effective if it is taken about 10 days before exposure, and not afterward, because there are side effects that might disrupt the thyroid gland. In severe cases, said the doctors, it can be life-threatening, but the danger to the wider population is much greater from radioactivity without any protection. Involved in the discussions leading up to the decision to supply the pill, which will be introduced first during the updating of protective kits, were Brig. Gen. (res.) Shaul Horev, the defense minister's assistant for special means, and the National Security Council (NSC). The Lugol decision, which overlaps the new American policy, is a reflection of the growing overlap between Washington and Jerusalem's efforts to meet common threats, from terror to weapons of mass destruction. Maj. Gen. Uzi Dayan, head of the NSC, is going to Washington in two weeks to take part in a closed-door seminar on suicide bombings, being convened by Tom Ridge, the president's adviser on domestic security and the likely head of the new Homeland Security Office. Dayan will be accompanied by a professional delegation, including IDF officers, intelligence professionals, police and Magen David Adom professionals. Dayan will use the Washington trip to bid farewell to his counterpart, National Security Adviser Condoleezza Rice, and to Francis Taylor, head of the counter-terrorism office in the State Department. Dayan leaves his position on September 6, and the NSC will remain without a chairman until mid-October, when Ephraim Halevy leaves the Mossad and takes up the position of national security adviser. © Copyright 2002 Ha`aretz. All rights reserved ***************************************************************** 14 Gas mask kits to include iodine pills against radiation Back Home By Amir Oren Israel is not giving up its policy of ambiguity about nuclear weapons in the Middle East, but it is about to become the first Middle Eastern country to equip its citizenry with an antidote to the fallout from a radioactive weapon. The defense establishment has decided to include Lugol's Iodine capsules in the protective kits it distributes to the public. The pills, costing about $1 apiece, are meant to block the influence of radioactive iodine by buttressing the thyroid gland, considered a key mechanism for sustaining the body's immunity. Home Front Command exercises in recent years have taken into consideration the use of the pills - sometimes using candy placebos - in case of such potentially radioactive disasters as a meltdown at a reactor. Among the scenarios tested was the possibility of a meltdown on board a U.S. nuclear submarine in Haifa port. Not much credence was given to the possibility of radioactivity resulting from a hostile attack. However, since September 11 - and more so after intelligence operations revealed intensive efforts by Qaeda to acquire the know-how for manufacturing "dirty" bombs - the likelihood of such an event occurring as the result, for example, of an Iranian or Iraqi action against Israel, has increased. In February 1991, Iraq tried to hit the Dimona reactor, using a cement payload as its warhead. And the Home Front is including similar possibilities in its preparations during the current U.S.-Iraqi crisis. Radioactive risk is a sub-scenario of one of the two traditional nuclear-biological-chemical risks, "Black Curtain," which refers to biological weapons. The other scenario, "Necklaces," deals with defenses against chemical attacks or accidents. In the U.S., Lugol's Iodine is sold in capsules without prescription. The U.S. administration has ordered hundreds of thousands of the capsules from a North Carolina factory and recommends taking it up to 14 days after exposure to radioactive fallout or a radioactive accident. Israeli doctors said last night that the iodine is much more effective if it is taken about 10 days before exposure, and not afterward, because there are side effects that might disrupt the thyroid gland. In severe cases, said the doctors, it can be life-threatening, but the danger to the wider population is much greater from radioactivity without any protection. Involved in the discussions leading up to the decision to supply the pill, which will be introduced first during the updating of protective kits, were Brig. Gen. (res.) Shaul Horev, the defense minister's assistant for special means, and the National Security Council (NSC). The Lugol decision, which overlaps the new American policy, is a reflection of the growing overlap between Washington and Jerusalem's efforts to meet common threats, from terror to weapons of mass destruction. Maj. Gen. Uzi Dayan, head of the NSC, is going to Washington in two weeks to take part in a closed-door seminar on suicide bombings, being convened by Tom Ridge, the president's adviser on domestic security and the likely head of the new Homeland Security Office. Dayan will be accompanied by a professional delegation, including IDF officers, intelligence professionals, police and Magen David Adom professionals. Dayan will use the Washington trip to bid farewell to his counterpart, National Security Adviser Condoleezza Rice, and to Francis Taylor, head of the counter-terrorism office in the State Department. Dayan leaves his position on September 6, and the NSC will remain without a chairman until mid-October, when Ephraim Halevy leaves the Mossad and takes up the position of national security adviser. © Copyright 2002 Ha`aretz. All rights reserved ***************************************************************** 15 Dirty Bomb Suspect Said 'Small Fish' Las Vegas SUN Today: August 14, 2002 at 6:10:28 PDT By CHRISTOPHER NEWTON ASSOCIATED PRESS WASHINGTON- The government media blitz after the arrest an American accused of plotting to detonate a radioactive bomb was almost unprecedented for a terrorist suspect post-Sept. 11. Attorney General John Ashcroft held a news conference via satellite while visiting officials in Moscow. Justice Department officials in Washington called him a significant terrorism figure and President Bush weighed in to agree. But two months later, U.S. law enforcement officials close to the case say Jose Padilla is probably a "small fish" with no ties to al-Qaida cell members in the United States. The FBI's investigation has produced no evidence that Jose Padilla had begun preparations for an attack and little reason to believe he had any support from al-Qaida to direct such a plot, said one of the officials, speaking on condition of anonymity. Still, some authorities believe Padilla should remain detained. Padilla, 31, is being held in a military brig in South Carolina as an enemy combatant, a legal designation allowing the government to jail him without formal criminal charges. His attorney has argued in court that he is being held illegally and should be released. Investigators have said they believe Padilla, a Muslim convert and a former Chicago gang member, ventured overseas in search of clerics connected to the most radical branch of Islamic fundamentalism. In early June, Ashcroft announced from Moscow via satellite hookup that Padilla was arrested at O'Hare International Airport in Chicago. Ashcroft's deputies also convened a news conference in Washington. "We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb," Ashcroft said, adding that the government's suspicions about Padilla's plans came from "multiple, independent, corroborating sources." Now, two law enforcement officials close to the case say there is no evidence a plot was under way. However, one had been "thought out as a possibility," an official said. Padilla's attorney, Donna Newman, said the government was avoiding a court case because it has little evidence against him. "What we could analyze from government statements is that they didn't have sufficient evidence to charge him," Newman said. "All they could do was allege that he was somehow involved in the talking stages of a plan and they didn't even allege his role. And that is supposed to be enough to hold him without trial?" Justice Department officials declined to comment on the matter Tuesday. A "dirty bomb" does not produce a nuclear explosion; it spreads radioactive material over a large area. Scientists say it is more likely to cause widespread sickness and panic than deaths. Since Padilla's arrest, the government has been more low-key in announcing arrests of terrorism suspects. No news conference was held when James Ujaama was taken into custody last month in Denver. Instead, law enforcement officials simply confirmed the apprehension when reporters asked. Ujaama was arrested as a material witness to terrorist activity and flown to Virginia. Federal authorities say they believe he supplied computer equipment to an al-Qaida terrorist camp in Afghanistan. Most of the information that led to Padilla's arrest came from captured al-Qaida operational chief Abu Zubaydah, officials said. Zubaydah, the highest-ranking terrorist leader taken into U.S. custody since Sept. 11, was captured and wounded in a raid in Faisalabad, Pakistan, in late March. One U.S. law enforcement official said the information Zubaydah is supplying during interrogations is not always accurate and investigators are treating his comments with increasing skepticism. For months, Padilla worked out of Lahore, Pakistan, and twice met with senior al-Qaida operatives in Karachi in March, government officials have contended. Padilla and the others are alleged to have discussed a radiological weapon plot, as well as proposals to bomb gas stations and hotel rooms. Investigators have since decided Padilla may have attended the meetings more as an observer than a participant, one U.S. official said. Still, other officials suggest Padilla was important to the government's terrorism investigations. A senior law enforcement official said he may have been a scout, chosen for his ability to move around the United States legally with a driver's license and passport. There are no plans to bring Padilla before a military tribunal and U.S. officials have argued he can be held until the government declares an end to the war on terrorism. All contents copyright 2002 Las Vegas SUN, Inc. ***************************************************************** 16 Third fatality reported in Fallon cluster [fmullen@rgj.com] RENO GAZETTE-JOURNAL 8/13/2002 09:04 pm A 22-year-old man is the third fatality in a 16-patient leukemia cluster in Fallon that scientists have been unable to explain. State health officials said the young man died Sunday in a California hospital. They said the man, who lived out of state, is considered an “associated” case in the cluster because he hadn’t lived in Fallon since 1982. They said eleven of the 16 are “direct” cases because they lived in Fallon after 1982. The identity of man who died this week wasn’t released by state officials. Sixteen people who were 20 or younger when diagnosed with the disease have been linked to the cancer cluster since 1997. Stephanie Sands, 21, and Adam Jernee, 10, died last year. “While the news is tragic, we do not want people to panic because it is an associated case,” said Randall Todd, state epidemiologist. Critics of the state’s investigation into the leukemia cluster said Todd’s efforts to minimize the latest death and reassure the public is ridiculous. “We get platitudes and reassurances,” said Floyd Sands, Stephanie Sands’ father. “What is their maximum acceptable body count before something serious is done to deal with this?” In May, state and federal health officials said the jet fuel pipeline that runs through Fallon and has been a suspect in the epidemic does not present a past, present or future health danger to the community. But the officials relied only on water tests, a look at the surface of the pipeline’s route, and information supplied by the pipeline firm to come to that conclusion. Independent researchers continue to examine jet fuel as a possible cause of the leukemia outbreak. In June, university researchers took core samples from trees around Fallon. The scientists, including Mark Witten, a pediatrics professor at the University of Arizona, also took tree samples in Sierra Vista, Ariz., where seven children have been diagnosed with leukemia. Sierra Vista is also home to a military airfield using JP-8 jet fuel. Other possible causes of the epidemic include pesticides, industrial pollution and arsenic in the town’s water supply. The federal Centers for Disease Control and Prevention has scheduled a meeting Aug. 20 in Fallon to report on the status of biological tests on patients and control families’ blood and urine. Results of a toxic “exposure assessment” study is due in the fall. Some families of leukemia patients say the agencies should be doing more. “If there is any good that comes out of this latest death, it may be that it urges the researchers to look harder,” said Matt Warneke, whose daughter Annastacia, 7, has recovered from the disease. Sands said the latest death should “ring the warning bells” in the state capital. “There’s been no sense of urgency, no sense of importance that I can see in this investigation,” Sands said. “And now another young person is dead. What a shame.” The Associated Press contributed to this story. © Copyright Reno Gazette-Journal, a [http://www.gannett.com] Newspaper. ***************************************************************** 17 Utah: A missing radioactive gauge was found Tuesday [deseretnews.com] Tuesday, August 13, 2002 The gauge, which was inside a yellow plastic box, fell off the back of a pickup truck owned by GEO-TEK Monday near 7800 South and Redwood Road. The box carrying the gauge was marked with a black and yellow "radioactive" label. Law enforcers were searching the area Tuesday morning but it was later discovered that a Utah Department of Transportation employee had found the gauge, Department of Environmental Quality information officer Laura Vernon said. DEQ officials said the gauge was secure inside the box and does not pose a significant health threat. But officials were cautioning whoever found it to not open the box. Division of Radiation Control Manager Craig Jones said this isn't the first time something like this has happened. In each previous case the item missing was recovered and no one was harmed. Vernon said the gauge is back in the hands of GEO-TEK, unharmed. © 2002 Deseret News Publishing Company ***************************************************************** 18 Uranium Plant Opponents Pack Unicoi Board Meeting * / 08-13-2002 UNICOI ? The only thing warmer than the air inside Town Hall here on Monday afternoon was the rhetoric exchanged among members of the audience of more than 80 people who packed the building and some members of the Board of Mayor and Aldermen. The majority of those jammed inside the less than 1,000-sq.-ft. former bank building appeared to be ? with notable exceptions ? opponents of the possible location of a uranium enrichment plant within the town and of a proposal to abolish zoning. Other persons, who were unable to squeeze into the building, watched the two-hour meeting as well as they could through open doors and windows. Many of those on hand for the 5:30 p.m. meeting also carried signs supporting the continuance of zoning within the town limits and opposition to a resolution being considered by the board that called for an end to zoning. Protesters Outside Outside Town Hall before the meeting, Dr. Rebecca Nunley, a spokeswoman for a citizens group call ?Citizens for the Preservation of the Valley Beautiful,? read a statement, which said, in part, ?There is a clear connection between this resolution to abolish zoning and the proposed siting of a nuclear plant in the town of Unicoi. It is wrong to manipulate the playing field in a way which puts all the power in the hands of one man.? Nunley, a dentist, repeated her remarks later during the meeting. The ?one man? to whom Nunley referred apparently was Unicoi Mayor Kenneth Lewis, who also is a member of the Unicoi County Commission and the Unicoi County Economic Development Board. Lewis, who had proposed the resolution calling for an end to zoning in Unicoi, took obvious umbrage at audience remarks about his motives. He maintained, along with Aldermen Urban Bird and Ted Hopson, that there was no connection between the zoning resolution and the possible location of a uranium enrichment plant by an international consortium on a 100-acre site off Tinker Road in Unicoi. Repeated Calls To Order Mayor Lewis, who repeatedly called for order during the meeting and once threatened to have the room cleared, said zoning had been responsible for dividing families and neighbors in the town and that discussions about ending it had been in progress long before the uranium enrichment plant issue arose recently. Mayor Lewis and Alderman Ted Hopson, who also is a member of the Unicoi County Economic Development Board, both said that they had become aware of efforts to attract a uranium enrichment plant to Unicoi only ?about two weeks? before such efforts became public knowledge. Mayor Lewis also told the audience that he and Hopson had not been involved in efforts by Economic Development Board members to ask land owners in the area along Tinker Road if they would be willing to sell their land if an industry agreed to locate in Unicoi. Hopson, who became a voice for compromise during the heated meeting, told the audience during discussion of the resolution to abolish zoning that he was willing to see zoning for the proposed plant site continued. To End Zoning Criticized Alderman Johnny Lynch, a leader of the citizens group opposed to possible location of a uranium enrichment plant in Unicoi, said he didn?t believe it would be legal to eliminate zoning for all but a portion of the town. Lynch also read a prepared statement in which he said efforts to abolish zoning would be a ?grave mistake.? In remarks apparently directed at Mayor Lewis, Lynch said, ?You talk about control of your land. Let me tell you what control is. Control is when you can stop a junkyard or an asphalt plant or an unsafe, polluting industry. ?Control is when a mayor of a town can tell you to sell your house or they will build a plant around you and you can look him in the eye and tell him where he can shove it. That?s control. We want to control our own destiny and, through zoning, we can.? Alderman Jo Lynn Martin asked if, rather than abolishing zoning, the Unicoi board could find some way to ?work within it.? Lynch?s comments produced a heated response from Mayor Lewis, who denied that he had ever told anyone to sell their land and said lies were being spread about his having done so. After Lynch spoke, Lewis allowed more than a dozen members of the audience to speak on the issue. Most said they supported zoning, but several, including Unicoi County Property Assessor Bill Gaines, spoke in favor of abolishing it. Following a lengthy discussion, Alderman Hopson proposed tabling the zoning issue until after a decision on the the location of the proposed uranium-plant is announced by an international consortium. During discussion, both Mayor Lewis and Alderman Hopson said they do not believe the consortium, called Louisiana Energy Services (LES), will choose the Unicoi site for its $1 billion uranium enrichment plant. Zoning Resolution Tabled The board voted, at 6:15 p.m., to table the resolution to abolish zoning and moved on to other matters, including a controversial proposal by Alderman Bird to institute permits for ?marching, parades and demonstrations.? Bird said his call for such permits was based on having heard that the Ku Klux Klan had recently contacted Erwin officials about the possibility of holding a gathering in that town. His proposal, he said, was not an effort to halt anti-nuclear demonstrations in Unicoi, such as one that took place when the July meeting of the Unicoi Board was canceled. After another lengthy discussion, the board also tabled action on Bird?s proposal for march, parade and demonstration permits. After dealing with some matters of routine business, the board reached the final item on the agenda, a proposal from Alderman Lynch that the town sponsor a forum on the uranium enrichment plant issue. After another, sometimes heated discussion, Mayor Lewis adjourned the meeting without a date?s being set for such a forum. Lynch had asked that the Board of Mayor and Alderman make arrangements with school officials to hold the meeting at a local school, or other