Excerpts from WA State’s Summary Judgment Motion to Dismiss the US Department of Justice’s lawsuit against WA’s Worker Comp law

12112018_Hanford-workers_104015-780x371Image Courtesy: The Seattle Times

In this blog, we share the main excerpts from WA State’s Summary Judgment Motion to Dismiss the US Department of Justice’s lawsuit against WA’s Worker Comp law which was filed on March 22, 2019, US District Court, Eastern Dist. of WA.

Background:  In March 2018, the Washington State Legislature sent a worker compensation bill for signature to Governor Jay Inslee that provided that Hanford nuclear workers would enjoy the presumption of causation for several categories of illnesses, such as respiratory, neurological, heart conditions and cancer because of their work at Hanford. 

This bill, which was signed into law by Governor Inslee and took effect in June 2018, relieved sick Hanford workers from having to somehow prove to WA Labor and Industries that they were exposed to a specific chemical or chemicals at a certain time and in certain concentrations so that causation of an illness was established.  This was an impossible task.  Not even Hanford officials collect or provide such data, and in fact it would be impossible to do so.

This law fixed a serious problem:  before the passage of the law, Hanford workers were five times less likely to receive compensation and medical care under WA’s worker comp law than the average Washington worker for illness and injury due to toxic chemical exposures.  Why? Largely because Hanford spent immense resources trying to claim that the exposures never happened in the first place, despite the fact that Hanford is one of the most toxic worksite in the State.  Workers were unable to produce the documentation of their exposures, because it didn’t exist.  As a result, hundreds of Hanford workers have been denied compensation over the years.

In passing this legislation, the State followed the same presumption of causation exception that it provided for firefighters in the State, and for the same reasons.  There can be no method to ascertain the toxic exposures to a firefighter who enters or is near a burning structure. 

The U.S. Department of Energy (DOE) is the federal agency that runs the Hanford nuclear site.  The DOE did not participate in the several legislative hearings that occurred leading up to the passage of the bill.  In fact, the DOE entered into a new Memorandum of Agreement with Washington State to affirm DOE’s commitment to abiding by Washington State’s worker compensation laws for contractor employees at the site. 

Yet, in December 2019, the US Department of Justice filed a lawsuit against Washington State in federal court, arguing that the law violates the Supremacy Clause of the Constitution, and that the law should be struck down because it discriminates against the federal government. 

Below are excerpts from Washington State’s Summary Motion brief, arguing that the district court should dismiss the claims by the United States and uphold Washington’s law.

“Washington State has properly acted to protect its residents from unsafe working conditions at Hanford. Congress allows states to apply their workers’ compensation laws to protect employees of federal contractors. 40 U.S.C. § 3172. Hanford workers face unique radioactive and chemical hazards found nowhere else in Washington. To address this situation, the Washington State Legislature adopted a statute placing a presumption on Hanford workers’ employers, who are not the federal government, to prove that their workers’ illnesses did not arise from their work at Hanford.”

“The same type of presumption applies to firefighters, who also are exposed to an array of hazardous substances.”

“Washington’s approach is explicitly allowed by federal law. Under 40 U.S.C. § 3172, states may regulate federal property to protect workers “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.” (Emphasis added.) This language allows states to regulate contractors on federal property “as if” the property were controlled by the State. If Hanford were state property or private property, Washington could unquestionably apply the presumption system it has adopted here. See Mountain Timber Co. v. Washington, 243 U.S. 219, 243-46 (1917) (upholding Washington’s workers compensation system and its classification of employers based on the risks to which they expose their workers).”

“Cleanup of the site is a project “unprecedented in scale and complexity” that exposes workers to many hazardous chemicals and radioactive substances.”

“DOE contractors and subcontractors are employers under Washington’s statutes. For these employers’ workers, DOE voluntarily agreed to be a  collective self-insurer through an agreement with L&I.”

“L&I has had several memoranda of understanding with DOE about workers’ compensation coverage of DOE contractors at Hanford. [citation omitted] The agreements create a self-insurer system for contractors and subcontractors working at Hanford under which DOE voluntarily assumes responsibility for the workers’ compensation costs as a self-insurer for specified contractors.”

“Effective June 7, 2018, several days before the MOU was renewed, the Washington Legislature adopted a law providing that for “United States department of energy Hanford Site workers” there is a prima facie presumption that certain diseases and conditions are occupational diseases. Wash. Rev. Code § 51.32.187(2)(a). This places the burden of proof on the employer to disprove coverage. Id. A similar presumption exists for firefighters. Wash. Rev. Code § 51.32.185(1)(a).”

“Public testimony supporting the bill revealed that Hanford workers are often subjected to hazardous exposures with no one, including DOE, knowing the chemicals to which a particular worker was exposed.”

“These exposures involve many dangerous chemicals and radioactive substances that can cause serious health problems.”

