Feds ask why some people at Hanford should be compensated for illness and not others

A decision could come within two weeks on whether the state of Washington is within its rights to make it significantly easier for most of the employees at the federal Hanford nuclear reservation to get paid workers’ compensation.

U.S. Judge Stanley Bastian heard arguments in Yakima Federal Court this week after the Department of Justice filed a lawsuit to have a new state law overturned. He said he planned to rule quickly, possibly in less than two weeks.

Both the state of Washington and the U.S. Department of Justice have agreed to let his decision stand on whether a new state law for Hanford workers violates the U.S. Constitution, without proceeding to trial.

The law that took effect almost a year ago requires the Washington state Department of Labor and Industries to presume that radiological or chemical exposures at Hanford caused any cases of neurological diseases or respiratory illnesses for which past or current contractor workers file claims.

Many types of cancer also are presumed to be caused by working at Hanford, plus some limited heart problems.

Workers need only be employed at a Hanford work area for a single eight-hour shift to qualify for the eased compensation rules.

Most other workers in the state bear the burden of proof to show that their injury or illness was a direct result of a specific workplace incident to receive workers’ comp.

Lawsuit says claims impossible to refute

The Department of Energy may make a case that factors such as smoking or a person’s lifestyle contributed to an illness. But proving that Hanford did not cause an illness would be nearly impossible, argued Christopher Healy, Justice Department attorney.

The 580-square-mile Hanford nuclear reservation is contaminated from the past production of plutonium for the nation’s nuclear weapons program. Courtesy Department of Energy

The Justice Department said in court documents that the list of covered illnesses is so loosely defined that it could cover hundreds of common illnesses, including asthma, chronic bronchitis, Parkinson’s disease, Alzheimer’s and strokes.

The argument drew little sympathy from Bastian.

The difficulty of proving causation of a worker’s illness is exactly what the state is trying to address with the new law, he said.

It’s next to impossible, particularly given some poor recordkeeping at Hanford, for a worker to prove that Hanford caused cancer or other illnesses, Bastian said.

The federal government is in the position of power at Hanford, maintaining records and holding the responsibility to protect workers, said Anastasia Sandstrom, an assistant attorney general for the state.

The Justice Department has argued 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.

Discrimination against DOE?

The state Department of Labor and Industries decides claims. But the Department of Energy is self insured for workers compensation for Hanford contractor employees — the majority of the workers at Hanford — and assumes the risk for payment of claims.

“The Legislature intended the Department of Energy to foot the bill,” Healy said. “It’s easy to spend someone else’s money.”

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Hanford workers remove a failed pump from one of the nuclear reservation’s underground tanks used to store 56 million gallons of radioactive waste. Courtesy Department of Energy

Bastian asked repeatedly if the new law really discriminated against DOE, or if the state could similarly target other workers with high-risk jobs.

Healy argued that the new law specifically targeted employees covered by DOE workers’ compensation self insurance and not other workers at Hanford.

For instance, it does not cover Washington state Department of Ecology or Department of Health employees assigned to Hanford regulatory or oversight work who routinely spend time at the nuclear reservation.

It also does not cover workers on the US Ecology site, a disposal site on land leased from DOE by the state of Washington in the center of Hanford for commercial low level radioactive waste disposal from western states, Healy pointed out.

The new law covers Hanford workers who load radioactive waste onto trucks to be shipped to PermaFix Northwest just off Hanford, but not the workers who unload the waste at the Richland plant, he said. The plant’s work includes treating waste for disposal.

Sandstrom argued that the state is not obligated to treat everyone the same if it has a rational reason for differing treatment.

In this case, the federal contractors at Hanford have a bad record, she said.

Help available for ill worker claims

The new law addresses a legitimate government issue of contractors’ poor monitoring for radioactive material and failure to provide protective gear to workers at Hanford, she said.

The federal government has conceded that the environmental cleanup at Hanford is unparallelled in complexity and scale and that there are unique medical risks, compounded with missing information, she said.

Hanford, which covers 580 square miles, was used to produce plutonium for the nation’s nuclear weapons program during World War II and the Cold War. It has extensive contamination and has been undergoing cleanup since the end of the Cold War, with remaining cleanup estimated to cost at least $323 billion, according to a new DOE estimate released in January.

The state also has argued that just days after the new law took effect June 8, 2018, DOE renewed its self insurance agreement with the state and agreed to follow state regulations.

The new workers’ compensation law has no statute of limitations and the federal government estimates that to date it allows about 100,000 current and former Hanford employees, or their survivors, to file claims or refile denied claims.

Since the new law took effect 131 claims have been filed, with 60 allowed and 20 rejected by the Department of Labor and Industries. The rest were pending as of mid May.

Hanford workers and their survivors also may apply for a federal compensation program administered by the U.S. Department of Labor.

It has paid out almost $2 billion in compensation and medical care reimbursement to Hanford and Pacific Northwest National Laboratory workers or their families.

Workers 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.