Justice Department Sues Washington State Over Law to Compensate Sick Workers

by | December 13, 2018 AT 10:05 AM

By Hal Bernton

The U.S. Justice Department sued Washington state Monday alleging that a law approved by the Legislature to make it easier for ill Hanford workers to get compensation discriminates against the federal government and its Energy Department contractors.

The lawsuit filed against the state in U.S. District Court in Eastern Washington asks a federal judge to declare the law invalid and prevent enforcement.

The U.S. Department of Energy is a self-insured employer and pays out claims, and the law seeks to help workers receive compensation for illnesses resulting from their time at Hanford. The state Department of Labor & Industries makes the final determination on cases appealed by Hanford workers.

Under the law, some cancers and other illnesses are assumed to be due to chemical or radiological exposures at Hanford unless that presumption can be rebutted by clear and convincing evidence.

The Hanford site near Richland was used to make plutonium for atomic weapons. It is now the focal point of a decades long cleanup of what is considered the most polluted site in North America. The effort involves some 10,000 workers employed by contractors.

The filing follows through on threats made this fall in a Justice Department letter to Gov. Jay Inslee. The letter alleged the state law violates the Supremacy Clause of the U.S. Constitution because "it purports to directly regulate" the federal government.

On Tuesday, meeting with reporters, Inslee attacked the lawsuit as another "depraved action" by the Trump administration, which he accused of a broader effort to strip away health-care benefits.

"This is just one piece of a very disturbing puzzle," Inslee said.

State Attorney General Bob Ferguson said the federal lawsuit was based on an incorrect interpretation of state and federal law.

"We are confident in our ability to defend this legislation," Ferguson said.

The legislation signed into law in March by Inslee was propelled through the Legislature by sick Hanford workers frustrated by denials of their compensation claims.

"We have had the biggest battle of our life," said Melinda Rouse on March 22, 2017, in state Senate testimony on behalf of her husband, Lawrence Rouse, who worked for more than 20 years at Hanford and was diagnosed with toxic encephalopathy.

The legislation drew opposition from the Washington Self-Insurers Association and the Association of Washington Business, with critics arguing that it was "breathtaking in its scope and inclusivity" and would set a bad precedent, according to a summary of testimony included in a state House of Representatives report.

In the lawsuit, Justice Department attorneys said the law subjected Hanford contractors to significantly heightened workers'compensation liability not imposed on any other employers in the state. "DOE will bear the majority of the costs from this heightened liability, including for ailments not demonstrated to have resulted from employment at Hanford," the lawsuit alleges.

Tom Carpenter, executive director of Hanford Challenge, a watchdog group, said Tuesday that the law is a justified response to years of efforts by the Energy Department to fight claims filed by workers.

He said the Washington law could set a precedent, encouraging other states with federal nuclear sites to pass similar legislation.

As of late November, 83 claims have been reviewed under the law. Of those, 28 have been allowed, six have been denied and 49 are pending, according to Tim Church, a spokesman for state Labor & Industries.

(c)2018 The Seattle Times