public place, and arrange for experts on both sides of the uranium-enrichment-plant issue to address citizens. After the meeting, Lynch said he was happy that efforts to abolish zoning and to institute parade and demonstration permits had been tabled, but was concerned that no action was taken on his proposal to hold a public forum on the uranium plant issue. ?I wish we could have gotten that meeting scheduled,? he said. ?We did a lot of talking and arguing and didn?t get anything accomplished.? If you would like to email this story to a friend, simply fill in the information below, and we'll send a copy of this story to them -- free of charge! The Associated Press ***************************************************************** 19 Nevada sticks to Yucca attack Wednesday, August 14, 2002 Copyright © Las Vegas Review-Journal By KEITH ROGERS REVIEW-JOURNAL Nevada continued its battle this week against federal plans to put radioactive waste in Yucca Mountain, challenging a draft document that the Nuclear Regulatory Commission has issued to guide licensing of the repository. In 13 pages of comments the NRC received Monday from the Nevada Nuclear Projects Agency, state officials said the draft Yucca Mountain Review Plan is riddled with shortcomings that "mirror the frailties" of federal regulations for disposal of the nation's spent reactor fuel and highly radioactive defense wastes. "We believe that ... the regulation upon which this review plan is based, is an improper regulation and have initiated a lawsuit to that effect," Nevada Nuclear Projects Agency chief Bob Loux wrote in a letter Friday to Michael Lesar, chief of the NRC's Rules Review and Directives Branch. Nevada attorneys filed a federal lawsuit in April saying the NRC's licensing rules don't conform with the Nuclear Waste Policy Act. In July, the state also filed a 40-page petition with the NRC, claiming its regulations don't assure that the repository will protect public health and safety. The latest challenge echoes the state's previous concerns. "It appears to us the NRC is bending over backwards to make it easy for DOE to get Yucca Mountain licensed," Loux said Tuesday. An NRC spokeswoman said the commission's staff will examine the comments before finalizing the Yucca Mountain Review Plan. Copyright © Las Vegas Review-Journal, 1997 - 2002 ***************************************************************** 20 Yucca: Nuclear shipments dismay legislators Wednesday, August 14, 2002 Copyright © Las Vegas Review-Journal State has no control over federal intentions By ED VOGEL REVIEW-JOURNAL CAPITAL BUREAU CARSON CITY -- Legislators complained Tuesday about the lack of control the state has over the decision by the federal government to ship weapons-grade plutonium to the Nevada Test Site. Bob Loux, administrator of the Agency for Nuclear Projects, told the Legislative Subcommittee on Industrial Explosions that details about the shipment of the two tons of nuclear materials will be kept secret. The Energy Department announced Monday that the plutonium and enriched uranium would be shipped to the test site from the Los Alamos National Laboratory in New Mexico for security reasons. The Device Assembly Facility at the test site is considered one of the most secure places in the world for the material. Loux said the transfer is being coordinated by the National Security Administration and "no one else will be in the loop by (federal) law." He does not even know when the material will be shipped or the routes that the government will use. "That is terrible," said Sen. Dina Titus, D-Las Vegas. Sen. Randolph Townsend, R-Reno, added that the subcommittee would contact the governor and ask him to emphasize to the Energy Department that Nevada should be involved in the transfer decisions. "Somebody should know," Townsend said. "People should be trained to deal with an emergency. We should be kept abreast of what is going on." Gov. Kenny Guinn has asked the federal government to not ship the material through the Las Vegas Valley, according to Loux, but he has no idea whether his wishes will be honored. During a presentation to the subcommittee, Loux added Guinn has demanded the Energy Department avoid a Las Vegas route for an impending shipment of transuranic wastes from test site to the Waste Isolation Pilot Project in Carlsbad, N.M. Instead of going through Las Vegas, Loux said this waste, which is of medium level radioactivity, should go south into California and then east on Interstate 40 to New Mexico. But California is balking at use of that route, he added. A clearly unhappy Assemblyman Bernie Anderson, D-Sparks, expressed concern the Reno area is being forgotten, while state leaders strive to avoid nuclear shipments through Las Vegas. He pointed out that the Truckee River, the main source of water in Northern Nevada, parallels Interstate 80, which could become a route to haul high-level nuclear wastes to a repository at Yucca Mountain. "There is a potential for a dirty bomb," Anderson said. "What are we doing to protect ourselves? The rights of people in Nevada are being ignored." Loux replied, "I agree they (the Energy Department) are not to be trusted in any arena." Copyright © Las Vegas Review-Journal, 1997 - 2002 ***************************************************************** 21 NUKE' TRUCK HITS BRIDGE IN W'CHESTER NYPOST.COM Regional News: August 14, 2002 -- A truck carrying a "low level" of radioactive nuclear plant tools struck a bridge yesterday, rupturing a cargo container but releasing no dangerous substance, police said. The flatbed tractor trailer was traveling south on Route 9 when it reached the bridge at Main Street in Peekskill just after 11 a.m., said Police Chief Eugene Tumolo. The bridge is constructed so that any large truck must move from the right lane to the passing lane to clear the bridge. "The driver attempted that, but he said there was a vehicle that didn't allow him to pass," said the police chief. The truck was transporting the irradiated tools to the Indian Point 2 plant in Buchanan. After the container ruptured, "there was concern that there was a release of radiation," Tumolo said. A Westchester County team specialized in hazardous materials arrived at the scene. After an initial assessment, they concluded that "there wasn't any release," Tumolo said. "There was a very low level of radiation, a legal level." AP NEW YORK POST is a registered trademark of NYP Holdings, Inc. NYPOST.COM, ***************************************************************** 22 Lawsuit against DOE over solid wastes will continue, judge says This story was published Tue, Aug 13, 2002 By John Stang Herald staff writer BOISE -- A legal fight will continue over whether the Department of Energy can leave some solid wastes in its radioactive wastes tanks at Hanford, Idaho and South Carolina, a federal judge ruled Friday. That means DOE lost a battle to get a lawsuit dismissed that addressed this issue. But U.S. District Judge B. Lynn Winmill did not rule on the merits of the lawsuit, saying only that the litigation should continue. The lawsuit revolves around DOE considering whether it can or should permanently leave some solid wastes in its tanks at Hanford, Savannah River, S.C., and the Idaho National Engineering and Environmental Laboratory. DOE is preparing a nationwide master plan to speed nuclear cleanup. DOE said it is seriously considering leaving some solids -- possibly encased in a type of cement -- in the tanks after liquids are pumped out as a way to accelerate work and cut costs. To accomplish that, DOE would have to reclassify high-level radioactive wastes to a less dangerous form. Two watchdog organizations and two tribes have filed suit in U.S. District court in Boise, alleging leaving solid wastes in the tanks is illegal. The plaintiffs are the Washington, D.C.-based Natural Resources Defense Council, the Idaho-based Snake River Alliance, the Yakama Indian Nation and the Shoshone-Bannock tribe. The states of Washington and Idaho have become "friends of the court," meaning they are not litigants but can make legal arguments in the case. Meanwhile, DOE filed a motion to dismiss the lawsuit, contending it is too premature to litigate the issue because DOE has not yet made any specific proposals on leaving wastes in tanks. The plaintiffs countered in a July 22 hearing that delaying the litigation would give DOE too much authority to set up plans to leave the wastes that would be difficult to change later, if successfully challenged. Washington and Idaho agreed with the plaintiffs' arguments. And so did Winmill in Friday's ruling. "Tank closures, once undertaken, aren't readily altered and future judicial review may therefore be foreclosed until it is too late. The court need not wait until a threatened injury comes to fruition before undertaking judicial review," Winmill wrote. DOE has a policy of not commenting on pending litigation, said DOE spokesman Tom Welch. Gary Richardson, director of the Snake River Alliance, said: "While the judge has not ruled on the merits of this case, he made it very clear that the DOE may not continue to act as a law unto itself when it comes to how it disposes of radioactive wastes." David Mears, an assistant Washington attorney general, said if the judge had ruled in DOE's favor, the federal agency could have drifted away from its contractual obligation with the state to ultimately ship all of Hanford's high-level wastes to Yucca Mountain, Nev., for permanent storage. Hanford has 53 million gallons of highly radioactive wastes in 177 underground tanks. Savannah River has 34 million gallons in 51 tanks. And INEEL has 900,000 gallons in 11 tanks. Last December, DOE said it is looking into possibilities of not glassifying 75 percent of those wastes. Instead, it wants to hunt for cheaper and quicker options. One of several options is reclassifying some wastes to leave them in the tanks. So far, DOE has not unveiled any specific plans to leave wastes in tanks. But it is unknown if that option will be listed in DOE's new nationwide nuclear cleanup plan. That master plan was supposed to go to the federal Office of Management and Budget and become public last Thursday. As of Monday, that plan has not gone to the OMB nor has been publicly released. Copyright 2002 Tri-City Herald. All rights reserved. This ***************************************************************** 23 Uranium Plant has Community Divided - WJHL The possibility of a Uranium Enrichment Plant coming to Unicoi is causing heated debates by Amanda Croker Aug 13, 2002 WJHL.COM/NewsChannel 11] It's usually pretty quiet in Unicoi, and the people seem to like it that way. There's only 3,500 people there, and it has only been a town since 1994. But since they started talking about a Uranium Enrichment plant, this quiet little town is making a lot of noise. Emotions rocked town hall Monday night as residents and town leaders vehemently expressed their thoughts and opinions. The issue has this town divided. We went to the local hardware store and asked three different people how they felt about the possibility a plant coming to Unicoi. We got three different answers. David Black moved here in 1979 from California to live a quiet, rural life: "The less growth the better is what I would like to see and especially a plant that has potentially hazardous waste". K.D. Shultz has lived here his entire life. He doesn't see anything wrong with the idea: "I have heard if ten pounds of Uranium comes into the plant, ten pounds is leaving, and it isn't supposed to bring any waste and it will bring some good jobs into the community". Ava Cooper wants more information before she makes up her mind: "I really haven't decided. I am just kind of waiting and see what comes up." But there wasn't anyone we asked who didn't know what we were talking about. This topic has people putting signs in their front lawns and flocking to routine commission meetings. There should be a decision by the end of the week whether or not Unicoi will be on the short list of possible sites. A final decision should be made by the end of the month. If the owners decide they do want their plant to come to Unicoi that is when the debates will begin in front of the Nuclear Regulatory Commission. It is ultimately the NRC that will decide whether or not the plant will come here. [http://www.mediageneral.com] ***************************************************************** 24 Unicoi: Citizens fill hall; zoning decision delayed * Erwin Record August 15, 2002 *Local Poll* *Do you think investors will choose to locate the uranium-enrichment plant in Unicoi?* Definitely. 11% Probably. 53% Doubtful. 36% I don't know. 0% 08/13/02 */By Robin Cleavenger -- Staff Writer /* With more than 90 people packed into Unicoi Town Hall and several others watching through open windows, the town's Board of Mayor and Aldermen spent two hours Monday deciding to do nothing Ñ at least for now. At the top of the agenda was a controversial resolution that would have paved the way to abolish zoning in the town of Unicoi. Protesters gathered outside town hall half an hour before the meeting, holding signs with messages such as, ''We like our zoning just fine,'' ''We will not be ignored,'' ''Can you spell democracy?'' and ''Mayor Lewis represents Urenco Ñ not us!'' Many citizens at the protest and BMA meeting opposed the abolition of zoning in the town and questioned the timing of the ordinance as it coincides with the possible siting of a nuclear plant in Unicoi. The 120 acres near Tinker Road being considered for the proposed uranium-enrichment facility would have to be rezoned to M-2, ''heavy industrial,'' before the plant could be built. Although zoning was the official order of the day, it was clear the proposed $1.1 billion nuclear plant was at the center of the discussion Ñ in the words of Alderman Ted Hopson, ''a ghost hanging over Unicoi.'' ''There is a clear connection between this resolution to abolish zoning and the proposed siting of a nuclear plant in the town of Unicoi,'' said Rebecca Nunley, spokeswoman for Citizens for Preservation of the Valley Beautiful, a citizens' group formed to oppose the nuclear plant. ''It is wrong to manipulate the playing field in a way which puts all the power in the hands of one man.'' The resolution considered by BMA members Monday evening would have directed the Unicoi Planning Commission to draft a revision of the townƠs zoning ordinance ''returning zoning control to the rightful owners of the land.'' Upon completion, the draft would have been sent back to the BMA at the October meeting for review and adoption. The town's inability to enforce zoning regulations, a wish to bring the town's land-use practices in line with those of Unicoi County and a desire ''to return control of privately owned lands to the respective owners,'' were listed as reasons to enact the resolution. Discussion of the issue, however, was tabled after a lengthy and heated debate between board members and concerned citizens. Early in the meeting, Mayor Kenneth Lewis and Alderman Hopson both said a connection between the zoning resolution and the proposed nuclear plant, though many audience members loudly voiced their disbelief. ''The timing, perhaps, is not very good on this, but it's not a new issue,'' Hopson said. Hopson said he would support a stipulation to the resolution to make sure that whatever action the BMA took on the zoning resolution would not apply to the plant site. Hopson moved to check with planning officials to see if the town can have industrial zones but abolish residential zones; his motion also included tabling the zoning resolution until after a decision is made about the siting of the uranium-enrichment plant ''so that you will know that there are no connections between the two,'' he said. Lynch seconded the motion, which passed unanimously. Several times audience members asked the mayor and Hopson, both who hold seats on the EDB, when they first knew about possible plans to bring the plant to Unicoi. Both men said they first knew about two weeks before the EDB publicly announced that Unicoi was a possible site. ''I had never heard the word Urenco until I read it in the newspaper,'' Lewis said, referring to the plant's major European investor. For more in-depth coverage of this meeting, see a copy of the Aug. 14, 2002, print edition of The Erwin Record. ©2001 _MyWebPal.com_ . All rights ***************************************************************** 25 NUCLEAR TEST VETERANS IN LONG FIGHT FOR JUSTICE Western Morning News 12:00 - 13 August 2002 With the frigate 30 miles from the site of the atom bomb tests, the entire crew was told to go on deck to witness the explosions. They wore only standard Navy uniform and anti-flash gear for the hands and head. The men were ordered to face away from the detonation for 30 seconds before turning around to watch the mushroom cloud. They carried out the same routine three times. And Cmdr Barnett has not ruled out the possibility that he was part of the Government tests into the human effects of the bombs. Government-sponsored research undertaken in 1987 found that nuclear veterans were twice as likely to develop myeloma, the kind of cancer Cmdr Barnett has. But in 1993 the BNTVA was told: "The excesses observed previously now appear likely to be a chance finding." Cmdr Barnett said he was seeking justice rather than revenge for his illness. He has no argument with the Navy, and insists his fight for compensation is against the Government alone. To stabilise the cancer, Cmdr Barnett has been treated with a course of chemotherapy. But that has also taken its physical toll. He said: "It's completely affected my way of life, and I feel I need compensation for the deterioration in the quality of my life. It would be a great moral victory if we were to win." Cmdr Barnett joined the Navy at 18, from Exeter's Hele's School. At the height of his career he was secretary to the Chief of Staff for the southern region of Nato. Now he is hoping that a growing global awareness of the human cost of the nuclear tests will force the Government into action. Another Devon nuclear veteran, Charles Dudley, 65, has joined the fight to win compensation. Mr Dudley was at Christmas Island in 1957, where he worked on the clean-up operation after the detonations. He was sent to the site only minutes after the mushroom cloud had settled. Mr Dudley, from Pennsylvania, Exeter, thinks it could explain why his children have defective eyesight and his granddaughter died with spina bifida at eight years old. He said: "I think we were being used as guinea pigs. The experiment was to see what the human body could withstand. "It's about time the Government accepted the responsibility and appreciated what we actually did for the country." The MoD has denied a link between the veterans' illnesses and their exposure to the nuclear experiments. But the legal firms Alexander Harris and Clarke Wilmott & Clarke, who are handling the veterans' claims, are confident that they can win the case. David Harris, a partner at Alexander Harris, said recent research showed the veterans had sustained injuries which should allow them to claim compensation. Dundee University researcher Sue Rabbit-Roff said her work showed the nuclear test victims should win their fight. She said: "The illnesses are a totally predictable outcome of the work they did at the weapons tests." | Work for us Underground nuclear testing could begin at the Nevada Test Site in the next decade to ensure the reliability of the nation's aging nuclear arsenal, a Pentagon official said this morning. Scientists have relied on computer modeling and other analytical tests since 1992, when the last weapon was detonated at the Test Site. But Dr. Dale Klein, Defense Secretary Donald Rumsfeld's assistant for nuclear, chemical and biological defense programs, said that the nation may need hard data to check the weapons. "As time goes on there will likely have to be some tests preformed beyond the small scale," Klein said in an interview at Nellis Air Force Base. "There is no direct evidence that says we have to test now, but the stockpile is developing aging characteristics. "We didn't think they would be in stockpile this long." Klein, who will visit the Test Site tomorrow, said that while there has been no official move toward testing yet, he believes it will have to be done at some point, perhaps in the next five to 10 years. "Looking at