The Washington state Attorney General’s Office this week forcefully challenged the federal government’s request that a U.S. District Court dismiss the state lawsuit filed over worker safety at the Department of Energy’s Hanford Site.
In a motion filed in August, the Department of Justice said the state had no legal standing under the 1976 Resource Conservation and Recovery Act (RCRA) to file the September 2015 lawsuit against the Department of Energy, Energy Secretary Ernest Moniz, and Hanford tank farms contractor Washington River Protection Solutions (WRPS).
Specifically, according to the Aug. 23 DOJ motion in U.S. District Court for Eastern Washington, the state cannot demonstrate that it has been directly harmed by chemical vapors from tank farms, and it cannot legally under its “parens patriae” authority file a lawsuit for a “very small subset” of its citizenry, specifically Hanford workers. WRPS later in August submitted a request to join the DOE motion for dismissal, making the same arguments against the state case.
The parens patriae doctrine is intended to give the state authority to protect those who cannot protect themselves.
“The federal government is not shielded by prudential limits on parens patriae suits,” the Washington AG’s Office attorney said in a Sept. 13 request for denial of the federal motion. “This is especially true when Congress explicitly authorizes states to sue federal agencies to enforce a federal statute, as is the case here.”
Washington state sued last year to force the DOE and WRPS to improve the safety of personnel from vapors emitted by large tanks that hold tens of millions of tons of chemical and radioactive waste left over from Cold War-era plutonium production at Hanford. The state case was subsequently merged with a corresponding lawsuit filed by the watchdog group Hanford Challenge and Plumbers and Steamfitters Local Union 598.
After more than 50 Hanford workers reported potential exposure to vapors beginning in April, the plaintiffs in July sought a preliminary injunction for interim safety and vapor monitoring upgrades until the lawsuit can be decided. The requested measures include mandatory use of supplied air systems for any worker within the tank farms’ perimeter fence line, expanding the vapor control zone during waste disturbing operations, and use of more monitoring and alarm systems during such operations in affected tank farms.
A hearing on the preliminary injunction is scheduled for Oct. 12. In the interim, DOE and WRPS have implemented additional safety measures including use of supplied air respirators on any work within the tank farms. The full trial is scheduled for Sept. 18, 2017.
The Attorney General’s Office motion says the Department of Energy “fundamentally misunderstands” RCRA and the state’s intentions in citing the law in its lawsuit: “The State does not seek to vindicate the private interests of a ‘very small subset’ of the State’s population. Rather, the State asserts its broader, public interest that all persons working within its borders—including current and future Hanford workers— enjoy a workplace free from the risk of crippling respiratory illness and other serious health effects.”
Thousands of Hanford workers are certified to enter the tank farms, and others work nearby in areas where exposures have been reported, the AG’s Office said. Exempting these personnel from protections also sets a dangerous precedent for cleanup of other industrial sites around the state, according to the motion.
The AG’s attorneys also noted that DOE has not challenged the standing of Hanford Challenge and Local 598 to sue over worker safety. That being the case, under legal doctrine set by the Supreme Court and U.S. Court of Appeals for the Ninth Circuit, the AG’s Office said “standing for one is standing for all” – meaning the court does not need to consider the state’s independent standing to sue. The plaintiffs reject this position.
The Department of Energy on Wednesday reaffirmed that it does not comment on pending legislation. WRPS referred to its Aug. 26 “joinder” filing with DOE as its statement on the case.
It was not immediately clear when the court would rule on the motions to dismiss or sustain the state lawsuit.
“While there is no requirement that the court rule on the motion by any time, but the interim protective measures will expire on November 24, so, as a practical matter, a ruling on the [preliminary injunction] before then would make sense,” Peter Lavallee, communications director for the Washington state Attorney General’s Office, said by email Thursday.
