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U.S. Supreme Court strikes down WA state law helping ill Hanford workers

June 21, 2022 Updated Tue., June 21, 2022 at 7:36 p.m.

In this Aug. 13, 2019, file photo, a sign at the Hanford Nuclear Reservation is posted near Richland, Wash. Two companies that do work at the former nuclear weapons production plant will pay fines of nearly $58 million for improperly billing the federal government for thousands of hours of work that were not performed.  (Spokesman-Review file archive)
In this Aug. 13, 2019, file photo, a sign at the Hanford Nuclear Reservation is posted near Richland, Wash. Two companies that do work at the former nuclear weapons production plant will pay fines of nearly $58 million for improperly billing the federal government for thousands of hours of work that were not performed. (Spokesman-Review file archive)
By Annette Cary Tri-City Herald

The U.S. Supreme Court on Tuesday struck down a 2018 Washington state law that made it easier for ill Hanford nuclear reservation workers to collect state workers’ compensation.

However, the decision should have little impact on current and former workers at the site because new legislation in 2022 corrected the fault the Supreme Court found with the earlier law, said Washington state Attorney General Bob Ferguson.

“Hanford workers, and all others working with dangerous radioactive waste, remain protected,” Ferguson said after the Supreme Court ruling. “The federal government has not challenged this new law.”

Ferguson said that if the new law is challenged, he is prepared to again defend it all the way up to the Supreme Court.

The 2018 law eased requirements for ill contractor and subcontractor workers at the 580-square-mile nuclear reservation to apply for workers’ compensation. Contractor and subcontractor employees account for a large majority of the 11,000 Hanford workers.

The Hanford site adjacent to Richland in Eastern Washington was used from World War II through the Cold War to produce nearly two-thirds of the plutonium for the nation’s nuclear weapons program.

Now about $2.5 billion a year is spent by the Department of Energy, most through contracts and subcontracts, to clean up radioactive and other hazardous chemical waste and contamination at the site.

The 2022 law clarified that the eased requirements for Washington state workers’ compensation applied to any worker in the state filing a claim for illness they believe was from working at a radioactive waste site – not just Hanford contractor and subcontractor workers.

That includes Washington state workers making sure that DOE complies with state environmental laws and protecting the public from the spread of radioactive contamination.

Hanford law discriminates

The U.S. Supreme Court ruled that the 2018 law discriminated against the federal government by singling it out for unfavorable treatment.

The opinion was written by Justice Stephen Breyer, who was appointed during the administration of President Bill Clinton.

“… (T)he law imposes upon the federal government costs that state or private entities do not bear,” said the Supreme Court opinion. “The law consequently violates the Supremacy Clause unless Congress has consented to such regulation through waiver.”

The Supreme Court found that although Congress has waived federal immunity from state workers’ compensation laws on federal lands and projects, the immunity is not all encompassing and cannot discriminate against the federal government.

“Without the prohibition on discrimination, what prevents a state from imposing unduly high costs on the federal government for the benefit of the state’s own citizens?” the ruling said.

The federal government covers state workers’ compensation costs for Hanford contractor and subcontractor workers through self insurance.

“To put the point more specifically, if discrimination is permissible here, what prevents Washington from bestowing a windfall upon its residents through an especially generous workers’ compensation scheme financed exclusively by the federal government?” the ruling said.

The nondiscrimination principle provides a political check on the state’s ability to impose such laws by ensuring that the state’s own residents shoulder at least some of the costs, it said.

New law retroactive

The federal government has argued that the law could cost it $17 million to $37 million in claims, some of them still on appeal, that were awarded under the earlier law.

The state says that the new law applies retroactively to claims under the 2018 law.

Previously, U.S. Judge Stanley Bastian in the U.S. District Court in Eastern Washington granted the state’s motion for summary judgment to uphold the 2018 law in December 2018.

The Trump administration appealed, and in August 2020 a panel of the 9th Circuit Court of Appeals unanimously upheld the state law.

In September 2021, the Biden administration appealed that decision to the U.S. Supreme Court.

The 2018 law requires the Department of Labor and Industries, which approves or denies claims, to presume that radiological or chemical exposures at the Hanford nuclear reservation caused any neurological diseases or most 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.

How Hanford law differs

Under the state law passed in 2018, workers no longer had to prove their illness was not caused by something else in their lives or by exposure to a specific chemical causing 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 that their injury or illness was a direct result of a specific workplace incident in order for them to be paid workers’ comp.

In addition, 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 or their survivors may file a claim under the challenged state law.

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

“It is the most toxic workplace in America,” Tera Heintz, deputy solicitor general for Washington statement, said in arguments before the Supreme Court in April. ” … they can’t always prove what they were exposed to, and that’s one of the other unique dangers here.”

After the Supreme Court hearing, Washington state Attorney General Bob Ferguson called the federal government’s appeal of the 2018 legislation a “cruel legal challenge.”

Federal Hanford compensation

Hanford workers, former workers and their survivors also may apply to a federal compensation program.

The Energy Employees Occupational Illness Compensation Program Act administered by the U.S. Department of Labor has paid out more than $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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