“But DOE contractors have not consistently monitored chemicals to allow medical professionals to know the exposures that particular workers are subjected to. [citation omitted] Because of this, workers often have a difficult time identifying specific incidents at work that cause their diseases or conditions, or proving what exposure caused the disease or condition. [citation omitted] This problem—specific to Hanford contractors—makes it difficult to administer workers’ compensation claims.”

“Despite the lack of effective monitoring, scientific studies have documented that Hanford presents hazardous exposure risks to workers.”

“For example, exposure to sufficient concentrations of ammonia can cause severe respiratory conditions, and in sufficient concentrations, even a 30-minute exposure can lead to death. Tsuji Decl. at 32. Because of these hazards, Hanford is a uniquely dangerous place to work—there is no comparable work site in Washington:

Hanford workers face known and unknown hazards because of their potential exposure to the hazardous substances stored at Hanford, an assemblage of substances found nowhere else in Washington. The scope of the work on Hanford and the sheer unknown nature of many of the exposures present a unique set of circumstances in Washington. It makes sense to presume from an occupational safety and health standpoint that some exposures are toxic and harmful to Washington workers given the chemical and radiological waste and substances being processed by workers. Soiza Decl. at 4; see Dahl-Crumpler Decl. at 4; Miller Decl. at 16, 25;”

“The plain language of § 3172 resolves this case in the State’s favor. Section 3172 allows states to apply their workers’ compensation laws “to all land and premises in the State which the Federal Government owns . . . , and to all projects, buildings, constructions, improvements, and property in the State and belonging to the Government . . . in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State . . . .” 40 U.S.C. § 3172 (emphasis added).”

“In other words, if a state could impose a workers compensation law on its own property, it can do so “in the same way and to the same extent” for federal property.”

“The [Supreme] Court has recognized that states may target safety problems in their laws. In Goodyear Atomic, Ohio’s constitution provided for a supplemental award if the employer’s safety violation caused the work place injury. 486 U.S. at 176-77. The contractor argued that the enclave statute did not apply because it was not a “typical [no fault] workers’ compensation act . . . .” Id. at 183. The Court disagreed because 40 U.S.C. § 290 (now numbered § 3172) explicitly required enforcement of state workers’ compensation laws on federal enclaves. 486 U.S. at 183-84.”

“DOE does not dispute whether Washington’s workers’ compensation system applies to federal contractor employers; instead, it disputes how the State covers workers. It does so by contesting one statute in the system. But nothing in § 3172 and its case law allows a federal contractor to pick and choose what statute it wishes to apply. See Goodyear, 486 U.S. at 183-84. The state’s whole system applies, and DOE cannot parse out the provisions that will apply to federal contractors, as it seeks to do here.”

“First, employers of firefighters are also subject to a presumption because of the special dangers firefighters face. See Wash. Rev. Code § 51.32.185. Like the Hanford presumption, the Legislature adopted the firefighter presumption because firefighters face challenges in proving exposures and causation.”

“Second, a core purpose of the Industrial Insurance Act “is to allocate the cost of workplace injuries to the industry that produces them, thereby motivating employers to make workplaces safer.” Harry v. Buse Timber & Sales, Inc., 201 P.3d 1011, 1018 (Wash. 2009). So the State charges state-fund employers differently depending on the specific hazards their workers face.”

“The presumption statute furthers Congress’s intent that contractors’ employees receive full coverage for their disabilities. The enclave statute “free[s] State workmen’s compensation laws from the restraint upon their enforcement” for “injuries received by employees of private employers on federal property within the State’s exterior boundaries.””

“Washington’s and Congress’s laws are harmonious. Washington’s workers’ compensation laws are intended to promote worker safety. Harry, 201 P.3d at 1018. Given the unsafe nature of work at Hanford and the contractors’ deficits in protecting workers, it makes sense to place the burden on the contractor to show that particular diseases are not work-related.”

“No facility in Washington exposes workers to the same level of hazardous substances as Hanford. Soiza Decl. at 4; Tsuji Decl. at 48. So there was no need for the Legislature to pass legislation that addressed other facilities as well. Creating unique protections for workers exposed to unique dangers does not make a statute discriminatory.”

“DOE argues that there is discrimination because section 51.32.187 treats workers at non-cleanup facilities at Hanford differently than workers in the areas subject to the statute, and treats other workers in the state differently.  But the other facilities at Hanford not covered by the presumption statute do not have the same hazards as those in the cleanup area, and no other job site in Washington has the same hazards.”

“Much like work at Hanford, firefighting is especially hazardous and it is difficult to determine what hazardous exposure a firefighter experienced and which chemical or hazardous substance the firefighter may have been exposed to cause a disease or condition a firefighter later experiences. Soiza Decl. at 4.  To address these problems, the Legislature gave the benefit of the doubt to a firefighter suffering from a debilitating medical condition with the opportunity for the employer to rebut.”

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