Joint Appendix — United States, Petitioner v. Washington, et al.
Supreme Court briefFeb 23, 2022
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No. 21-404
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
STATE OF WASHINGTON, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOINT APPENDIX
ELIZABETH B. PRELOGAR
Solicitor General
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
Counsel of Record
for Petitioner
NOAH GUZZO PURCELL
Office of the Attorney General
1125 Washington Street S.E.
P.O. Box 40100
Olympia, WA 98504-0100
noahp@atg.wa.gov
(360) 753-6200
Counsel of Record
for Respondents
PETITION FOR A WRIT OF CERTIORARI FILED: SEPT. 8, 2021
CERTIORARI GRANTED: JAN. 10, 2022
TABLE OF CONTENTS
Page
Court of appeals docket entries (19-35673) ..................... 1
District court docket entries (4:18-cv-05189-SAB) ....... 12
Complaint (Dec. 10, 2018) ............................................... 28
Declaration of Gregory A. Jones (Mar. 1, 2019) ............ 42
Exhibit C: Memorandum of Understanding
between the U.S. Department of Energy
Richland Operations Office and the State
of Washington Department of Labor and
Industries (June 15, 2018) ..................................... 52
Declaration of Patricia Hicks (Mar. 1, 2019) ................. 60
Declaration of Christopher R. Healy (Mar. 1, 2019) ....... 74
Exhibit B: Individual State Agency Fiscal
Note (Feb. 5, 2018) ................................................. 76
Declaration of Joyce Tsuji (Mar. 22, 2019) ....................... 81
Declaration of Anne Soiza (Mar. 22, 2019) .................. 128
Declaration of Anastasia Sandstrom
(Mar. 22, 2019) ............................................................ 133
Exhibit 1: House Bill Report HB 1723 ................ 135
Declaration of James Nylander (Mar. 22, 2019) ......... 143
Declaration of Bruce Miller (Mar. 22, 2019) ................ 148
Declaration of Gary Franklin, MD Mar. 22, 2019) ........... 170
Declaration of Suzanne Lisa Dahl-Crumpler
(Mar. 22, 2019) .......................................................................... 177
Declaration of Tobin Mott (Apr. 12, 2019) .............................. 182
Declaration of Mark French (Apr. 12, 2019) .......................... 185
Supplemental Declaration of Patricia Hicks
(Apr. 12, 2019) ........................................................................... 189
Declaration of Kelly Wood (Apr. 26, 2019) ............................. 191
Declaration of Cheryl Whalen (Apr. 26, 2019) ....................... 194
Supplemental Declaration of Joyce Tsuji
(Apr. 26, 2019) ............................................................. 197
(I)
II
Table of Contents—Continued:
Page
Supplemental Declaration of Anne Soiza
(Apr. 26, 2019) ............................................................. 201
Excerpt of district court hearing transcript
(May 22, 2019)......................................................................... 204
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Case No. 19-35673
UNITED STATES OF AMERICA, PLAINTIFF
v.
STATE OF WASHINGTON; JAY ROBERT INSLEE, IN HIS
OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF
WASHINGTON; JOEL SACKS, IN HIS OFFICIAL CAPACITY
AS DIRECTOR OF THE WASHINGTON STATE
DEPARTMENT OF LABOR AND INDUSTRIES; WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES;
DEFENDANTS-APPELLEES
DOCKET ENTRIES
DATE
8/7/19
DOCKET
NUMBER PROCEEDINGS
1
DOCKETED CAUSE AND ENTERED APPEARANCES OF
COUNSEL. SEND MQ: Yes.
The schedule is set as follows:
Mediation Questionnaire due on
08/14/2019. Transcript ordered
by 09/06/2019. Transcript due
10/07/2019. Appellant United
States of America opening brief
due 11/15/2019. Appellees Jay
Robert Inslee, Joel Sacks, State
of Washington and Washington
State Department of Labor & Industries answering brief due
12/16/2019. Appellant’s optional
(1)
2
DATE
DOCKET
NUMBER PROCEEDINGS
reply brief is due 21 days after
service of the answering brief.
