Judge rules for ill Hanford workers. State’s new worker compensation law is fair

The state of Washington can legally make it significantly easier for most employees of the Hanford nuclear reservation to get workers’ compensation claims approved, a federal judge ruled Thursday.

The U.S. Department of Justice had asked to have a new state law overturned.

It sued in federal court, saying the state 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.

The state argued that eased rules were appropriate for ill Hanford workers, given their risk of exposure to harmful compounds at Hanford and poor chemical testing records kept by contractors there.

Hanford produced plutonium for the nation’s nuclear weapons program through the Cold War and contractor employees now are working on environmental cleanup of areas extensively contaminated with radioactive and hazardous chemicals.

U.S. Judge Stanley Bastian found that the new law does not violate the Supremacy Clause because Congress has authorized several states to regulate workers’ compensation on federal land to the same extent that they can regulate non-federal land.

324 building.jpg
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

The state of Washington can create workers’ compensation laws to address particular risks to employees in the state, it said.

The ruling ends the case. Both the state of Washington and the federal government agreed that the judge could decide the case without it going to trial.

Workers’ compensation law

The new law, which took effect 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 employees file claims.

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

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

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.

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 Washington state Department of Labor and Industries decides whether to approve or deny claims. The Department of Energy pays the cost of approved claims because it is self-insured.

It argued that the new law would increase its costs for the environmental cleanup of Hanford.

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 federal government argued.

State says workers owed compensation

“The court appropriately rejected the Trump administration’s attempt to undermine our state protections for Hanford workers,” said state Attorney General Bob Ferguson.

“Hanford workers do incredibly important work cleaning up the federal government’s nuclear program,” he said. “If they get sick as a result, they deserve the ability to access the benefits they have earned.”

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 which chemicals a particular worker may have been exposed to.

hanfor workers.jpg
The legislation passed in 2018 was intended to make it easier for Hanford workers to win approval of claims for a wide range of illnesses.

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

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 argued.

“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.

It also addressed federal concerns about the cost of the new law.

Hanford: 100,000 workers eligible

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 nearly impossible to prove that a disease was not caused by working at Hanford, especially with claims for workers who may have been died decades ago.

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.