it from a scientific standpoint you need to have experimental data, to go along with the modeling and analytical study," Klein said. "Of course a return to testing would be a very difficult political issue. The science community looks at it from a standpoint of obtaining knowledge." It would take two to three years to prepare the Test Site for a nuclear test, but the Bush Administration has asked for better preparedness so testing could be resumed quickly if needed. Greg Mello, director of the Los Alamos Study Group, an association of scholars working for nuclear disarmament, disagrees with the need for future testing. "The National Academy of Sciences released a study in July that said that testing is not needed to determine the reliability of the stockpile," Mello said. "This is nothing more than an ideological-driven agenda by the Bush administration to systematically undermine the test ban." The size of any future nuclear experimentation at the Test Site, an Energy Department facility in the desert 65 miles northwest of Las Vegas, is something that would be determined if testing were to be resumed, Klein said. "Science would drive the size of the testing," Klein said. The Test Site, which is larger than Rhode Island, was home to more than 1,000 above and below ground nuclear weapons test between 1951 and 1992. It has a series of underground tunnels which have served as laboratories for many of the tests. Peggy Maze Johnson, executive director of Citizen's Alert, an environmental group, said that the idea of resuming testing is unbelievable. "Did we not learn our lesson the first time?" Johnson asked. "We're paying millions of dollars to downwinders in Utah. The destruction these tests cause is just amazing, not only to people, but to the earth." The fact that the testing would be conducted underground is small comfort to Johnson. "We have a groundwater study that we conducted at the Test Site that will be released in September, and we believe that the Test Site sits right above the Amargosa River," Johnson said. "Do they think that whatever they do out there won't seep down into the groundwater?" Currently the site serves as a training ground for fire, medical and law enforcement personnel to learn how to respond to domestic terrorism. The facility's role could expand further with last month's Senate Bill that grants Nevada $35 million to expand counter-terrorism at the Test Site. In addition the Energy Department may move an advanced laboratory and its weapons-grade nuclear materials from Los Alamos, N.M. to the Test Site because of growing security concerns. In 1997 a mock terrorist attack by Army Special Forces used a Home Depot shopping cart to take more than 200 pounds of nuclear materials from the Los Alamos facility. If nuclear testing were to resume at the Test Site scientists could gain valuable information, Klein said. "Whenever testing occurs we'll be able to gain information that couldn't have been attained 20 years ago, because of how much computers have improved over that time," Klein said. Klein is responsible for helping to ensure that the country's nuclear arsenal is secure and reliable, as well as making certain that the country's military forces are trained against chemical and biological weapons. A reassessment of the security of the nation's nuclear weapons was conducted after the terrorist attacks of Sept. 11, Klein said. "Our devices are routinely moved, and we've reassessed what kind of security we use on our transportation paths and bases, as well as examining what our response would be to an attempt to obtain one of our devices," Klein said. All contents copyright 2002 Las Vegas SUN, Inc. ***************************************************************** 28 Australia defends clean-up at nuclear test site* Ananova The Australian government has dismissed claims that it botched a clean-up of a vast Outback nuclear testing site. The government says the operation to clean up site where British atomic bombs were detonated in the 1950s exceeded international standards. The comments were made by federal science minister Peter McGauran. They come as the government puts the finishing touches to paperwork formally handing back the land to its Aboriginal owners. The clean-up operation at Maralinga has been repeatedly criticised by nuclear engineer Alan Parkinson, who was involved in the process in the 1980s. Parkinson was removed from the Maralinga project after attacking the government's approach to radioactive waste. He has warned that the disposal system for contaminated earth used at Maralinga could be unsafe, with waste trenches just 50ft deep housed in limestone and dolomite strata that exhibited many cracks. Nine British atomic bombs were detonated at Maralinga, nearly 1,200 miles west of Sydney, between 1956 and 1957. But McGauran told ABC: "Everything we did at Maralinga we did on the basis of technical and expert advice in conjunction with the South Australian government and the traditional (Aboriginal) landholders. "We believe that not only was it equivalent to world's best practice but it exceeded it in many ways. We believe it is safe." Story filed: 06:08 Wednesday 14th August 2002 - Contact Ananova - About Ananova ***************************************************************** 29 Guidelines for Physician Panel Determinations on Worker Date: Wed, 14 Aug 2002 12:53:10 -0400 (EDT) http://www.epa.gov/fedreg/ ====================================================== [Federal Register: August 14, 2002 (Volume 67, Number 157)] [Rules and Regulations] [Page 52841-52857] >From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr14au02-2] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY 10 CFR Part 852 RIN 1901-AA90 Guidelines for Physician Panel Determinations on Worker Requests for Assistance in Filing for State Workers' Compensation Benefits AGENCY: Department of Energy. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Department of Energy (DOE) is today publishing a final rule providing procedures to implement Part D of the Energy Employees Occupational Illness Compensation Program Act of 2000 under which a DOE contractor employee or an employee's estate or survivor can seek assistance from the DOE Office of Worker Advocacy (Program Office) in filing a claim with the appropriate State workers' compensation system based on an illness or death that arose out of exposure to a toxic substance during the course of employment at a DOE facility. These procedures deal with how: (1) An individual may submit an application to the Program Office for review and assistance; (2) the Program Office determines whether to submit an application to a Physician Panel; (3) a Physician Panel determines whether the illness or death of a DOE contractor employee arose out of and in the course of employment by a DOE contractor and through exposure to a toxic substance at a DOE facility; (4) the Program Office processes a determination by a Physician Panel; and (5) appeals may be undertaken. EFFECTIVE DATE: September 13, 2002. FOR FURTHER INFORMATION CONTACT: Ms. Loretta Young, telephone: 202-586- 2819; fax: 202-586-0956; e-mail: loretta.young@eh.doe.gov; address: Office of Advocacy, EH-8, U.S. Department of Energy, 1000 Independence Avenue, Washington, DC 20585. SUPPLEMENTARY INFORMATION: I. Introduction II. Discussion of Rule III. Regulatory Review and Procedural Requirements A. Review under Executive Order 12866 B. Review under the Regulatory Flexibility Act C. Review under the Paperwork Reduction Act D. Review under the National Environmental Policy Act E. Review under Executive Order 13132 F. Review under Executive Order 12988 G. Review under the Unfunded Mandates Reform Act H. Review under the Treasury and General Government Appropriations Act, 1999 I. Review under Executive Order 13211 J. Congressional Notification I. Introduction Part A of the Energy Employees Occupational Illness Compensation Program Act of 2000 (``the Act'') (42 U.S.C. 7384, et seq.) establishes a program for compensating covered DOE and DOE contractor employees, as well as covered employees of certain private companies that did work for DOE and its predecessor agencies, including work involved in nuclear weapons production (Part A program). Covered workers with certain illnesses, including chronic beryllium disease, radiation- induced cancers, and silicosis, may be eligible for specified Federal benefits under the Part A program. Executive Order 13179 (65 FR 77487, December 7, 2000) assigns the Department of Labor (DOL) primary responsibility for that program. Workers with illnesses eligible for compensation under the Part A program, as well as workers with illnesses not eligible for the Part A program, may also apply to their respective State workers' compensation systems if they wish to receive benefits not provided by the Federal compensation system, notably lost wages and benefits for permanent partial disability. Part D of the Act (42 U.S.C. 7385) authorizes the Secretary of Energy to enter into an agreement with each State to provide assistance to a DOE contractor employee in filing a claim under that State's workers' compensation system for an illness caused by exposure to a toxic substance at a DOE facility (``State Agreement''). An applicant can submit an application to the Program Office at DOE for assistance in filing a claim with that State's workers' compensation system. If the application comes within the terms and conditions of the relevant State Agreement and contains reasonable evidence that the illness or death of a covered worker may be related to employment at a DOE facility, then DOE must submit the application to a Physician Panel established under the [[Page 52842]] Act to determine the validity of the applicant's claim that the illness or death arose out of exposure to a toxic substance during the course of employment at a DOE facility. Section 3661(d) of Part D of the Act provides that a Physician Panel must make its determination ``under guidelines established by the Secretary [of Energy], by regulation.'' If a Physician Panel makes a positive determination and the Program Office accepts it, then the Program Office must assist the applicant in filing a claim with the relevant State's workers' compensation system. In addition, DOE may not contest the applicant's workers' compensation claim or any award made to settle the claim to the extent such claim or award is based on the same health condition that was the subject of a positive determination by a Physician Panel. And, to the extent permitted by law, DOE may direct a DOE contractor not to contest such a claim or award. Furthermore, if the DOE contractor employer contests the claim or award, the costs of contesting the claim or award are not allowable costs under a DOE contract. Part D operates to ensure that DOE will assist, and not hinder, the processing of an applicant's claim under a State workers' compensation system if the claim is based on the same health condition that was the subject of a positive determination by a Physician Panel. DOE will not contest and DOE will direct its contractors not to contest such a claim. Part D, however, does not federalize State workers' compensation standards, or affect the normal operation of State workers' compensation systems other than the limits Part D places on the extent to which DOE and DOE contractors can contest certain claims. Part D does not expand or contract the scope of any State workers' compensation system, and does not change the rights, obligations, conditions, and compensation amounts for a claimant under any such system. Thus, significant variations will continue to exist among State workers' compensation systems with respect to matters such as benefit levels, length of coverage, and the types and computation of medical costs, lost wages and disabilities eligible for compensation. Moreover, neither Part D nor DOE's rules implementing Part D will make a worker eligible for compensation under a State workers' compensation system if the worker is not otherwise eligible. However, use contract administration to encourage DOE contractors to pay workers' compensation claims against which they might have technical defenses not going to the question of whether a contractor employee's illness arose out of employment at DOE. DOE will seek to carry out this statutory mandate faithfully. DOE published a notice of proposed rulemaking (NOPR) under Part D on September 7, 2001, 66 FR 46742. DOE received numerous comments on the NOPR during the comment period, and continued to receive comments after the close of the comment period from various Members of Congress and their staffs, as well as other commenters. II. Discussion of Rule A. What Is The Purpose of This Rule? The rule establishes procedures for implementing Part D of the Act. Section 852.1(a) of the final rule provides that these procedures address how: (1) An individual may obtain and submit an application to the Program Office for review and assistance; (2) the Program Office determines whether to submit an application to a Physician Panel; (3) a Physician Panel determines whether the illness or death of a DOE contractor employee arose out of and in the course of employment by a DOE contractor and through exposure to a toxic substance at a DOE facility; (4) the Program Office processes a determination by a Physician Panel; and (5) appeals may be undertaken. B. What Is the Scope of This Rule? Section 852.1(b) makes clear that the procedures only cover applications that meet three criteria. First, the application must be filed by or on behalf of a DOE contractor employee, or a deceased employee's estate or survivor. Second, the application must be based on the illness or death of DOE contractor employee that may have been caused by exposure to a toxic substance. Third, the application must be based on an illness or death that may have been related to employment at a DOE facility. Consistent with the statutory emphasis on State Agreements as a precondition for action under Part D of the Act, section 852.1(c) provides that all DOE actions under the Part D program must be pursuant to a relevant State Agreement and consistent with its terms and conditions. C. What Definitions Are Used in This Rule? The rule contains definitions of ``Act'', ``Applicant'', ``DOE'', ``DOE contractor employee'', ``DOE facility'', ``Physician Panel'', ``Program Office'', ``State Agreement'', and ``Toxic Substance''. D. What Is the Act? The Act is the Energy Employees Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 7384, et seq.) E. Who Is an Applicant? An applicant is an individual seeking assistance from the Program Office in filing a claim with the relevant State workers' compensation system, including but not limited to a living DOE contractor employee, the estate of a deceased DOE contractor employee, or any survivor of a deceased DOE contractor employee who is eligible to apply for a death benefit or a survivor's benefit under the State workers' compensation system for which the applicant is seeking assistance in filing a claim. Proposed section 852.2 had defined an applicant as a DOE contractor employee or the employee's estate seeking assistance from the Program Office in filing a claim with the relevant State workers' compensation system. In the final rule, the definition has been extended to survivors because State workers' compensation systems generally provide income benefits to specific survivors, notably spouses and dependent children of deceased workers. The final rule permits such individuals to apply to DOE for assistance in filing for State workers' compensation benefits, based upon the illness or death of the deceased DOE contractor employee. F. Who Is a DOE Contractor Employee? Section 852.2 defines a DOE contractor employee to be an individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months, or an individual who is or was employed at a DOE facility by either an entity that contracted with DOE to provide management and operating, management and integration, or environmental remediation at the facility, or a contractor or subcontractor that provided services, including construction and maintenance, at the facility. This definition repeats the language used to define a DOE contractor employee in section 3621(11) of the Act and is the same as the definition in the NOPR that referenced the definition found in section 3621(11) of the Act. DOE believes incorporating the actual statutory language into the rule will make the rule more understandable and easier to use. The term ``DOE contractor employee'' does not include all employees eligible for the Part A program. It does not [[Page 52843]] include atomic weapons or beryllium vendor employees who were not employed by a DOE contractor at a DOE facility. In addition, it does not include Federal employees. A commenter stated that the definition of a DOE contractor employee needs to include subcontractor employees. DOE agrees that subcontractor employees are covered by Part D of the Act, but no change in the rule is necessary to confirm this coverage. The definition of a DOE contractor employee clearly includes an individual who is or was employed at a DOE facility by a subcontractor that provided services at that facility. G. What Is a DOE Facility? As with the definition of DOE contractor employee, section 852.2 of this final rule defines ``DOE facility'' by repeating the definition found in section 3621(12) of the Act, rather than merely cross- referencing the statutory definition as the proposed rule did. This is a nonsubstantive change to the proposed rule, and is made only for the purposes of clarity in the text of the final rule. ``DOE facility'' thus is defined as any building, structure, or premise, including the grounds upon which such building, structure, or premise is located in which operations are, or have been, conducted by, or on behalf of, DOE and with regard to which DOE has or had a proprietary interest; or entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services. Further, this definition specifically excludes facilities covered by Executive Order No. 12344, dated February 1, 1982 (42 U.S.C. 7158 note), pertaining to the Naval Nuclear Propulsion Program. DOE has published a list of facilities it considers to be DOE facilities for purposes of the Act. (66 FR 4003, January 17, 2001; revised 66 FR 31218, June 11, 2001). H. What Are Physician Panels? Physician Panels are appointed by the Secretary of Health and Human Services (HHS) in response to requests by DOE pursuant to Part D of the Act. Physician Panels provide DOE with impartial and independent determinations as to whether the illness or death of a DOE contractor employee arose out of and in the course of employment by a DOE contractor and exposure to a toxic substance at a DOE facility. Physician Panels may be asked to review new applications that have not undergone prior Physician Panel review, or to reexamine applications that have already undergone Physician Panel review. I. What Is the Program Office? The Program Office is the DOE Office of Worker Advocacy or any other DOE office subsequently designated by the Secretary of Energy. J. What Is a State Agreement? Section 852.2 defines ``State Agreement'' as an agreement negotiated between DOE and a State that sets forth the terms and conditions for dealing with an application for assistance under Part D of the Act in filing a claim with the State's workers' compensation system. The existence of a State Agreement with a particular State is necessary before the Program Office can refer to a Physician Panel a claim by an applicant who will file his/her worker's compensation claim in that State. Part D is clear that any action by DOE must be in accordance with the terms and conditions of the relevant State agreement. K. What Is a Toxic Substance? Section 852.2 defines ``toxic substance'' as ``any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature.'' This definition is the same as that proposed in the NOPR. DOE believes that this definition is consistent with the intent of Part D of the Act and will permit DOE to assist claimants with claims based on illnesses or deaths that arose from exposure to toxic substances to the extent such claims are recognized by a State workers' compensation system. There were a number of comments on the NOPR definition of ``toxic substance.'' Many commenters supported the NOPR definition, though others suggested modifications