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Waste: Biden's DOE Challenges Hanford Worker Compensation Law

Copyright © 2021 Energy Intelligence Group
Hanford Leak

The Biden administration is under pressure to drop its challenge to a state law making it easier for workers at the Hanford nuclear weapons legacy site to claim compensation for radiation and chemical exposure. This effort began under former President Donald Trump but continues under the current administration because of concerns that such claims could extend well into the next century and affect multiple Department of Energy (DOE) legacy sites across the country.

Responding to frustrated Hanford workers seeking compensation for work-related illnesses, lawmakers in Hanford's host state of Washington in January 2018 passed a law that makes it easier for them to qualify for federal benefits. The action was timely, as just months later, a DOE Inspector General report found the compensation program denied workers' chemical vapor exposure claims nearly 40% of the time. The report cited a process so burdensome, doctors began to "avoid claims related to vapor exposure," with one doctor calling the claims process “demeaning” and a source of “frustration.”

The DOE has over decades failed to adequately address the 54 million gallons of weapons-era legacy liquid waste stored in 177 underground storage tanks, 68 of which were assumed by the DOE as of September 2020 to be leaking. And because the DOE has since 2012 delayed the construction of a waste treatment plant to separate and treat the high-level waste (HLW), the agency has proposed reclassifying HLW to either low-level or transuranic waste to ease disposal costs — a plan the state opposes.

The DOE so far has only demonstrated HLW reclassification when it disposed of eight gallons of recycled and grouted wastewater from the Savannah River Site in South Carolina at a commercial low-level waste disposal facility in Texas. The moment the DOE moves to reclassify HLW at Hanford, Washington state — without action from the US Congress on the matter — is prepared to take swift legal action, having so far staved off the federal government's attempts to overturn its worker compensation law.

“There have been hundreds and hundreds of people exposed and many of them have had their health ruined permanently,” Hanford Challenge Executive Director Tom Carpenter told Energy Intelligence. While Carpenter hoped that under Biden the DOE would back off from its challenge to the state law, that didn't happen: “DOE is kind of impervious to change in administration. It’s the same with high-level waste.”

To justify leaving HLW tank farms in place, the DOE has to essentially "water down" environmental health standards, Carpenter added. This means that the agency would not, for example, use the organ-specific dose standard for HLW, which in the case of iodine would prescribe a limit to thyroid exposure, but a broader and less-prescriptive standard dose "to a representative member of the public."

And lacking any viable disposal route for the underground liquid waste, the DOE is attempting to transfer most of it (representing 99% of the radioactive and hazardous chemical waste, according to the agency) to newer double-shelled tanks, while mixing the remaining waste with grout and leaving the resulting sludge in place underground. So far this effort has been confined to some 16 tanks, with 1.8 million gallons of waste retrieved and moved to new tanks, and 62,000 gallons of waste left in the old tanks.

The DOE maintains it has authority to reclassify HLW under an October 2018 Federal Register notice and a 2001 DOE order (Order 435.1). But legal precedent doesn't necessarily work in the DOE's favor. In the last ruling on the matter, the Ninth Circuit District Court in 2004 reiterated its prior determination that the DOE order would “bypass the strictures" of the Nuclear Waste Policy Act to permanently dispose HLW in a repository, as mandated by Congress, and a 1985 determination by then-President Ronald Reagan that a separate repository for defense-level waste was not required.

Unless the Biden administration reverses course, it faces a similarly uncertain legal challenge to the effort by Washington state lawmakers to protect Hanford workers.

State Workers Law

Washington's 2018 worker compensation law allows that for anyone who has worked at least one eight-hour shift at Hanford and has any of a “wide range of illnesses that we know could be linked to tank vapors, such as chronic beryllium or respiratory or neurological diseases, there is an assumption that he or she became ill because of an exposure at work,” the Washington state attorney general's office said in a Sep. 14 statement. Under President Donald Trump, the federal government in December 2018 challenged the state law in the US District Court for the Eastern District of Washington, but in June 2019 it lost the case. Trump’s Department of Justice (DOJ) then appealed to the Ninth Circuit Court, which in August 2020 upheld the earlier court decision. This month, the DOJ, now under Biden, appealed the case to the US Supreme Court.

In response, 66 Washington state lawmakers penned an Oct. 6 letter to Biden, calling the appeal “distressing.” They added that prior to passage of the state law, “residents who suffer from terrible, painful, and debilitating diseases known to be linked to exposure of toxic chemicals were having well-documented difficulties overcoming objections from the federal contractor to access benefits.” Highlighting the breadth of the issue, the state's Department of Commerce conducted a survey of 1,200 Hanford workers to assess just how extensive exposure may have been, both short- and long-term. In a July report, the department reported more “than 57% of all current and former workers reported being in an exposure event. Over 32% of respondents indicated long-term exposure to hazardous materials.”

In its Supreme Court appeal, the DOJ argues that the state law discriminates against the federal government and violates the Supremacy Clause of the US Constitution because it “makes it far easier for current and former Hanford federal contract workers to obtain workers’ compensation benefits” and “exposes their employers — and by extension the US — to massive new costs that similarly situated state and private employers do not incur.” Citing state figures, the DOJ estimates the state law could significantly increase the number and cost of claims "potentially continuing into the 22nd century" with implications the court decisions will "extend well beyond the Hanford site," to other government sites.

But in the 2019 and 2020 court decisions upholding the state law, the courts concluded that federal law allows states to apply their own worker compensation laws to federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.” The state also has the presumption of causation since prior to the 2018 law, it expanded workers' compensation qualifications for firefighters, who had a similarly difficult time proving that job-related smoke inhalation, for example, caused respiratory illness to qualify for benefits.

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