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5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 10-2009, 74 FR 58834.
71 FR 78534, Dec. 29, 2006, unless otherwise noted.
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Subscribe to: 20 CFR Part 30 Subpart C - Eligibility Criteria for Claims Relating to Covered Beryllium Illness Under Part B of EEOICPA
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To establish eligibility for benefits under this section, the claimant must establish the criteria set forth in both paragraphs (a) and (b) of this section:
(a) The employee is a covered beryllium employee only if the criteria in paragraphs (a)(1) and (a)(3) of this section, or (a)(2) and (a)(3) of this section, are established:
(1) The employee is a “current or former employee as defined in 5 U.S.C. 8101(1)” (see § 30.5(u)) who may have been exposed to beryllium at a DOE facility or at a facility owned, operated or occupied by a beryllium vendor; or
(2) The employee is a current or former civilian employee of:
(i) Any entity that contracted with the DOE to provide management and operation, management and integration, or environmental remediation of a DOE facility; or
(ii) Any contractor or subcontractor that provided services, including construction and maintenance, at such a facility; or
(iii) A beryllium vendor, or of a contractor or subcontractor of a beryllium vendor, during a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the DOE, including periods during which environmental remediation of a vendor's facility was undertaken pursuant to a contract between the vendor and DOE; and
(3) The civilian employee was exposed to beryllium in the performance of duty by establishing that he or she was, during a period when beryllium dust, particles, or vapor may have been present at such a facility:
(i) Employed at a DOE facility (as defined in § 30.5(y)); or
(ii) Present at a DOE facility, or at a facility owned, operated, or occupied by a beryllium vendor, because of his or her employment by the United States, a beryllium vendor, a contractor or subcontractor of a beryllium vendor, or a contractor or subcontractor of the DOE. Under this paragraph, exposure to beryllium in the performance of duty can be established whether or not the beryllium that may have been present at such facility was produced or processed for sale to, or use by, DOE.
(b) The employee has one of the following:
(1) Beryllium sensitivity as established by either:
(i) An abnormal beryllium LPT performed on either blood or lung lavage cells; or
(ii) Three borderline beryllium LPTs performed on blood cells over a period of 3 years.
(2) Established chronic beryllium disease.
(3) Any injury, illness, impairment, or disability sustained as a consequence of the conditions specified in paragraphs (b)(1) and (2) of this section.
[71 FR 78534, Dec. 29, 2006, as amended at 84 FR 3048, Feb. 8, 2019; 89 FR 57731, July 16, 2024]
(a) Proof of employment or physical presence at a DOE facility, or a beryllium vendor facility as defined in § 30.5(j), because of employment by the United States, a beryllium vendor, or a contractor or subcontractor of a beryllium vendor during a period when beryllium dust, particles or vapor may have been present at such facility, may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was employed or present at a covered facility and the time period of such employment or presence.
(b) If the evidence shows that exposure occurred while the employee was employed or present at a facility during a time frame that is outside the relevant time frame indicated for that facility, OWCP may request that DOE provide additional information on the facility. OWCP will determine whether the evidence of record supports enlarging the relevant time frame for that facility.
(c) If the evidence shows that exposure occurred while the employee was employed or present at a facility that would have to be designated by DOE as a beryllium vendor under section 7384m of the Act to be a covered facility, and that the facility has not been so designated, OWCP will deny the claim on the ground that the facility is not a covered facility.
(d) Records from the following sources may be considered as evidence for purposes of establishing employment or presence at a covered facility:
(1) Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.
(2) Records or documents created by any vendor, processor, or producer of beryllium or related products designated as a beryllium vendor by the DOE in accordance with section 7384m of the Act.
(3) Records or documents created as a by product of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE.
[71 FR 78534, Dec. 29, 2006, as amended at 84 FR 3048, Feb. 8, 2019]
(a) Written medical documentation is required in all cases to prove that the employee developed a covered beryllium illness. Proof that the employee developed a covered beryllium illness must be made by using the procedures outlined in paragraph (b), (c), (d) or (e) of this section.
(b) Beryllium sensitivity or sensitization is established with either:
(1) An abnormal beryllium LPT performed on either blood or lung lavage cells; or
(2) Three borderline beryllium LPTs performed on blood cells over a period of 3 years.
(c) Chronic beryllium disease is established in the following manner:
(1) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (b) of this section), together with lung pathology consistent with chronic beryllium disease, including the following:
(i) A lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;
(ii) A computerized axial tomography scan showing changes consistent with chronic beryllium disease; or
(iii) Pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.
(2) For diagnoses before January 1, 1993, the presence of the following:
(i) Occupational or environmental history, or epidemiologic evidence of beryllium exposure; and
(ii) Any three of the following criteria:
(A) Characteristic chest radiographic (or computed tomography (CT)) abnormalities.
(B) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.
(C) Lung pathology consistent with chronic beryllium disease.
(D) Clinical course consistent with a chronic respiratory disorder.
(E) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).
(d) OWCP will use the criteria in either paragraph (c)(1) or (2) of this section to establish that the employee developed chronic beryllium disease as follows:
(1) If the earliest dated medical evidence shows that the employee was either treated for, tested positive for, or diagnosed with a chronic respiratory disorder before January 1, 1993, the criteria set forth in paragraph (c)(2) of this section may be used;
(2) If the earliest dated medical evidence shows that the employee was either treated for, tested positive for, or diagnosed with a chronic respiratory disorder on or after January 1, 1993, the criteria set forth in paragraph (c)(1) of this section must be used; and
(3) If the employee was treated for a chronic respiratory disorder before January 1, 1993 and medical evidence verifies that such treatment was performed before January 1, 1993, but the medical evidence is dated on or after January 1, 1993, the criteria set forth in paragraph (c)(2) of this section may be used.
(e) An injury, illness, impairment or disability sustained as a consequence of beryllium sensitivity or established chronic beryllium disease must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disability and the beryllium sensitivity or established chronic beryllium disease. Neither the fact that the injury, illness, impairment or disability manifests itself after a diagnosis of beryllium sensitivity or established chronic beryllium disease, nor the belief of the claimant that the injury, illness, impairment or disability was caused by the beryllium sensitivity or established chronic beryllium disease, is sufficient in itself to prove a causal relationship.
[71 FR 78534, Dec. 29, 2006, as amended at 84 FR 3048, Feb. 8, 2019; 89 FR 57731, July 16, 2024]