to the definition. One commenter suggested that noise should be included as a toxic substance. DOE understands that noise can cause harm to workers in certain situations. However, the dictionary defines ``toxic'' as ``of, relating to, or caused by a poison or toxin.'' DOE does not believe that noise operates to poison people because it does not injure by chemical action. Hence, it does not fit comfortably within the ordinary meaning of ``toxic substance.'' Neither the text of Part D nor its legislative history suggests otherwise. Another commenter suggested that only chemicals be considered toxic substances for the purpose of the rule. However, radioactive or biologically harmful substances are commonly described as being ``toxic,'' and these substances fit comfortably within the ordinary meaning of ``toxic substance.'' Given the content of the legislation, DOE does not believe it would be consistent with the general thrust of the Act to limit ``toxic substances'' to chemicals and to exclude other substances, or to define the term solely by reference to the chemical properties of a substance and to ignore radioactive or biological properties. L. How Does an Individual Obtain and Submit an Application for Review and Assistance? Section 852.3 describes how an individual obtains and submits an application for review and assistance. An application can be obtained in person from the Program Office, from any Resource Center, and from any DOE-sponsored Former Worker Program project. A Resource Center is a publicly accessible office administered jointly by DOE and DOL for the purpose of assisting an individual in applying for assistance or benefits under the programs established under the Act. There are currently ten Resource Centers located throughout the United States. There are presently approximately one dozen Former Worker Program projects throughout the United States. These pilot projects currently offer screening examinations for the detection of occupational illnesses for individuals formerly employed at some DOE facilities. The Program Office's current mailing address, phone number and web site, at time of publication of this final rule are included in this section. Any future changes in this contact information will be published in the Federal Register and noted on the Program Office's web site. A commenter suggested that applications should also be obtainable in person from any DOE Operations or Area Offices, or from an employer who is currently a DOE contractor. Other commenters requested that section 852.3 include the Program Office's mailing address and web site. DOE finds that it would be logistically difficult for the Program Office to assure that complete application packages would be available at all times from all of the many DOE contractor facilities and DOE Operations and Area Offices. DOE believes that the nationwide network of Resource Centers, coupled with the availability of applications through mail or telephone requests to the Program Office, or in a printable format, from the Program Office's web site, provide adequate accessibility to application materials. The program has and will continue to be publicized so that potential applicants are aware of the [[Page 52844]] program and how to apply. In the final rule, section 852.3 has been revised to include the Program Office's current phone number and mailing address for requesting an application, as well as the web site from which application forms can be printed. Section 852.3 also describes how an application is submitted. An application can be submitted in person to the Program Office, to any Resource Center, or to any DOE-sponsored Former Worker Program, where staff will be available to answer questions and assist the individual in filling out the application. An application can also be submitted by mail to the Program Office. Section 852.4 describes the information and materials that the individual must submit as a part of the application for Physician Panel review, additional discretionary information and materials that the applicant may choose to submit, and the essential information that must be included in records released by a third party or submitted by the applicant in support of an application. Section 852.4 specifies that the individual must complete and sign any application forms required by the Program Office. The application forms request basic information about the applicant and the worker upon whose illness or death the application is based. In order to assure that the Program Office has reasonable evidence to determine whether an individual meets the eligibility criteria for Physician Panel review, and that the Physician Panel has sufficient information to make a causation determination on an application, section 852.4 requires the applicant to provide: (a) the name and address of any licensed physician who is the source of a diagnosis based upon documented medical information that the employee has or had an illness and that the illness may have been related to exposure to a toxic substance while the employee was employed at a DOE facility and, to the extent practicable, a copy of the diagnosis and a summary of the information upon which the diagnosis is based; and (b) a signed medical release, authorizing non-DOE sources of medical information to provide the Program Office with any diagnosis, medical opinion and medical records documenting the diagnosis or opinion relevant to whether the employee has or had an illness and whether the illness arose from exposure to a toxic substance while the employee was employed at a DOE facility. The requirement that the applicant submit the information identified in section 852.4 is intended to satisfy the statutory provision that an applicant must supply the Program Office with reasonable evidence that the statutory threshold is met for referral to a Physician Panel. Among other things, and even though an applicant is not required to supply a physician's diagnosis as part of an application, applicants who wish to rely on such a diagnosis to support their applications should identify the diagnosing physician and submit a copy of the diagnosis. DOE encourages the submission of diagnoses where possible because they will enable the Program Office and Physician Panels to do their work more quickly, efficiently and reliably. Part D neither directs DOE to provide nor bars DOE from providing assistance to an applicant in obtaining a medical diagnosis or developing other medical evidence to support the applicant's application before a decision is made whether to refer it to a Physician Panel. However, and while Part D makes clear that the applicant bears primary responsibility for submitting sufficient information to support his/her application and meet the requirements of section 852.6 of the final rule, DOE will assist applicants as it is able. Specifically, DOE may be able to provide certain types of information as discussed below in connection with section 852.6. Section 852.4 of the final rule also permits the applicant to submit to the Program Office any other information or materials providing evidence that the employee has or had an illness that arose from exposure to a toxic substance during the course of employment at a DOE facility. The applicant must sign an affidavit attesting to the authenticity and completeness of any information or materials submitted to the Program Office, or provide the Program Office with other evidence of authenticity of submitted materials, such as certification of submitted copies of originals. To the extent practicable and appropriate, the records submitted by the worker or released by a third party must also include an occupational history obtained by a physician, an occupational health professional, or a DOE-sponsored Former Worker Program. DOE does not intend that a worker should incur financial or other hardship in having such a history taken, but instead requests that any such occupational history already in a worker's medical records be submitted to the Program Office by the applicant. If the worker's records do not already include such a history, then DOE requests that the worker have such a history obtained and have this history released to the Program Office, if the worker can readily have such a history obtained from a Former Worker Program or other source without incurring undue hardship. If such an occupational history is not reasonably available by these means, and is deemed by the Program Office to be needed for the fair adjudication of the claim, then the Program Office must assist the applicant in obtaining this history, if it can be obtained from the worker upon whom the application is based. In section 852.4(d) of the NOPR, there was a provision for submission of an ``employment history'' as a part of the application. In the final rule, the requirement for submission of an ``employment history'' appears in section 852.4(a)(4), and the term ``employment history'' is changed to ``occupational history'' because the latter is in more general usage in the occupational health field. The other changes in this section were made to assure that an adequate occupational history is available for Physician Panel review. Omitted from the final rule is section 852.4(c) of the NOPR which would have required an applicant to sign a release of information permitting the Program Office to obtain any records under the control of DOE and relevant to the application. Under the Privacy Act of 1974, as it pertains to DOE records system ``DOE-10 Worker Advocacy Records'' (66 FR 27307), such a release is not required for DOE to obtain records controlled by DOE for legitimate purposes related to this program. M. What Information May an Employer Submit in Response to an Application Submitted to a Physician Panel? New section 852.5 requires the Program Office to notify an employer when the Program Office has determined that an application by or on behalf of a current or former employee of that DOE contractor meets the requirements of section 852.4. After receiving this notification, the employer has 15 working days to provide the Program Office with any information deemed by the employer to be relevant to the application. The employer must sign an affidavit attesting to the authenticity and completeness of any information or materials submitted to the Program Office for this purpose, or provide the Program Office with other evidence of authenticity of submitted materials, such as certification of submitted copies of originals. DOE will provide the Physician Panel with [[Page 52845]] materials submitted by an employer for use in making its determination. Two commenters expressed the opinion that the contractor has the right to be notified that a claim has been filed, and be given the opportunity to provide information relevant to the application, including information that might rebut the claim. Others noted that the employer may be the only source of certain relevant information, including information relating to the issue of causation, and noted that, under the proposed rule, the employer would not be able to present evidence to a Physician Panel or to present evidence to contest a determination by a Physician Panel in a State workers' compensation proceeding. Both commenters felt that the employer should be afforded the opportunity to provide the Program Office with evidence relevant to the application. DOE agrees with these commenters and has added this new section 852.5 to provide employers with notice and the opportunity to submit relevant information before the Program Office makes a determination whether to submit an application to a Physician Panel. N. How Does the Program Office Decide Which Applications To Submit to a Physician Panel? As proposed in the NOPR, section 852.6 (proposed as section 852.5) would have required DOE to apply eligibility criteria contained in the relevant State workers' compensation statutes and used by the relevant State in determining the validity of a workers' compensation claim. The criteria would have been specified in the State Agreement with the State in which the claim would be filed, as specified in proposed section 852.6. In the NOPR, DOE solicited comments on whether these State criteria should be applied by the Program Office, or alternatively, by State officials on a reimbursable basis. DOE also requested comments as to whether the use of a screening mechanism is consistent with the statutory framework and whether the use of applicable State criteria or uniform Federal criteria better achieves the statutory objectives. Commenters generally opposed the application of State specific criteria during the screening of applications and urged that the Program Office submit to the Physician Panel those applications that meet the minimum statutory criteria identified in the Act. Commenters also expressed the concern that application of State specific criteria at this stage would erect barriers to claims that should be presented to the Physician Panel. Still other commenters urged the establishment of a uniform Federal standard for eligibility and causality. Some States commented that they would not be willing to screen applications on a reimbursable basis. Several States also questioned whether DOE would be able to screen applications on the basis of whether an application presented a compensable claim under a State workers compensation system. After considering the comments, DOE has decided that the eligibility criteria for referral of a claim to a Physician Panel should be based on the criteria specifically set forth in the Act, and should focus on whether the applicant provides reasonable evidence of an illness or death that may have been caused by exposure to a toxic substance during the course of employment at a DOE facility. Thus, section 852.6(a)(1) and section 852.6(a)(3) of the final rule track the language in Part D. Section 852.6(a)(2) further requires that an applicant submit reasonable evidence that the employee's illness or death ``may have been caused by exposure to a toxic substance.'' While this requirement does not appear in section 7385o(b)(2) of the statute, it reflects part of the determination that Part D requires a Physicians Panel to make if the panel is to render a determination in an applicant's favor. DOE believes that it is only logical for the applicant to be required to submit, and for the Program Office only to refer to Physician Panels applications in which the applicant has submitted, reasonable evidence in support of the determination the Physician Panel is being asked to make. Consistent with the general tenor of the comments, today's final regulations provide that applications which satisfy these minimum criteria should be submitted to a Physician Panel for review. It is the role of the Physician Panel to determine if the applicant can satisfy the medical criteria for causation specified in these final regulations. Non-medical criteria, such as statutes of limitations, should not be used by the Program Office to screen applications, or by the Physician Panels to make medical causation determinations. DOE is aware that by excluding non-medical criteria from the screening process, it may submit to a Physician Panel an application by an applicant whose State workers' compensation claim might be barred by non-medical criteria (such as the applicable statute of limitations). A Physician Panel could in turn make a causation determination in favor of an applicant, and the Program Office could accept such a determination even though there might be various medical or non-medical impediments to the applicant's State workers' compensation claim as will be discussed below. Part D is designed to remove obstacles to recovery of this type when it can do so through contract administration tools. These results do not impose a Federal standard on a State workers' compensation system. States will continue to have the ability to administer their workers' compensation systems in accordance with applicable State law. DOE's action merely would constitute a decision by DOE not to raise defenses to a workers' compensation claim by an applicant who has received a favorable Physician Panel determination. Section 852.6 identifies the criteria the Program Office uses to determine whether to submit an application to a Physician Panel. An application must contain reasonable evidence allowing the Program Office to make an initial determination that the following three conditions are met. First, the application was filed by or on behalf of a DOE contractor employee or the employee's estate or survivor. Second, the illness or death of the DOE contractor employee may have been caused by exposure to a toxic substance. Third, the illness or death may have been related to employment at a DOE facility. The Program Office must refer to a Physician Panel any application that provides reasonable evidence meeting each of these criteria. Applicants with a medical diagnosis to support their applications should submit that diagnosis and supporting medical documentation because such information likely will constitute the strongest evidence in support of an applicant's causation argument. Applicants who do not submit a diagnosis by a licensed physician will have a more difficult time meeting the section 852.6 standard. However, the regulations do not require that a medical diagnosis be submitted before an application meets the applicable standard, and as section 852.4 makes clear, applicants are free to submit whatever information they have that they believe supports their application. O. What Provisions Does a State Agreement Contain? Proposed section 852.6 in the NOPR identified three elements to be included in a State Agreement: a provision that the State would identify the applicable criteria used to determine the validity of a workers' compensation claim under State workers' compensation law and describe how these criteria are applied in a State workers' compensation [[Page 52846]] proceeding; a provision that only those applications that could satisfy the identified applicable criteria would be submitted to a Physician Panel; and a provision that the Program Office would provide assistance only to those applicants that satisfy the applicable criteria. DOE intends the State Agreement to be the understanding between DOE and a State as to the terms and conditions for dealing with an application for DOE assistance in filing a workers' compensation claim. State Agreements are not intended to alter State criteria. As noted in the discussion of section 852.6, a number of commenters objected to the concept of the Program Office using State criteria to screen applicants for assistance prior to submission of an application to a Physician Panel. As a result, that section has been revised to eliminate consideration of State criteria at that point in the screening process. Similarly, several commenters objected to inclusion in the State Agreements of State criteria for determining causation and other medical eligibility issues. Some commenters stated that State Agreements should contain Federal standards to be applied in determining eligibility and causality. As will be discussed below, DOE believes that it is consistent with the statutory requirement and structure of the program under Part D for the Physician Panels to use a uniform federal standard for determining causation rather than the specific causation requirements of the workers' compensation system for the State in which an applicant will file his/her claim. DOE also solicited comments as to what other provisions should be included in State Agreements. Commenters argued that the State Agreements should include a provision for reimbursement or indemnification to contractors or insurance carriers for claims accepted under Part D. DOE has determined that such provisions should not be placed in the State Agreements. Rather, section 852.19 of the final rule provides for reimbursement of contractors for additional workers' compensation costs incurred as a result of workers' compensation awards on claims based on the same health condition that was the subject of a positive Physician Panel determination. However, the Act does not authorize DOE to reimburse or indemnify insurers; nor does it authorize the appropriation of funds to do so. Therefore, neither the final regulations nor the State Agreements provide for reimbursement or indemnification of insurers. Commenters also