A federal judge says he plans by the first week of June to rule on a Department of Justice lawsuit against the state of Washington over eased workers’ compensation requirements for workers at the Hanford Site.
Judge Stanley Bastian, of U.S. District Court for Eastern Washington, heard arguments May 22 from the parties. He reminded attorneys that they had agreed the lawsuit could be settled with his ruling on summary judgment rather than proceeding to trial.
The Justice Department sued the state Dec. 10, 2018, saying a new state law that took effect June 8, 2018, violated the Supremacy Clause of the U.S. Constitution. The state law shifts the burden of proof for deciding state workers’ compensation claims from the worker to the federal government for most ill or injured employees of contractors and subcontractors at Hanford.
The Justice Department asked the judge to issue a summary judgment ruling to overturn the state law. Unlike most workers in the state of Washington, employees of Hanford contractors and subcontractors no longer have to show that many illnesses were caused by a specific workplace exposure. Washington state has asked the judge to uphold the new law on summary judgment.
The Washington state Department of Labor and Industries approves or denies worker claims, with the self-insured Energy Department covering the costs of approved claims. The Energy Department may make a case to the state that factors such as lifestyle, heredity, or exposure at another job caused a worker’s illness. But Christopher Healy, a Justice Department attorney, said proving that Hanford did not cause an illness would be nearly impossible.
“I am not terribly sympathetic,” the judge replied. The difficulty workers have showing that a specific exposure to a hazardous chemical or radioactive material caused an illness, particularly given some poor recordkeeping at Hanford, is precisely what Washington state seeks to address with the new law, he said. The law is retroactive to the start of work at Hanford during World War II.
Anastasia Sandstrom, an attorney representing the state, said the Energy Department and its contractors, not the workers, are in the position of power for worker safety. Hanford has a history of poor monitoring for substances that could harm workers, and adequate personal protective equipment has not been mandated, she said.
The Justice Department is basing its case on the Supremacy Clause of the U.S. Constitution, saying the state has attempted to regulate the federal government and has discriminated against it by requiring heightened liability for workers’ compensation for some workers at Hanford.
Bastian asked repeatedly if the Energy Department was facing discrimination if the same standard could be applied to other workers in Washington, if the state found they faced similar risks. The state has argued that case law has shown that Congress has given it authority to protect workers on federal projects with workers’ compensation programs and that the heightened liability is warranted given the hazardous nature of working at Hanford.
But Healy argued that the law discriminates against the federal government by singling out only workers covered by the Energy Department’s self-insurance for state workers’ compensation at Hanford.
The law requires personnel spend only one eight-hour work day at a Hanford area where hazardous or radiological material may be present to be eligible for the eased workers’ compensation requirements. But personnel for the state Departments of Ecology and Health also may spend eight-hour days at Hanford for environmental oversight or for air monitoring, Healy pointed out. In addition, the US Ecology repository for low-level radioactive waste on land leased by the state at Hanford is excluded from the law. Also not covered is Perma-Fix Northwest just off Hanford, where workers handle and treat some waste from the site.
The new state law covers respiratory disease, neurological disease, chronic beryllium disease, beryllium sensitization and many types of cancer. It also covers heart problems if symptoms are experienced within 72 hours of exposure to toxic substances.
The Justice Department has argued that the state law is so broadly written that it covers many illnesses common in the United States, including strokes, Alzheimer’s disease, Parkinson’s disease, asthma, and chronic bronchitis.
The Washington state Department of Labor and Industries said that as of mid-May, 131 claims had been filed under the new law by Hanford workers and retirees or their survivors. Of those, 60 were approved, 20 rejected, and the remainder are pending.
