Court Ruling in Favor of WA Nuclear Workers Not Likely to Set Precedent, Expert Says

Seattle, WA (WorkersCompensation.com) – A court has upheld Washington’s legislatures new rules giving nuclear workers more protections under workers’ compensation.

In March, the U.S. Department of Justice filed suit against the state, asking the court to prevent legislation that would have made it easier for more than 100,000 past and current workers at the nuclear weapons facility to get compensation for cancers and other illnesses they developed as a result of working there.

As previously reported in WorkersCompensation.com, the law, passed last year, makes the presumption that exposure to chemicals at Hanford caused illnesses in the employees there, up to and including cancer.

Hanford is considered one of the “most radioactive waste sites” in America covering 200 square miles of contaminated groundwater and including 53 million gallons of liquid waste, 25 million cubic feet of solid waste. The site was a facility for enriching plutonium during World War II and the Cold War, and is where more than 60,000 nuclear warheads were made. The facility closed in 1987.

According to court filings from the Department of Energy, the new legislation is too broad and would violate the Supremacy Clause that prevents states from regulating the federal government.

The state countered the DOE, saying the legislation was necessary and appropriate given workers’ risk of exposure and poor testing records kept by contractors at Hanford.

According to court documents, U.S. Judge Stanley Bastian ruled that the legislation does not violate the Supremacy Clause because Congress allows several states to regulate workers’ compensation on federal lands the same way it does on non-federal lands. The state is free to create workers’ compensation laws that address risks to employees in the state, the court said.

Hugh Stephens, a N.Y. attorney specializing in workers’ compensation claims for nuclear facility workers, said the Hanford case might not set a precedent for other nuclear facilities across the country.

“The Hanford situation is unusual,” Stephens said in an interview with workersCompensation.com. “I believe it is considered the most contaminated facility in the country. Workers come in contact with extraordinarily hazardous fumes/vapors such that one exposure can render a worker permanently disabled and unable to work. This happens almost immediately even to very young workers. It is not typically possible to identify what substance injured the worker. While Oak Ridge, Nevada Test Site, Rocky Flats and other large facilities have involved similarly mysterious and deadly exposures, I do think that Hanford may be the worst of these facilities. So I believe the Washington legislation is powerful and appropriate but I would not characterize it as a model for other states.

“I am in favor of strong workers compensation programs but I think that in the current political climate, the Washington legislation would not typically find broad support,” Stephens added. “But it is the secrecy associated with these nuclear weapons programs that makes proving claims difficult for workers and warrants the types of burden shifting and presumptions at work under the federal Energy Employees Occupational Illness Compensation Program (EEOICP) and the Washington State Labor and Industries (L&I) program.”

With the judge’s ruling, the case comes to a close. Both state and federal officials agreed to let the judge decide on the case without it going to trial.

To qualify for the eased compensation rules, workers only need to have been employed at a work area at Hanford for a single eight-hour shift. The new legislation has no statute of limitations. According to the federal government, it would allow current and former Hanford employees, or their survivors, to file new claims, or to refile claims that had been denied.

So far, only 131 claims have been filed. Of those, 60 have been approved, 20 have been rejected and the rest are pending. The federal government has paid out nearly $2 billion in reimbursement claims to Hanford employees or their families, and to workers of Pacific Northwest National Laboratory, or their surviving family members.

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