expressed concern for the precedential effect of a Physician Panel finding of medical causation. A positive finding by a Physician Panel is not binding on a State worker's compensation system or any person other than DOE and, if so directed by DOE, a DOE contractor. The effect of a positive Physician Panel determination is to obligate DOE to assist the applicant in the State worker's compensation proceeding. It does not prevent anyone other than DOE or a DOE contractor so directed by DOE from contesting causation or any other issue. One commenter observed that Part D of the Act is permissive, not required, and that the Secretary has the option to decide not to negotiate State Agreements with States. While the commenter is correct that the program under Part D is discretionary and dependent on the negotiation of State Agreements, DOE believes Congress did not enact Part D in the expectation that DOE would make it a dead letter by refraining from attempting to negotiate any State Agreements. DOE therefore has determined that it should seek to negotiate agreements with the States as anticipated by this Part. Of course, implementation of the program under this Part with respect to any particular State or state workers' compensation program will depend on the successful negotiation of a State Agreement between DOE and the relevant State. One commenter expressed concern that there are jurisdictions without a State agency to enter into such an agreement. DOE finds that all jurisdictions have a workers' compensation administrative agency with which DOE believes it can work. As revised, section 852.7 provides for four standard provisions in State Agreements. First, the State Agreement must include a provision that an application will be submitted to a Physician Panel only if it contains reasonable evidence, including appropriate medical documentation, that (1) the worker who is the subject of the application is or was a DOE contractor employee, (2) the worker has, had or died of an illness that may have been caused by exposure to a toxic substance, and (3) the exposure occurred during the course of employment at a DOE facility. Second, a State Agreement must include a provision that requires a Physician Panel to apply the standard of causation set forth in section 852.8 of DOE's regulations when making determinations of medical causation. Third, a State Agreement must include a statement that the Program Office provides assistance only to an applicant who receives a positive determination from a Physician Panel. Fourth, a State Agreement must include a statement that a positive determination by a Physician Panel has no effect on the normal operation of a State workers' compensation system. However, as provided elsewhere in this rule, the determination will prevent DOE from contesting a State workers' compensation claim or award with regard to the health condition that was the subject of the Physician Panel determination. It also will result in DOE's direction to the relevant DOE contractor not to contest such claims or awards. State processes concerning issues such as benefit level determinations, disability determinations such as permanent partial disability (PPD), and apportionment, will proceed according to routine State workers' compensation system operation. P. What Guidelines Does a Physician Panel Use To Determine Whether an Illness or Death Arose Out of and in the Course of Employment by a DOE Contractor and Exposure to a Toxic Substance at a DOE Facility? Section 852.8 provides that a Physician Panel determines whether an illness or death arose out of and in the course of employment by a DOE contractor and exposure to a toxic substance at a DOE facility based whether it is at least as likely as not that exposure to a toxic substance at a DOE facility during the course of the worker's employment by a DOE contractor was a significant factor in aggravating, contributing to or causing the worker's illness or death. In proposed section 852.7 of the NOPR, a common federal causation standard and burden of proof were specified, namely, that it is more likely than not that exposure to a toxic substance at a DOE facility during the course of employment by a DOE contractor caused the illness or death. DOE solicited and received a number of comments on the appropriate burden of proof and causation standard to be applied by the Physician Panels. Some commenters expressed support for an ``as likely as not,'' or a ``more likely than not'' standard. Other commenters supported a standard of ``any contributing factor'' or ``a substantial contributing factor.'' Still other commenters suggested a standard of ``significant factor in aggravating, contributing to or causing illness, disability or death,'' and other commenters supported State- specific causation standards. [[Page 52847]] DOE has decided, for several reasons, that Physician Panels should not use standards of the individual States with regard to medical causality or burden of proof determinations, and that instead, the regulations should require Physician Panels to use the single uniform federal standard for burden of proof and medical causality set forth in section 852.8. First, while Part D certainly is susceptible of more than one interpretation on this point, DOE believes the best interpretation of the statutory text is that DOE should adopt a uniform federal standard. Nowhere does the statute indicate that Physician Panels should apply State standards for burden of proof or causation; indeed, 42 USC Sec. 7385o(d)(3) speaks in terms that seem to call for a single federal standard (i.e., the panels shall determine ``whether the illness or death that is the subject of the application arose out of and in the course of employment by the Department of Energy and exposure to a toxic substance at a Department of Energy facility''). Second, DOE believes it will better effectuate the purpose and policy of Part D for the Physician Panels to apply a uniform federal standard. In DOE's view, the primary purposes of Part D are for DOE to assist deserving applicants in applying for and obtaining State workers' compensation benefits, to ease the administrative burden on applicants when applying for State workers' compensation benefits, and to enable some applicants to gain benefits that they might not receive under normal operation of the State systems by requiring DOE and its contractors not to contest certain State workers' compensation claims, using contract administration tools to encourage outcomes of this type. These purposes can be better fulfilled through a uniform federal causation standard for the Physician Panels. If the Physician Panels were required to use State standards of causation and burden of proof, applicants potentially would be forced to endure the administrative burden at the Physician Panel stage that Part D in fact wishes to relieve applicants from bearing at the State worker compensation proceeding stage. Third, DOE believes that application of a single federal standard by the Physician Panels will make administration of the Part D program much more equitable and efficient. A requirement that Physician Panels (as well as the Program Office in reviewing Physician Panel determinations) use State-specific causation and burden of proof standards would require that the panels and Program Office become intimately familiar with the laws of numerous different States, and likely would lead to inconsistencies in how State law is interpreted and applied by the States, the Program Office and the Physician Panels. Such inconsistencies could, in turn, lead to inequitable results and wasteful controversy and litigation. A single federal standard will be easier for the Program Office and the Physician Panels to administer and will allow DOE to treat equally similarly situated applicants in different States. Fourth, DOE believes a uniform federal causation standard allows DOE to promote the purposes of Part D by setting the standard at a level that fairly interprets the statutory command while also attempting to assist the largest possible number of deserving applicants. The use of State-specific causation standards would prevent DOE from furthering the statutory purposes in this manner. Such a result would be particularly inequitable and would not be a sound policy choice or interpretation of Part D, simply because Part D quite clearly does not compel the Program Office or Physician Panels to use State-specific causation standards. As to the federal standard to be adopted and promulgated in section 852.8, DOE has decided that a Physician Panel must render a causation determination in the applicant's favor if the panel determines that it is at least as likely as not that exposure to a toxic substance at a DOE facility during the course of employment by a DOE contractor was a significant factor in aggravating, contributing to or causing the illness or death of the worker at issue. DOE intends that, as used in this context, the word ``significant'' should have its normal dictionary definition and meaning--that is, ``meaningful'' and/or ``important.'' DOE believes that the standard set forth in section 852.8 fairly interprets the text of Part D. It also represents a policy decision by DOE to aggressively pursue the purposes of Part D by setting the causation standard at a level that is below the level of proof that applicants might be required to demonstrate to obtain workers' compensation benefits in some States. DOE has decided to adopt the ``significant factor'' causation standard rather than the ``more likely than not'' standard proposed in the NOPR because the ``more likely than not'' standard is too high and could result in deserving applicants being denied the assistance Part D was intended to afford. On the other hand, DOE rejects extremely lenient standards (such as ``any contributing factor'') because such standards do not constitute a fair interpretation of the statutory language (i.e., that the illness or death ``arose out of and in the course of'' employment at a DOE facility and exposure to a toxic substance). DOE recognizes that the causation standard in section 852.8, and the causation standard applied by DOL for certain benefits determinations under other compensation programs established by the Act, are different. DOE further recognizes that this difference in causation standards may contribute to some applicants who file applications in both the DOE and DOL programs receiving inconsistent causation determinations from the two agencies. However, DOE determined that nothing in the Act required that the same causation standard be used for both the program administered by DOL and the Part D program administered by DOE. Indeed, the Act itself sets forth different causation standards for the different programs. Furthermore, and as noted above, DOE intends to aggressively pursue the purposes of Part D. DOE believes as a policy matter that this objective can best be accomplished through DOE's adoption of the ``significant factor'' causation standard set forth in section 852.8 even thought it may differ from the standards that DOL is required by law to apply. In addition, regardless what standard DOE adopts, it is extremely unlikely that all applicants would receive identical causation determinations from both the DOL and DOE programs. The statutory language for the two agencies' programs is different, the two programs focus on entirely different benefit mechanisms (i.e., DOE's program under Part D focuses on assisting applicants obtain State workers' compensation benefits while the program administered by DOL focuses on direct federal payments to applicants), the programs are administered by two different federal agencies, and the Act requires that independent Physician Panels make the causation determinations for the applications submitted to DOE under the Part D program. DOE believes that rather than adopting a causation standard set forth in another part of the Act in a vain attempt to assure consistency in outcomes between the DOE and DOL programs, it should adopt the ``significant factor'' causation standard set forth in section 852.8. This standard is similar to the causation tests applied by many State workers' compensation programs and is appropriate for all the other reasons explained above. In short, DOE believes that the standard it has adopted is appropriate and properly carries out the intent of Part D, and that DOE should [[Page 52848]] not adopt a causation standard that attempts to mandate the same result for all applicants from both the DOE and DOL programs when perfect consistency in outcomes is extremely unlikely regardless of the causation standard DOE adopts. Section 852.8 further specifies that Physician Panels should use the ``at least as likely as not'' burden of proof when determining whether exposure to a toxic substance at a DOE facility during the course of employment by a DOE contractor was a significant factor in aggravating, contributing to or causing the illness or death of the worker at issue. The NOPR stated that a panel would make its determination based on ``whether there is sufficient information to support'' the applicant's requested finding; that language implied that panels should use a preponderance of the evidence burden of proof. The final rule adopted by DOE is more favorable to applicants in that it requires that they meet only an ``at least as likely as not'' burden of proof. The standard adopted today in section 852.8 is, DOE believes, very favorable to applicants while at the same time being consistent with the statutory language and good policy. DOE believes this standard will result in its being able to assist the largest number of deserving claimants consistent with the structure and statutory text of Part D. Q. What Materials Must a Physician Panel Review Prior to Making a Determination? Section 852.9 (proposed as section 852.8) stipulates that the Physician Panel must review all records relating to the application that are provided by the Program Office. Such records may include medical records, employment records, exposure records, an occupational history, workers' compensation records, pertinent medical literature or reports, and any other records or evidence pertaining to the applicant's request for assistance, including additional discretionary information submitted by the applicant or the employer. For a deceased worker, such records may include a Medical Examiner's or Coroner's report or a death certificate. For an applicant who has also submitted a claim to DOL under the Act, such records may include any available information submitted as a part of such a claim or developed by DOL or HHS in the course of processing such a claim, including estimates of an applicant's cumulative radiation dose and the calculated probability that the employee's illness or death was caused by that radiation dose. Proposed section 852.8 had stated that each Physician Panel should review all such records prior to making a determination. A commenter expressed an opinion that a Physician Panel must be required to review all relevant information, both supportive and non-supportive, and render a determination based on all of the information. DOE agrees that a fair and accurate adjudication of a claim is predicated on a Physician Panel reviewing all available information presented to it, and has accordingly changed ``should'' to ``must'' in section 852.9. Several commenters asked questions or made suggestions as to what role DOE should have in assisting the applicant in gathering information in support of an application, including a suggestion that an independent medical examination might help expedite the Physician Panel review by focusing on information relevant to determining compensability under State law. Commenters expressed the opinion that DOE should pay for the development of medical evidence in support of an application, and suggested that DOE should use the Former Worker Medical Surveillance Program to accelerate and enhance implementation of Part D. Part D does not authorize DOE to create a new program of examination and testing for applicants, nor does it authorize appropriations for this purpose. DOE believes that the Program Office's role is to assist an applicant in obtaining and assembling existing information relevant to a claim, including employment, exposure and medical information under the control of DOE and its contractors, information provided by the applicant, and information from outside sources whose transmittal to DOE has been authorized by the applicant. However, where it is able, DOE will assist applicants by providing to them and to the Physician Panel relevant information in DOE's control. DOE's Former Worker Medical Surveillance Program currently consists of pilot projects run by consortia of universities, unions and occupational health experts funded through cooperative agreements with DOE for the purpose of providing former DOE contractor employees with medical surveillance examinations directed at detecting potential work- related disorders. The Former Worker Medical Surveillance Program is distinct from the program authorized by Part D of the Act and administered by the Program Office. The Program Office intends to utilize information generated by the Former Worker Program projects in the following manner. First, the Program Office will utilize the projects' hazard surveys of DOE sites (know as ``Phase I/Needs Assessments'') as sources of occupational exposure information for use by the Physician Panels. Second, if an applicant has previously received a medical surveillance examination through a Former Worker Program project, the Program Office will ask the applicant to sign a release so that the Program Office can obtain the results of this examination. A commenter stated that in assisting the applicants seeking compensation from their State's workers compensation systems, DOE should make use of state-of-the-art analytical techniques to determine amounts of radionuclide body burdens that the applicants may have. As stated above, DOE is not funding further medical examinations of applicants under this program. However, HHS will be conducting radiation dose reconstructions for those applicants who have submitted a claim for cancer to DOL under Part A of EEOICPA and whose claim is not for compensation under provisions governing compensation for members of the Special Exposure Cohort. These dose reconstructions will evaluate and make use of existing information from DOE and other sources, including claimants, relevant to estimating the radiation doses incurred by cancer claimants in the performance of duty for DOE and it contractors. HHS will report the methods and results of these dose reconstructions to claimants, DOL and DOE. DOE intends to provide copies of these reports to the Physician Panels for radiation-related claims. In these cases, the applicant may also want to provide the Physician Panel with the probability of causation determination established by DOL based on the NIOSH dose reconstruction. R. How May a Physician Panel Obtain Additional Information or a Consultation That It Needs To Make a Determination? A Physician Panel may, on occasion, need additional information or consultations to make its determination. For expediency, documentation of evidence, maintenance of confidentiality, and records control, section 852.10 (proposed as section 852.9) requires the Physician Panel to make all requests for additional information through the Program Office. The panel may request an interview with the applicant, if the panel believes that only the applicant can supply the necessary information. Based upon the experiences of similar physician panels, including the Expert Panel of the [[Page 52849]] Fernald II Workers' Settlement Fund,\1\ it is anticipated that such a request will be unusual, but may be necessary in rare cases in order to obtain essential information. The panel can also request that the applicant provide additional medical information. The Physician Panel may request consultation with specialists in fields relevant to its deliberations, if needed, as provided for in section 3661(d)(4) of the Act, or refer to relevant medical and scientific literature. The Program Office will maintain a roster of available specialists for this purpose. --------------------------------------------------------------------------- \1\ The Fernald II Workers' Settlement Fund was established