A Washington state law to help ill Hanford nuclear reservation workers is moot, an attorney for Washington state argued before the U.S. Supreme Court on Monday.
After the court agreed to consider the appeal brought by the federal government against the state, the Washington Legislature passed a new law this fall.
The new law is retroactive, argued Tera Heintz, deputy solicitor general for Washington state. It takes the place, in large part, of the law passed with bipartisan support of the Legislature in 2018 to make it easier for ill Hanford workers to qualify for state worker compensation benefits.
“The federal government is asking you to issue a Constitutional ruling invalidating a state law that no longer exists and that has no ongoing effect,” she said.
But the U.S. Department of Justice argued that it is possible that it could still be required to cover claims under the original law since there are 66 of them pending.
It has asked the Supreme Court to weigh in after it lost a case opposing the original state law in U.S District Court in Eastern Washington and then an appeal to the Ninth Circuit Court of Appeals.
Malcolm Stewart, U.S. deputy solicitor general, argued that the 2018 state law discriminates against the federal government. It applies only to Hanford and only to workers for contractors and subcontractors at the site, who make up the large majority of the 11,000 workers at Hanford.
The similar law passed this year attempts to correct that by expanding the scope of the law to apply to some additional workers, such as Washington state employees who spend time on the 580-square-mile nuclear reservation in Eastern Washington as regulators for the state of Washington.
Federal law does not authorize the state “to subject federal contractors at the Hanford facility to uniquely onerous burdens,” Stewart said.
“The problem here is that Washington has decided that the United States should be doing more for this class of Washington residents, but it’s not within the power of a single state to determine how much the federal government should be doing to solve a national problem,” Stewart said.
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, building on appeals that said it was poorly written and so broad that it exposes taxpayers to “massive new costs” that other state and private employers do not incur.
Hanford ill worker law
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 2018 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, and in some cases surviving family members, also may apply to a federal program for compensation and reimbursement of medical expenses.
Under the state law passed in 2018 workers no longer had 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.
“It is the most toxic workplace in America,” Heintz told the justices. ” … 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 Monday, state Attorney General Bob Ferguson called the federal government’s appeal of the 2018 legislation a “cruel legal challenge.”
The Department of Justice has not filed an appeal against the Hanford ill worker state law passed this year. It was signed into law by Gov. Jay Inlsee on March 11 and took effect immediately.