Tuesday, January 25, 2022
Jan. 25, 2022

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U.S. Supreme Court agrees to review Washington state law that helps ill Hanford workers

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KENNEWICK — The U.S. Supreme Court agreed Monday to review a Washington state law that makes it far easier for ill Hanford site workers to be compensated.

The Department of Justice asked the Supreme Court to weigh in after it lost a case opposing the state law in U.S District Court in Eastern Washington and then an appeal to the Ninth Circuit Court of Appeals.

The federal government’s fight against the law started under the Trump administration and then was taken up by the Biden administration.

The Biden administration asked the Supreme Court to review the law, saying it was poorly written and so broad that it exposes taxpayers to “massive new costs” that other state and private employers do not incur.

The Washington state law passed in 2018 makes it easier for ill Hanford workers to qualify for state worker compensation benefits.

Whether to approve or deny claims for compensation is decided by the Washington state Department of Labor and Industries. But the federal Department of Energy pays the cost of approved claims because it is self-insured.

The new law requires L&I to presume that radiological or chemical exposures at the Hanford nuclear reservation caused any neurological diseases or respiratory illnesses claimed by past or current employees of Hanford contractors.

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

Workers no longer have to prove that not only that their illness was not caused by something else in their lives, but also no longer have to prove that an exposure to a specific chemical caused their illness. Some 1,500 different volatile gases have been found in waste in Hanford’s underground tanks.

Most other workers in Washington state bear the burden of proof to show that their injury or illness was a direct result of a specific workplace incident in order for them to be paid workers’ comp.

The Department of Justice has argued that the description of covered illnesses in the state’s Hanford law is so vague that it could cover hundreds of commonly occurring illnesses, including asthma, chronic bronchitis, Parkinson’s disease, Alzheimer’s disease and strokes.

Rather than having two years to file a claim with the state like most employees in Washington, Hanford workers who spend a minimum of one eight-hour shift at Hanford work areas can file throughout their lifetime under the new law. Or their survivors could file after their death, the Department of Justice has argued.

The 580-square-mile Hanford nuclear reservation adjacent to Richland, WA, is contaminated with radioactive and hazardous chemical waste from the past production of two-thirds of the plutonium for the nation’s nuclear weapons program. About $2.5 billion is being spent annually on environmental cleanup there.

Opposition to Supreme Court appeal

In October 66 state legislators, including Democrats and Republicans and representatives and senators, signed a letter to Biden asking him to reconsider the challenge to the law filed with the Supreme Court.

Among those signing the letter were state Sen. Sharon Brown, R-Kennewick, and state Rep. Mark Klicker, R-Walla Walla. They were the only officials from Legislative Districts 8, 9 and 16, each of which have Benton or Franklin county voters, to sign the letter.

As the Legislature was considering easing workers’ compensation requirements for Hanford contractor employees, workers and union supporters testified 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.

A survey of Hanford workers by the Washington State Commerce Department in 2021 found that over half of the workers who responded to the survey had been exposed to toxic vapors.

The Biden administration’s appeal to the Supreme Court also was opposed by Washington Gov. Jay Inslee, a Democrat, who said in 2021 that “the decision by the Department of Justice to pursue this case in the U.S. Supreme Court is a mistake that threatens to compound the suffering of Hanford workers.”

State Attorney General Bob Ferguson was surprised and angered by the appeal to the Supreme Court.

He could not believe that Biden, as a long-time champion of American workers, had been consulted on the appeal, he said in September.

“President Biden must agree that Hanford workers should be able to access the benefits they earned, including workers’ compensation,” he said.

Rulings for state

In the initial legal ruling in the case in June 2019, U.S. Judge Stanley Bastian found that the new law did not violate the Supremacy Clause of the U.S. Constitution because Congress has authorized several states to regulate workers’ compensation on federal land to the same extent that they can regulate non-federal land.

He found that the state of Washington can create workers’ compensation laws to address particular risks to employees in the state.

Firefighters in the state also have different workers’ compensation rules, although the rules are more restrictive than for Hanford contractor employees.

The Department of Justice appealed the ruling to the 9th Circuit Court of Appeals, which ruled in August 2020 that the state has a right to create laws that make it easier for ill workers at the Hanford site to get workers compensation.

The ruling by the three judges on the panel considering the case was unanimous.

Federal compensation program

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 nearly $2 billion in compensation and medical reimbursement to ill Hanford workers and their survivors.

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.

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