to settle a class action lawsuit by the employees of National Lead of Ohio (NLO), which operated the Feed Materials Production Center (Fernald) DOE facility from 1951 to 1985. A component of this settlement fund is an Expert Panel Review to determine the work relatedness of an illness claimed by an NLO employee as resulting from exposure to radioactive material or other toxins. The Expert Panel consists of three Occupational/Environmental Health physicians who have the option of interviewing a claimant, but rarely need such an interview to make a determination, relying in most cases on existing written records. --------------------------------------------------------------------------- New section 852.10(c) was added in the final regulations in order to codify within the rule a requirement of section 3661(d)(4) of the Act. Section 3661(d)(4) requires that, at the request of a Physician Panel, DOE or a DOE contractor who employed the DOE contractor employee must provide additional information relevant to the panel's deliberations. Under new section 852.10(c), a Physician Panel may also request additional information under the control of DOE or its contractors. It is anticipated that these will be important sources of information in many cases. One commenter expressed an opinion that a duty to produce the historical exposure records should be placed on the contractor, instead of placing it wholly on the Program Office. DOE notes that section 3661(d)(4) of the Act (42 U.S.C. 7385o(d)(4)) implicitly places this obligation on both DOE and on the DOE contractor. Section 852.10(c) permits a Physician Panel to request relevant information in control of DOE or its contractors. DOE intends that all relevant information should be provided to a Physician Panel whether in possession of DOE or its contractor, to the extent permitted by law. A commenter stated that requiring applicants to interview before a Physician Panel may result in a financial burden and physical hardship on applicants and stated that alternative methods of obtaining information should be explored. This commenter asked who will pay for any travel associated with an applicant's interview, if a panel requests such an interview. This commenter also asked whether a specialist will be paid, when consultation with a specialist is required, and what the rate of pay for specialists will be. DOE recognizes the hardships for the applicant associated with an interview, and anticipates that such an interview will only be required in those unusual instances when essential information is not available from any other source. When an interview with the applicant is required, the Program Office will strive to arrange such an interview at a time and place convenient to the applicant and consider alternatives (e.g., telephone interviews) to face to face meetings. As discussed previously, the applicant is responsible for developing the medical information upon which the applicant bases its claim, and therefore DOE is not responsible for paying for the development of new medical information. However, to the extent the Physician Panel requests a consultation with a specialist to discuss medical information already in its possession, DOE will pay the costs associated with this consultation. S. How Is a Physician Panel To Carry Out Its Deliberations and Arrive at a Determination? After each member of a Physician Panel reviews the information submitted to the panel, the panel members will discuss an application and arrive at a determination. Because it is anticipated that Physician Panels will be spread out geographically, section 852.11 (proposed as section 852.10) permits teleconferencing. This system has worked well for prior Physician Panels, such as the Expert Panel of the Fernald II Workers' Settlement Fund.\2\ --------------------------------------------------------------------------- \2\ Ibid. --------------------------------------------------------------------------- In the NOPR, DOE proposed that the panel members be required to reach a ``common'' determination. The NOPR did not explain what might happen if such a common or unanimous determination could not be reached. Some commenters objected to the requirement for panel unanimity, apparently on the ground that this could result in a single panel member defeating the will of the majority to make a causation determination in an applicant's favor. DOE has decided that a panel determination should require only a majority of the panel members approving that determination, and thus DOE had modified the text of section 852.11 accordingly. This approach will promote the purposes of the statute by enabling more deserving employees to receive favorable panel determinations. This approach also will promote efficient administration of the program by eliminating the problems that otherwise might arise with respect to a non-unanimous panel. Furthermore, allowing panel determinations to be based on a majority rather than a unanimous decision by the panel members better accommodates the inherent uncertainty of some medical and medical causation decisions, and ensures that applicants will receive a fair determination even in situations where, for whatever reason, the determination is not unanimous. T. How Must a Physician Panel Issue Its Determination? In order to ensure that a Physician Panel has made its determination based upon the relevant evidence and that it has provided the basis for its determination, section 852.12 (proposed as section 852.11) requires the Physician Panel to identify the materials it has reviewed in making its determination, and express the determination and its basis in a series of findings that logically links the evidence reviewed to the conclusions drawn. DOE anticipates that some covered workers who have applied for benefits under the DOL program will also apply for assistance from the Program Office in filing a claim with a State workers' compensation system. However, filing a claim under the DOL program is not a requirement for the DOE program. In addition, and as explained above, some applicants who submit applications in both the DOE and DOL programs may receive different causation determinations from the two agencies. For example, under the DOL program, a member of a Special Exposure Cohort, as defined in section 3621(14) of the Act (42 U.S.C. 7384l(14)), who has a specified cancer could establish entitlement to benefits for a specified cancer without showing that the disease is the result of exposure to a toxic substance because the statute dispenses with that requirement for Special Exposure Cohort members in the DOL program. A Physician Panel, however, can make a positive determination only if sufficient evidence is provided to meet the standard as specified in section 852.8. As to non-Special Cohort members in the DOL program, factual findings made by DOL, including findings based on dose reconstructions performed by HHS regarding the likelihood that cancer was caused by occupational exposure to radiation, while relevant to a panel's assessment, are not binding on a Physician Panel. A [[Page 52850]] Physician Panel would be expected to explain the extent to which it based its determination on the findings of any agency in its report to the Program Office. Proposed section 852.11(c)(4) in the NOPR required a Physician Panel, if explicitly requested by the Program Office, to provide the Program Office with a finding as to whether a specific criterion in a State Agreement has been satisfied. Three commenters asserted that Physician Panels should not be called upon to interpret State law. Another stated that State workers' compensation systems recognize and accept physicians' findings as to causality, and do not rely on physicians to make findings as to compensability. DOE agrees that the role of the Physician Panel is to make a determination as to the relationship between a claimed illness and exposures to a toxic substance at a DOE facility. Accordingly, the Physician Panel will not be required to provide a specific interpretation of a non-medical provision of a State workers' compensation system. However, if a State Agreement provides for a Physician Panel to make a determination concerning a medical issue in addition to causation and specifies the medical criteria to be applied, then panels will make such determinations in appropriate cases. For example, a State Agreement could set forth the State criteria for determining the extent of disability or impairment and provide for the Physician Panels to make determinations on these medical issues. However, the panel determinations with respect to such issues will not affect whether a ``positive'' or ``favorable'' determination is rendered for an applicant with all its attendant consequences under this program. Whether a positive or favorable determination is rendered is to be based solely on the standard and criteria set forth in section 852.8. U. When Must a Physician Panel Issue Its Determination? Section 852.13 (proposed as section 852.12) requires a Physician Panel to submit its determination to the Program Office within 30 working days of receiving the application materials, unless granted an extension by the Program Office, which then sets the new deadline. New section 852.13(b) further stipulates that, when a Physician Panel requests additional information or a consultation necessary to the panel's deliberations, the deadline for panel determination is extended to 15 working days after receipt of the requested information or the consultant's recommendations. A commenter stated that the rule should define the ``applicant's material'' and describe the Physician Panel's obligation if the ``applicant's material'' is deemed incomplete or otherwise inadequate for consideration. Because section 852.4 allows some discretion on the part of the applicant and the employer as to what materials are submitted, and because there will be a wide variation in the type and amount of information available from other sources, it is not possible to define precisely what the application materials will consist of, beyond the materials that the applicant is required to submit, as outlined in section 852.4. In those instances where the Physician Panel deems the application materials to be insufficient, the Physician Panel's obligations are defined in section 852.10, which requires the Physician Panel to request any additional information needed. New section 852.13 further requires a Physician Panel to issue a determination in a timely fashion after receiving additional requested information or a consultation with a specialist. V. What Precautions Must Each Physician Panel Member and Each Specialist Take in Order To Keep an Applicant's Personal and Medical Information Confidential? Because records for review by the Physician Panels and by medical specialists consulted at the request of these panels contain confidential, personal, and medical information, section 852.14 (proposed as section 852.13) is included to provide safeguards that Physician Panels and specialists must follow to preserve the confidentiality of this information. Physician Panel members and specialists are required to comply with all provisions of the Privacy Act of 1974 applicable to worker advocacy records, including maintaining paper records in locked cabinets and desks. Release of information to a third party is also barred, unless such release is authorized by the applicant. W. What Actions Must a Physician Panel Member Take if a Member of the Panel Has a Potential Conflict of Interest in Relation to a Specific Application Submitted to the Panel? In order to ensure objectivity and fairness, section 852.15 (proposed as section 852.14) requires each panel member to report to the Program Office any real or perceived conflict of interest with regard to a particular application to the Program Office, and to cease reviewing the application pending instruction by the Program Office. The Program Office will then take appropriate actions to remedy the situation, which generally will mean referring the application to a different Physician Panel. At least two Physician Panels will be designated to review applications submitted by employees of each DOE facility. A commenter suggested that the proposed section 852.14 did not go far enough in addressing potential conflicts of interest, and called for public disclosure of potential conflicts of interest. It is DOE's position that, in addition to the reporting requirements of section 852.15, adequate safeguards have been taken to avoid potential conflicts of interest because, among other things, the selection of Physician Panel members will be performed by HHS independently of DOE. X. When May the Program Office Ask a Physician Panel To Reexamine an Application That Has Undergone Prior Physician Panel Review? Section 852.16 (proposed as section 852.15) provides that the Program Office may refer a case for reexamination to the same panel or to a different panel, after the original panel has made a determination if: there is significant evidence contrary to the panel determination; the Program Office obtains new information the consideration of which would be reasonably likely to result in a different determination; the Program Office becomes aware of a real or potential conflict of interest on the part of a member of the original panel in relation to the application under review; or reexamination is necessary to ensure consistency among panels. Several commenters felt that the Program Office's review powers were too broad in the NOPR. DOE agrees that a Physician Panel determination should be accorded deference and DOE generally anticipates accepting a Physician Panel determination in favor of an applicant. The statute does, however, specifically contemplate review and discretion by the Program Office in determining whether to accept such a determination, in that the statute specifies that the Program Office shall accept such a finding unless there is ``significant evidence to the contrary.'' In the final rule, the discretion of the Program Office to ask a Physician Panel to reexamine an application has been delineated to balance these competing considerations. [[Page 52851]] Y. Must the Program Office Accept the Determination of a Physician Panel? Unless a reexamination is requested pursuant to section 852.16, section 852.17 (proposed as section 852.16) requires the Program Office to accept a Physician Panel's determination, except where the Program Office determines there is significant evidence contrary to the panel determination. The Program Office must notify the applicant and the employer, in a timely fashion, of its acceptance or rejection of a Physician Panel determination. Proposed section 852.16 required only the prompt notification of the applicant of a determination. In the final rule, notification is extended to the relevant DOE contractor employers because of the potential impact of the Program Office's determination on those parties. Z. Is There an Appeals Process? Section 852.18 (proposed as section 852.17) provides that an applicant may request DOE's Office of Hearings and Appeals (OHA) to review certain Program Office decisions. An applicant may appeal a decision by the Program Office not to submit an application to a Physician Panel, a negative determination by a Physician Panel that is accepted by the Program Office, and a final decision by the Program Office not to accept a Physician Panel determination in favor of an applicant. An applicant may not, however, appeal to OHA a Program Office decision to submit an application for reexamination pursuant to section 852.16. An applicant must file a notice of appeal with OHA on or before 30 days from the date of a letter from the Program Office notifying the applicant of a decision appealable under this section. OHA will consider appeals in accordance with its procedures set forth in 10 CFR Part 1003. A decision by OHA constitutes DOE's final determination with respect to an application. A commenter agreed that an applicant should have a right to appeal a determination not to submit the application to the Physician Panel, but expressed concern about the independence of OHA. OHA is an office within DOE. However, apart from being within the same agency, it is administratively and functionally independent of the Program Office. Although a decision by OHA constitutes DOE's final determination with respect to an application, it is not the final remedy for an applicant. Regardless of DOE's final determination on a claim, an applicant may still file a claim with the applicable State workers' compensation program. AA. What Is the Effect of the Acceptance by the Program Office of a Determination by a Physician Panel in Favor of an Applicant? Section 852.19 (proposed as section 852.18) sets forth the effect of acceptance by the Program Office of a determination by a Physician Panel in an applicant's favor. In the event the Program Office accepts such a determination by a Physician Panel, the Program Office must assist the applicant in filing a claim with the relevant State's workers' compensation system and cannot contest the claim or any award made regarding the health condition that was the subject of the Physician Panel determination in the applicant's favor. There were many comments regarding proposed section 852.18. Commenters expressed concerns about what actions DOE will take in order to ensure that claims based upon positive Physician Panel determination will not be contested by its contractors. Section 852.19 requires the Program Office to advise the cognizant Secretarial Officer to recommend to the relevant Contracting Officer that, to the extent permitted by law, the DOE contractor be directed not to contest the claim or award. Furthermore, any cost of contesting the claim or award is not an allowable cost under a DOE contract. All workers' compensation costs incurred as a result of an award on a claim based on the health condition that was the subject of a Physician Panel determination in favor of an applicant are allowable, reimbursable contract costs to the fullest extent permitted under a contract. This final provision of section 852.19 was added in final rulemaking in order to ensure that a DOE contractor who incurs additional workers' compensation award costs as a result of the rule is able to recover such costs from DOE. Part D only provides that DOE may direct its contractors not to contest a determination by a Physician Panel. It neither affects nor authorizes DOE to give directives to persons who are not DOE contractors. Thus, it will not affect persons who have no privity of contract with DOE, such as insurers. Likewise, it will not affect persons who lease DOE facilities for commercial purposes. While leases may be considered contracts, they typically have no provisions that would permit DOE to direct a lessee not to contest a workers' compensation claim or that would require DOE to reimburse the lessee for a workers' compensation claim. In addition, DOE may direct its contractors not to contest a determination by a Physician Panel only to the extent permitted by law. Thus, DOE cannot direct a contractor to take action that would violate the contractor's obligations under a State workers' compensation system or other legal obligations such as a contractual obligation to an insurer. Part D further provides that, in the case of a Physician Panel determination in an applicant's favor that has been accepted by the Program Office, DOE must assist an applicant in filing a claim under the appropriate State workers' compensation system. DOE notes that there is nothing in Part D of the Act requiring an applicant to file a claim after the Program Office accepts a positive Physician Panel determination. The applicant is responsible for evaluating the merits of filing a claim. If an applicant elects to seek relief under a State workers' compensation Program, Part D places an obligation upon DOE to assist the applicant in filing a claim. This assistance will include the provision of the determination and other information developed by a Physician Panel. It will not include representation or other such assistance after the filing of a claim with a State workers' compensation system. A commenter stated that even when causation has been established, there is still a disability determination that needs to be made under the State workers' compensation system. DOE believes that all such