State asks judge to toss out lawsuit fighting benefits for more sick Hanford workers

Time-lapse of Hanford nuclear reservation demolition

The infamous McCluskey Room at the Hanford nuclear reservation has been torn down. The room was never used again after an explosion in 1976 sprayed worker Harold McCluskey with acid, radioactive material and shards of glass. He came to be known as
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The infamous McCluskey Room at the Hanford nuclear reservation has been torn down. The room was never used again after an explosion in 1976 sprayed worker Harold McCluskey with acid, radioactive material and shards of glass. He came to be known as

The state of Washington has asked a federal judge to uphold a new law that makes it easier for ill Hanford workers to get workers’ compensation.

If U.S. Judge Stanley Bastian agrees, it would end the lawsuit filed by the federal government in December seeking to block the new law as unconstitutional.

“Hanford workers face unique radioactive and chemical hazards found nowhere else in Washington,” according to the state’s court documents.

To address the danger faced by workers at the nuclear reservation in Eastern Washington, the state Legislature passed a bill last year that assumes that a wide range of illnesses current and former Hanford workers may develop are the result of working at the site.

Most other workers in the state bear the burden of presumption in their compensation claims.

They are required to prove that an exposure or accident at work harmed their health to get a state workers’ compensation claim approved.

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Hanford workers now are required to wear supplied air respirators for most work in the site’s tank farms, but that has not always been the case. Courtesy Department of Energy

The state argued in documents filed in federal court on Friday that the Department of Energy has already agreed to the new law.

Just days after the new law took effect June 8, DOE renewed its self-insurance agreement with the state.

Employers can pay premiums to the state for workers’ compensation coverage or can make an agreement with the state to be self insured and pay claims costs directly.

DOE consented in the self-insurance renewal agreement to comply with state workers’ compensation laws and regulations, which includes the new law for Hanford workers compensation, the state said.

Lawsuit claims law is unconstitutional

The federal government argues in its lawsuit that the new law violates the Supremacy Clause of the U.S. Constitution by attempting to regulate the federal government and discriminating against it with heightened liability for workers’ compensation.

But the state said not only has DOE agreed to the law, but that the state is not regulating the federal government without federal authority.

Congress gave the state authority to apply their workers’ compensation laws to protect employees of federal contractors, the state said.

The state Department of Labor and Industries decides whether to approve or deny workers compensation claims, which can result in payments for lost wages, job retraining and education, medical benefits and pensions.

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Legislation passed in 2018 makes it easier for Hanford workers to win approval of claims for a wide range of illnesses.

The federal government argued in court documents filed earlier this month that the list of covered illnesses is so loosely defined that workers likely would be compensated for many illnesses common in the U.S. population.

The new law requires Labor and Industries to presume that respiratory illnesses, neurological illnesses and many types of cancer, plus some additional diseases, are caused by working at Hanford.

That makes the federal government responsible to provide workers’ compensation to Hanford workers who develop illnesses such as asthma, chronic bronchitis, Parkinson’s disease, Alzheimer’s disease and strokes, the Department of Justice said.

Hanford contractor or subcontractor employees who spend a minimum of one eight-hour shift at a Hanford work area qualify for the eased compensation rules.

Hanford is contaminated from the past production of plutonium for the nation’s nuclear weapons program.

Hanford workers face unusual hazards

Workers and union supporters testified before the state Legislature as the new law was considered that Hanford workers are often subjected to hazardous exposures, with no one, including DOE officials, knowing the chemicals to which a particular worker may have been exposed.

“These exposures involve many dangerous chemicals and radioactive substances that can cause serious health problems,” the state said.

DOE contractors have not consistently monitored chemicals, making it difficult for workers to identify a specific incident at Hanford that caused their disease or condition, the state said.

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Hanford workers, shown preparing to remove a highly radioactive spill beneath the 324 Building, face risks from radioactive and hazardous chemicals, plus industrial hazards. Courtesy Department of Energy

“Hanford is a uniquely dangerous place to work — there is no comparable work site in Washington,” the state said.

Singling Hanford out for different workers’ compensation rules is justified because of the unusual hazardous at the nuclear reservation and is not discrimination against the federal government, the state said.

It also pointed out that firefighters also have different workers’ compensation rules in Washington state, although the rules are not as broad as those for Hanford workers.

“Nothing bars the state from treating employers with different work conditions differently,” the state said.

The state also addressed Department of Justice comments about the cost of the new law to federal taxpayers.

More claims being filed

The new law would allow about 100,000 past and current Hanford employees to file state workers compensation claims or refile denied claims, according to the Department of Justice.

Hanford is expected to employ additional Hanford contractor employees for environmental cleanup work for decades to come.

State Legislature staff estimated that the state Department of Labor and Industries should be prepared to handle about 810 claims for each of the first five years of the new law.

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A worker is shown at the Hanford nuclear reservation’s PUREX processing plant in 1956. Courtesy Department of Energy

In the decade before the law took effect, DOE received five or fewer claims each year for cancer. But since the new law passed, it has received 50 claims for cancer, according to Department of Justice documents.

Costs for claims for cancer and some other diseases covered by the new law could easily exceed $1 million each, according to Department of Justice documents.

“The state’s interest in protecting workers is stronger than any federal economic burden,” the state countered in court documents.

If the federal government can prove that a worker claim has no merit, it will face no cost, the state said.

The federal government has a chance to prove that an individual worker’s illness was caused not by working at Hanford, but by other factors such as genetics or lifestyle.

However, the Department of Justice says that will be difficult, especially with claims for workers who may have been died decades ago.

DOE program manager Gail Splett tells about the opening of the Hanford Workforce Engagement Center in Richland. The facility is for current and former Hanford workers and their families who have occupational health questions.

Bastian has scheduled a hearing for May 8.

The hearing could result in a decision for the federal government that the new law is unconstitutional, a decision for the state that the law is constitutional or a decision to proceed to trial with the lawsuit.

Workers or their survivors can learn more about state and federal compensation programs and how to apply for them at the Hanford Workforce Engagement Center at 309 Bradley Blvd., Suite 120, in Richland.

The center can be reached at 509-376-4932.

Senior staff writer Annette Cary covers Hanford, energy, the environment, science and health for the Tri-City Herald. She’s been a news reporter for more than 30 years in the Pacific Northwest.