determinations should be made in the normal course of the operation of State workers' compensation statutes and administrative procedures. A commenter was concerned that costs associated with a disability determination would not be allowable. DOE has concluded that the disallowance of costs associated with contesting a claim that has been the subject of a Physician Panel determination in an applicant's favor pertains to all costs of supporting arguments or activities with the intent or effect of delaying or defeating a claimant's ability to recover State workers' compensation benefits for the health condition for which the applicant has received a final favorable Physician Panel determination. This obviously applies not only to ``contesting'' claims before the relevant State workers'' compensation authority, but also to ``contesting'' such claims on appeal or in any other administrative or judicial forum. Subsequent employer costs are allowable to the extent that, and if consistent with the contractor's contract with DOE, under the applicable State workers' compensation statutes, it is customary for the employer to take an [[Page 52852]] active role in settling issues related to the claim, such as the extent of injury, allocation of liability among multiple employers, or calculation of actual benefits, but only to the extent such activities do not have the intent or effect of delaying or defeating a claimant's ability to recover workers' compensation benefits. If a State Agreement provides for a Physician Panel to determine a State-specific medical issue such as the degree of disability or impairment, DOE may direct a contractor not to contest that determination in a State proceeding and may not reimburse costs incurred in contesting such a determination. A commenter noted that this program will result in increased workers' compensation premiums to its contractors, and that additional workers' compensation claims will affect a contractor's State experience rating as a result of its workers' compensation experience. To the extent premium increases do occur or experience ratings are adversely affected, those effects are the necessary results of the Program established by Congress under Part D. BB. General Comments on the NOPR A number of workers, former workers, their survivors and representatives had general comments on the NOPR without specific reference to a particular section. A number of commenters stated that the affected workers had endured exposure to many hazards, and deserved a program of real assistance. Two commenters noted the patriotism of these workers. A number of commenters felt that the rule, as proposed, was not assisting sick workers, as intended by the Act. In this notice of final rulemaking, DOE has carefully considered the major issues emerging from the comments on the NOPR, and believes that the final rule has addressed those issues. DOE believes that the final rule goes as far as the Act authorizes DOE to go in providing assistance. A commenter expressed concern about the status of applications for Physician Panel review already received under this Act. The commenter wanted to know if these filings are null and void, pending negotiation of the State Agreements. DOE will retain and act on these filings when the administrative machinery is in place to process them. Under the Act, the promulgation of this rule is the necessary first step in that endeavor. The establishment of State Agreements can now begin. That in turn will allow DOE to begin processing these claims. A commenter asked for clarification on how DOE will respond to cases where State has already considered and denied a workers' compensation claim for the same or related health condition that will be the basis for the applicants claim under the Part D program. The Program Office will process these claims in the same manner as other claims. It must be noted, however, that the Act does not change the normal operation of any State workers' compensation system, and does not create any new grounds for re-opening any decision already rendered under State law. III. Regulatory Review and Procedural Requirements A. Review Under Executive Order 12866 Today's regulatory action has been determined to be ``a significant regulatory action'' under Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB). B. Review Under the Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. The rule would provide guidelines for the operation and determinations of Physician Panels established to provide expert opinion to DOE on the cause of a worker's illness or death. It would not impose costs or burdens on any small business or other small entity. DOE, therefore, certifies that the rule will not have a significant economic impact on a substantial number of small entities. C. Review Under the Paperwork Reduction Act The rule provides that an individual may submit an application for review and assistance to the Program Office that contains information relating to the individual's employment by a DOE contractor, the nature of the illness or death, and the relationship between the illness or death and the individual's employment at a DOE facility. The application is required for DOE to determine whether reasonable evidence exists for submitting the individual's application to a Physician Panel. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection has been reviewed and assigned a control number by OMB. DOE submitted the proposed collection of information in the rule to OMB, simultaneously with the publication of the NOPR for review and approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. OMB has approved the collection of information in the rule and assigned it control number 1910. D. Review Under the National Environmental Policy Act DOE has concluded that promulgation of the rule falls into a class of actions that would not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Specifically, the rule deals only with Physician Panel procedures, and, therefore, is covered under the Categorical Exclusion for rulemakings that are strictly procedural in paragraph A6 of Appendix A to subpart D, 10 CFR part 1021. Accordingly, neither an environmental assessment nor an environmental impact statement is required. E. Review Under Executive Order 13132 Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999), imposes certain requirements on Agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to develop an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have ``federalism implications.'' Policies that have federalism implications are defined in the Executive Order to include regulations that have ``substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.'' On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined today's rule and has determined that it does not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. The scope of the rule is limited to defining how a Physician Panel established under the Act will determine whether the illness [[Page 52853]] or death that is the subject of an application for assistance in filing a claim under a State's workers' compensation system arose out of and in the course of employment by DOE and exposure to a toxic substance at a DOE facility. Referral of an application to a Physician Panel can occur only by agreement with the applicable State. The rule would leave to the State the determination of benefits. Thus, the rule would not preempt State workers' compensation law. No further action is required by Executive Order 13132. F. Review Under Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, ``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on Federal Agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear, legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear, legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the rule meets the relevant standards of Executive Order 12988. G. Review Under the Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104- 4) requires each Federal Agency to prepare a written assessment of the effects of any Federal mandate in a proposed or final rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in any single year. The Act also requires a Federal Agency to develop an effective process to permit timely input by elected officers of State, local, and tribal governments on a proposed ``significant intergovernmental mandate,'' and it requires an Agency to develop a plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirement that might significantly or uniquely affect small governments. The rule published today does not contain any Federal mandate, so these requirements do not apply. H. Review Under the Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal Agencies to issue a Family Policymaking Assessment for any proposed rule or policy that may affect family well-being. The rulemaking would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has not prepared a Family Policymaking Assessment. I. Review Under Executive Order 13211 Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A ``significant energy action'' is defined as any action by an agency that promulgates or is expected to lead to the promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA, as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits energy supply, distribution, and use. Today's rule is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects. J. Congressional Notification As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding issuance of today's final rule prior to the effective date set forth at the outset of this notice. The report will state that it has been determined that the rule is not a ``major rule'' as defined by 5 U.S.C. 801(2). List of Subjects in 10 CFR Part 852 Administrative practice and procedure, Government contracts, Hazardous substances, Workers' compensation. Issued in Washington, DC, on August 7, 2002. Beverly A. Cook, Assistant Secretary for Environment, Safety and Health. For the reasons stated in the preamble, DOE hereby amends Chapter III of title 10 of the Code of Federal Regulations by adding part 852 to read as follows: PART 852--GUIDELINES FOR PHYSICIAN PANEL DETERMINATIONS ON WORKER REQUESTS FOR ASSISTANCE IN FILING FOR STATE WORKERS' COMPENSATION BENEFITS Sec. 852.1 What is the purpose and scope of this part? 852.2 What are the definitions of terms used in this part? 852.3 How does an individual obtain and submit an application for review and assistance? 852.4 What information and materials does an individual submit as a part of the application for review and assistance? 852.5 What information and materials may an employer submit in response to a submission of an application to a Physician Panel? 852.6 Which applications are submitted to a Physician Panel? 852.7 What provisions are set forth in State Agreements? 852.8 How does a Physician Panel determine whether an illness or death arose out of and in the course of employment by a DOE contractor and exposure to a toxic substance at a DOE facility? 852.9 What materials must a Physician Panel review prior to making a determination? 852.10 How may a Physician Panel obtain additional information or a consultation that it needs to make a determination? 852.11 How is a Physician Panel to carry out its deliberations and arrive at a determination? 852.12 How must a Physician Panel issue its determination? 852.13 When must a Physician Panel issue its determination? 852.14 What precautions must each Physician Panel member and each specialist take in order to keep an applicant's personal and medical information confidential? 852.15 What actions must a Physician Panel member take if that member has a [[Page 52854]] potential conflict of interest in relation to a specific application? 852.16 When may the Program Office ask a Physician Panel to reexamine an application that has undergone prior Physician Panel review? 852.17 Must the Program Office accept the determination of a Physician Panel? 852.18 Is there an appeals process? 852.19 What is the effect of the acceptance by the Program Office of a determination by a Physician Panel in favor of an applicant? Authority: 42 U.S.C. 7384, et seq.; 42 U.S.C. 2201 and 7101, et seq.; 50 U.S.C. 2401 et seq. Sec. 852.1 What is the purpose and scope of this part? (a) This part implements Part D of the Act by establishing the procedures under which: (1) An individual may obtain and submit an application to the Program Office for review and assistance; (2) The Program Office processes and submits eligible applications to a Physician Panel; (3) Physician Panels determine whether the illness or death of a DOE contractor employee arose out of and in the course of employment by a DOE contractor and through exposure to a toxic substance at a DOE facility; (4) The Program Office processes a determination by a Physician Panel; and, (5) Appeals may be undertaken. (b) This part covers applications filed by or on behalf of a DOE contractor employee, or a deceased employee's estate or survivor, with respect to an illness or death of a DOE contractor employee that may have been caused by exposure to a toxic substance during the course of employment at a DOE facility. (c) All actions under this part must be pursuant to the relevant State Agreement and consistent with its terms and conditions. Sec. 852.2 What are the definitions of terms used in this part? Act means the Energy Employees Occupational Illness Compensation Program Act of 2000, 42 U.S.C. 7384 et seq. Applicant means an individual seeking assistance from the Program Office in filing a claim with the relevant State workers' compensation system, including but not limited to, a living DOE contractor employee, the estate of a deceased DOE contractor employee, or any survivor of a deceased DOE contractor employee who is eligible to apply for a death benefit or a survivor's benefit under the State workers' compensation system for which the applicant is seeking assistance in filing a claim. DOE means the U.S. Department of Energy, and its predecessor agencies, including the Manhattan Engineering District, the Atomic Energy Commission, and the Energy Research and Development Administration. DOE contractor employee means any of the following: (a) An individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months. (b) An individual who is or was employed at a DOE facility by (i) An entity that contracted with DOE to provide management and operation, management and integration, or environmental remediation at the facility; or (ii) A contractor or subcontractor that provided services, including construction and maintenance, at the facility. DOE 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 DOE (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 DOE 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. Physician panel means a group of three physicians appointed by the Secretary of Health and Human Services, pursuant to Part D of the Act, to evaluate potential claims of DOE contractor employees under the appropriate State workers' compensation system. Program office means the Office of Worker Advocacy within DOE's Office of Environment, Safety and Health, or any other DOE office subsequently assigned to perform the functions of the Secretary of Energy under Part D of the Act. State agreement means an agreement negotiated between DOE and a State that sets forth the terms and conditions for dealing with an application for assistance under Part D of the Act in filing a claim with the State's workers' compensation system. Toxic substance means any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature. Sec. 852.3 How does an individual obtain and submit an application for review and assistance? (a) An individual obtains an application for review and assistance: (1) In person from the Program Office, from any of the Resources Centers listed in Appendix A to this section, or from any DOE-sponsored Former Worker Program project; (2) Through a written request mailed to Assistant Secretary, Office of Environment, Safety and Health, Office of Worker Advocacy, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585. or to any other address that DOE may subsequently publish by notice in the Federal Register; (3) Through telephone request to 1-877-447-9756 or to any other telephone number that DOE may subsequently publish by notice in the Federal Register; or (4) In printable format, from the Program Office's Web site at http://tis.eh.doe.gov/advocacy/ or from any other Web site that DOE may subsequently publish by notice in the Federal Register. (b) An individual submits an application for review and assistance-- (1) In person to the Program Office, to any Resource Center, or to any DOE-sponsored Former Worker Program project. (2) By mail to the Program Office at the address identified in paragraph (a)(2) of this section, or to any other address that DOE may subsequently publish by notice in the Federal Register. Sec. 852.4 What information and materials does an individual submit as a part of the application for review and assistance? (a) As a part of the application for review and assistance, an individual must submit, in writing: (1) Any application forms required by the Program Office. (2) The name and address of any licensed physician who is the source of a diagnosis based upon documented medical information that the employee has or had an illness and that the illness may have resulted from exposure to a toxic substance while the employee was employed at a DOE facility and, to the extent practicable, a copy of the diagnosis and a summary of the information upon which the diagnosis is based. (3) A signed medical release, authorizing non-DOE sources of medical information to provide the Program Office with any diagnosis, medical opinion and medical records documenting the diagnosis or opinion [[Page 52855]] that the employee has or had an illness and that the illness may have resulted from exposure to a toxic substance while the employee was employed at a DOE facility. (4) To the extent practicable and appropriate, an occupational history obtained by a physician, an occupational health professional, or a DOE-sponsored Former Worker Program. (If such an occupational history is not reasonably available and is deemed by the Program Office to be needed for the fair adjudication of the claim, then the Program Office will assist the applicant in obtaining this history.) (5) Any other information or materials deemed by the Program Office to be necessary to provide reasonable evidence that the employee has or had an illness that may have arisen from exposure to a toxic substance while employed at a DOE facility. (b) The applicant may also submit directly to the Program Office any other information or materials providing evidence that the employee has or had an illness that may have resulted from exposure to a toxic substance during the course of employment at a DOE facility. (c) The applicant must sign an affidavit attesting to the authenticity and completeness of any information or materials submitted to the Program Office, or provide the Program Office with other evidence of authenticity of submitted materials, such as certification of submitted copies of originals. Sec. 852.5 What information and materials may an employer submit in response to a submission of an application to a Physician Panel? (a) Upon receipt of an application and the Program Office's determination that the application meets the requirements of Sec. 852.4, the Program Office must notify each of the applicant's relevant DOE contractor employers in writing of: (1) The existence of the application; (2) The name of the employee; (3) The diagnosis claimed; and (4) The likely date of onset or date of diagnosis, if known. (b) The employer has 15 working days from receipt of this notification to submit to the Program Office any information deemed by the employer to be relevant to either the Program Office's determination of whether to refer an application to a Physician Panel, or to adjudication of the application by a Physician Panel. (c) The employer must sign an affidavit attesting to the authenticity and completeness of any information provided to the Program Office under this section, or provide the Program Office with other evidence of authenticity of submitted materials, such as certification of submitted copies of originals. Sec. 852.6 Which applications are submitted to a Physician Panel? (a) The Program Office must submit an application and any information submitted under Sec. 852.5 of this part to a Physician Panel if there is reasonable evidence to make an initial determination that: (1) The application was filed by or on behalf of a DOE contractor employee or a deceased DOE contractor employee's estate or survivor; (2) The illness or death of the DOE contractor employee may have been caused by exposure to a toxic substance; and, (3) The illness or death of the DOE contractor employee may have been related to employment at a DOE facility. (b) The Program Office must promptly notify the applicant in writing of an initial determination under this section. Sec. 852.7 What provisions are set forth in State Agreements? DOE may not execute a State Agreement that does not contain the following provisions: (a) A statement that an application is submitted to a Physician Panel only if the application satisfies the criteria in Sec. 852.6 of this part: (1) The application was filed by or on behalf of a DOE contractor employee or a deceased DOE contractor employee's estate or survivor; (2) The illness or death of the DOE contractor employee may have been caused by exposure to a toxic substance; and (3) The illness or death of the DOE contractor employee may have been related to employment at a DOE facility. (b) An agreement that a Physician Panel must apply the standards set forth in Sec. 852.8 of this part when making a determination that an illness or death arose from exposure to a toxic substance during the course of employment at a DOE facility; (c) An agreement that the Program Office must provide assistance to only those applicants with a positive determination from the Physician Panel; and (d) An agreement that a positive determination by the Physician Panel has no effect on the scope of State workers' compensation proceedings, the conditions for compensation, or the rights and obligations of the participants in the proceeding; provided that consistent with Part D of the Act such a determination will prevent DOE and may prevent a DOE contractor from contesting an applicant's workers' compensation claim. Sec. 852.8 How does a Physician Panel determine whether an illness or death arose out of and in the course of employment by a DOE contractor and exposure to a toxic substance at a DOE facility? A Physician Panel must determine whether the illness or death arose out of and in the course of employment by a DOE contractor and exposure to a toxic substance at a DOE facility on the basis of whether it is at least as likely as not that exposure to a toxic substance at a DOE facility during the course of employment by a DOE contractor was a significant factor in aggravating, contributing to or causing the illness or death of the worker at issue. Sec. 852.9 What materials must a Physician Panel review prior to making a determination? The Physician Panel must review all records relating to the application that are provided by the Program Office, including but not limited to: (a) Medical records; (b) Employment records; (c) Exposure records; (d) Occupational history; (e) Workers' compensation records; (f) Medical literature or reports; (g) Any other records or evidence pertaining to the applicant's request for assistance; (h) A medical examiner's report, coroner's report, or death certificate for any application submitted by an estate or survivor of a deceased worker; and (i) Information submitted as a part of such a claim or developed by the Department of Labor (DOL) or by the Department of Health and Human Services (HHS) in the course of processing a claim for the applicant, including, where applicable, estimates of an applicant's cumulative radiation dose and the calculated probability that this dose was responsible for a cancer that is the subject of the claim, for any application submitted by an applicant also applying to DOL for benefits available under the Act. Sec. 852.10 How may a Physician Panel obtain additional information or a consultation that it needs to make a determination? If, after reviewing all materials provided by the Program Office, a Physician Panel finds that it needs additional information or consultation with a specialist in order to make a determination, it must request this information or consultation through the Program Office. A Physician Panel may request: [[Page 52856]] (a) A recorded interview under oath with the applicant, by an individual designated by the Program Office, if the Physician Panel believes only the applicant can provide the necessary information. (b) That the applicant provide additional medical information; (c) Additional relevant information under the control of DOE or its contractors; (d) Consultation with designated specialists in fields relevant to its deliberations; (e) Specific articles or reports, or assistance searching the medical or scientific literature; or (f) Other needed information or materials. Sec. 852.11 How is a Physician Panel to carry out its deliberations and arrive at a determination? (a) Each panel member reviews all materials relating to the application. (b) All panel members meet in conference, in person, or by teleconference in order to discuss the application and arrive at a determination agreed to by a majority of the members of the Physician Panel. Sec. 852.12 How must a Physician Panel issue its determination? A Physician Panel must submit its determination under Sec. 852.8 and the findings that provide the basis for its determination to the Program Office. The determination and the findings must be in writing and signed by all panel members. The findings must include: (a) Each illness or cause of death that is the subject of the application. (b) For each illness or cause of death listed under paragraph (a) of this section: (1) Diagnosis; (2) Approximate date of onset; (3) Date of death, if applicable; (4) Whether the illness or death arose out of and in the course of employment by a DOE contractor and exposure to a toxic substance at a DOE facility; (5) The basis for the determination under paragraph (b)(4) of this section; (6) A determination concerning any other medical issue identified in the relevant State Agreement; and (7) The basis for the determination under paragraph (b)(6) of this section. (c) The Physician Panel must provide the Program Office with: (1) Any evidence to the contrary of the panel's determination, and why the panel finds this evidence is not persuasive. (2) A listing of information and materials reviewed by the panel in making its determination, including: (i) Information and materials provided by the Program Office; and, (ii) Information and materials obtained by the panel, including consultations with specialists, scientific articles, and the record of any interview with an applicant. (3) Any other information the panel concludes that the Program Office should have in order to understand the panel's deliberations and determination. Sec. 852.13 When must a Physician Panel issue its determination? (a) A Physician Panel must submit its determination and findings to the Program Office within 30 working days of the time that panel members have received the complete application for review from the Program Office. (b) The Program Office may extend the deadline for a panel determination under the following circumstances: (1) The Physician Panel indicates to the Program Office that it needs additional information or a consultation in order to carry out its deliberations, as provided for in Sec. 852.10. In this case, the panel's determination is due 15 working days after receipt of the additional information (or notice from the Program Office that the requested information is unavailable), or 15 working days after receiving the consultant's recommendations, whichever is applicable; or (2) The Physician Panel has requested and the Program Office has granted an extension. (c) If an extension is granted pursuant to section 852.13(b)(2), the Program Office will specify the new deadline. Sec. 852.14 What precautions must each Physician Panel member and each specialist take in order to keep an applicant's personal and medical information confidential? In order to maintain the confidentiality of an applicant's personal and medical information, each Physician Panel member and each specialist consulted at the request of a Physician Panel must take the following precautions: (a) Maintain the confidentiality of applicant records, keep them in a secure, locked location, and, upon completion of panel deliberations, follow the instructions of the Program Office with regard to the disposal or temporary retention of these records; (b) Conduct all case reviews and conferences in private, in such a fashion as to prevent the disclosure of personal applicant information to any individual who has not been authorized to access this information; (c) Release no information to a third party, unless authorized to do so in writing by the applicant; and (d) Adhere to the provisions of the Privacy Act of 1974 regarding Worker Advocacy Records. Sec. 852.15 What actions must a Physician Panel member take if that member has a potential conflict of interest in relation to a specific application? (a) If a panel member has a past or present relationship with an applicant, an applicant's employer, or an interested third party that may affect the panel member's ability to objectively review the application, or that may create the appearance of a conflict of interest, then that panel member must immediately: (1) Cease review of the application; and (2) Notify the Program Office and await further instruction from the Office. (b) The Program Office must then take such action as is necessary to assure an objective review of the application. Sec. 852.16 When may the Program Office ask a Physician Panel to reexamine an application that has undergone prior Physician Panel review? The Program Office may direct the original Physician Panel or a different Physician Panel to reexamine an application that has undergone prior Physician Panel review if: (a) There is significant evidence contrary to the panel determination; (b) The Program Office obtains new information the consideration of which would be reasonably likely to result in a different determination; (c) The Program Office becomes aware of a real or potential conflict of interest of a member of the original panel in relation to the application under review; or (d) Reexamination is necessary to ensure consistency among panels. Sec. 852.17 Must the Program Office accept the determination of a Physician Panel? (a) Subject to the ability of the Program Office to direct a reexamination pursuant to Sec. 852.16, the Program Office must accept the determination by the Physician Panel unless the Program Office determines there is significant evidence contrary to the panel determination. (b) The Program Office must promptly notify an applicant and the relevant DOE contractor(s) of its acceptance or rejection of a determination by a Physician Panel. [[Page 52857]] Sec. 852.18 Is there an appeals process? (a) An applicant may request DOE's Office of Hearings and Appeals (OHA) to review: (1) A decision by the Program Office not to submit an application to a Physician Panel; (2) A negative determination by a Physician Panel that is accepted by the Program Office; and (3) A final decision by the Program Office not to accept a determination in the applicant's favor by a Physician Panel. (b) An applicant must file a notice of appeal with OHA on or before 30 days from the date of a letter from the Program Office notifying the applicant of a determination appealable under this section. (c) An appeal under this section is subject to the procedures of OHA in 10 CFR Part 1003. (d) A decision by OHA constitutes DOE's final determination with respect to an application. Sec. 852.19 What is the effect of the acceptance by the Program Office of a determination by a Physician Panel in favor of an applicant? In the event the Program Office accepts a determination by a Physician Panel in favor of an applicant: (a) The Program Office must assist the applicant in filing a claim with the relevant State's workers' compensation system by providing the determination and other information provided to the Program Office by a Physician Panel pursuant toSec. 852.12 of this part; (b) The Program Office may not contest the determination; (c) The Program Office must advise the cognizant DOE Secretarial Officer to recommend to the Contracting Officer (CO) for a DOE contractor that, to the extent permitted by law, the CO direct the contractor not to contest an applicant's workers' compensation claim or award in any administrative or judicial forum with respect to the same health condition for which the applicant received a favorable final Physician Panel determination; (d) Any costs of contesting a claim or award identified in paragraph (c) of this section--that is, any costs of supporting arguments or activities with the intent or effect of delaying or defeating such a claim or award--are not allowable costs under a DOE contract; and, (e) All workers' compensation costs incurred as a result of a workers' compensation award on a claim based on the same health condition that was the subject of a positive Physician Panel determination are allowable, reimbursable contract costs to the full extent permitted under the DOE contractor's contract with DOE. [FR Doc. 02-20459 Filed 8-13-02; 8:45 am] BILLING CODE 6450-01-P ***************************************************************** 30 Hanford: DOE submits cleanup plan This story was published Wed, Aug 14, 2002 By the Herald staff The Department of Energy sent its nationwide accelerated cleanup proposal to the federal Office of Management and Budget on Tuesday. DOE already has asked Congress for $5.9 billion for cleanup programs in 2003. However, the accelerated cleanup plan will determine how another $1.1 billion is supposed to be divided among DOE's individual sites, including Hanford. Copyright 2002 Tri-City Herald. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. ***************************************************************** 31 Idaho National Lab to be Nuclear R Center [http://ens-news.com IDAHO FALLS, Idaho, July 15, 2002 (ENS) - Signalling the Bush administration's emphasis on developing the next generation of nuclear power, the Idaho National Environmental and Engineering Laboratory (INEEL) has been reassigned from the Department of Energy's Environmental Management Department to the Office of Nuclear Energy, Science and Technology. In a speech to employees today at INEEL, Energy Secretary Spencer Abraham announced the lab's mission realignment. It will become a center of nuclear energy research and development involved with project such as Generation IV nuclear energy systems and advanced, proliferation resistant fuel cycle technology and transmutation technologies. "INEEL will be the epicenter of our efforts to expand nuclear energy as a reliable, affordable and clean energy source for our nation's energy future," said Abraham. "While environmental cleanup remains a priority for us at Idaho, the importance of advanced, safe nuclear energy for the future demands that we return the Idaho labs to their core mission of nuclear technology research, development and demonstration," Abraham said. INEEL will receive an additional $5 million in funding to "jump-start" the transition. Over the past 50 years, INEEL and Argonne National Laboratory-West have designed, constructed and operated more than 50 reactors at the site. Now, the Idaho labs will provide key support to the expanding international Generation IV initiative to develop technologies that "achieve safety performance, waste reduction, and proliferation resistance while providing a nuclear energy option that is economically competitive and ready for deployment before 2030," according to an INEEL statement. Over the next decade, the most promising technologies will be explored until preferred concepts are ready for testing. Argonne and INEEL plan to have one or more reactor designs certified by 2030, in time to replace reactors built in this country during the 1970s and 1980s. Internationally, the two labs have organized meetings of the Generation IV International Forum. Eight countries have so far joined the United States: the United Kingdom, France, Japan, Canada, Argentina, Republic of Korea, Republic of South Africa, and Brazil. Generation IV nuclear energy systems would follow three other distinct periods of reactor development. Generation I experimental reactors were developed in the 1950s and 1960s. Generation II large, central-station nuclear power reactors, such as the 104 plants still operating in the United States, were built in the 1970s and 1980s. Generation III advanced light-water reactors were built in the 1990s primarily in East Asia to meet that region's expanding electricity needs. Copyright Environment News Service (ENS) 2002. All Rights ***************************************************************** 32 Faster Cleanup of Savannah Nuclear Site Funded WASHINGTON, DC, July 15, 2002 (ENS) - Two federal agencies and the state of South Carolina have developed a plan to accelerate cleanup of nuclear waste at South Carolina's Savannah River Site by 2025. The Department of Energy, the Environmental Protection Agency and state of South Carolina officials have agreed to explore alternatives for material managed as high-level waste and spent nuclear fuel and have earmarked $216 million in additional funds to clean the site more quickly than previously planned. Established in 1950 by the Atomic Energy Commission, Savannah River Site has been involved in the production of tritium and plutonium for nuclear weapons. The site occupies about 310 square miles 12 miles south of Aiken, South Carolina on the Savannah River which forms the boundary between South Carolina and Georgia. The site’s 515 waste units range in size from a few cubic feet of soil to tens of acres, and waste types include solid waste, radioactive waste, hazardous waste, and mixed waste - a mixture of hazardous and radioactive waste. An assessment of the human health and environmental risks associated with the waste site is a factor in determining its cleanup priority. Among the hazardous radioactive materials at the Savannah River Site are 38 million gallons of high-level liquid radioactive waste generated from weapons material production during the Cold War stored in 49 underground carbon-steel waste tanks. The agencies will work towards identification of "innovative approaches" and technologies that will "address environmental risk in a more effective manner than traditional approaches, using regulatory flexibility where appropriate to facilitate success," according to a statement by the Department of Energy Friday. They will accelerate shipments of transuranic waste from Savannah River to the Waste Isolation Pilot Plant (WIPP), a government permanent repository in Carlsbad, New Mexico. Transuranic waste consists of clothing, tools, rags, residues, and debris contaminated with radioactive elements with atomic numbers greater than uranium - mostly trace amounts of plutonium. About 11,000 cubic meters of this waste is stored in culverts, drums and large containers at Savannah River. SRS made four shipments to WIPP in fiscal year 2001. The numbers of shipments were planned to increase to 12 per year in fiscal year 2002 and peak out at 120 per year in 2023. That schedule will now be accelerated. The agreement will allow for "innovative treatment of groundwater" where new approaches can be demonstrated to be more effective than conventional remedies. This agreement was reached under the Department's Environmental Management Accelerated Cleanup Program whose goal is to streamline operations by working with states and regulators to clearly target and reduce the greatest health and environmental cleanup risks at the country's nuclear weapons production facilities. The Energy Department has already signed similar Letters of Intent with the Hanford and Oak Ridge Nuclear Sites, Idaho National Engineering and Environmental Laboratory, Nevada Test Site, and Sandia and Los Alamos National Laboratories. Copyright Environment News Service (ENS) 2002. All Rights Reserved. ***************************************************************** NOTE: In accordance with Title 17 U.S.C. section 107 this material is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: *****************************************************************