[11390273)
(HH)
[Entered:
08/07/2019 02:56 PM]
* * * * *
8/13/19
4
Filed (ECF) Appellant USA Mediation Questionnaire. Date of
service: 08/13/2019. [11396063]
[19-35673] (Koppel, John) [Entered: 08/13/2019 02:19 PM]
* * * * *
8/14/19
6
MEDIATION ORDER FILED:
The Mediation Program of the
9th Circuit Court of Appeals facilitates settlement while appeals
are pending. By 08/27/2019, counsel for all parties intending to file
briefs in this matter are requested to inform the Circuit Mediator
by email of their clients’ views on
whether the issues on appeal or
the underlying dispute might be
amenable to settlement presently
or in the foreseeable future. This
communication will be kept confidential, if requested . . . This
communication should not be
filed with the court . . . The
existing briefing schedule remains in effect . . . [11397086]
3
DATE
DOCKET
NUMBER PROCEEDINGS
(LW) [Entered:
12:36 PM]
08/14/2019
8/28/19
7
MEDIATION ORDER FILED:
This case is RELEASED from
the Mediation Program.
The
briefing schedule previously established by the court remains in
effect.
[11413212] (LW) [Entered 08/28/2019 10:21 AM]
11/15/19
8
Submitted (ECF) Opening Brief
for review. Submitted by Appellant USA.
Date of service:
11/15/2019. (11500621] (19-35673]
(Koppel,
John)
[Entered:
11/15/2019 01:18 PM]
11/15/19
9
Submitted (ECF) excerpts of record.
Submitted by Appellant
USA.
Date
of
service:
11/15/2019. (11500775] (19-35673]
(Koppel,
John)
[Entered:
11/15/2019 02:02 PM]
11/18/19
10
Filed clerk order: The opening
brief [8] and excerpts of record
[9] submitted by USA are filed.
No paper copies are required at
this time.
[11502392] (KWG)
[Entered: 11/18/2019 01:20 PM]
* * * * *
4
DATE
DOCKET
NUMBER PROCEEDINGS
1/15/20
13
Submitted (ECF) Answering Brief
for review. Submitted by Appellees Jay Robert Inslee, Joel
Sacks, State of Washington and
Washington State Department of
Labor & Industries. Date of
service: 01/15/2020. [11563343]
[19-35673]—[COURT UPDATE:
Attached corrected PDF of the
brief.
01/22/2020 by KWG]
(Sandstrom, Anastasia) [Entered: 01/15/20 12:08 PM]
1/15/20
14
Submitted (ECF) supplemental
excerpts of record. Submitted
by Appellees Jay Robert Inslee,
Joel Sacks, State of Washington
and Washington State Department of Labor & Industries.
Date of service:
01/15/2020.
[11563565] [19-35673] (Sandstrom, Anastasia) [Entered:
01/15/2020 01:46 PM]
1/22/20
15
Filed clerk order: The answering brief [13] submitted by Appellees is filed. The supplemental
excerpts of record [14] submitted
by Appellees are filed.
The Court previously filed the
brief [8] and excerpts of record
[9] submitted by Appellant USA.
5
DATE
DOCKET
NUMBER PROCEEDINGS
Within 7 days of this order, the
filer of each brief is ordered to file
6 copies of that brief in paper format, accompanied by certification (attached to the end of each
copy of the brief ) that the brief is
identical to the version submitted electronically. The Form 18
certificate is available on the
Court’s website at http://www.ca9.
uscourts.gov/forms/form18.pdf.
The covers of the opening brief
must be blue.
The covers of the answering brief
must be red.
Within 7 days of this order, the
filer of each set of excerpts of record is ordered to file 3 copies of
that set of excerpts in paper format securely bound on the left
side, with white covers.
The paper copies shall be submitted to the principal office of the
Clerk. The address for regular
U.S. mail is P.O. Box 193939, San
Francisco, CA 94119-3939. The
address for overnight mail is 95
Seventh Street, San Francisco,
CA 94103-1526.
[11569730]
6
DATE
DOCKET
NUMBER PROCEEDINGS
(KWG) [Entered:
10:11 AM]
01/22/2020
* * * * *
2/5/20
21
Submitted (ECF) Reply Brief for
review. Submitted by Appellant
USA.
Date of service:
02/05/2020.
[11586423] [1935673] (Koppel, John) [Entered:
02/05/2020 12:08 PM]
2/6/20
22
Filed clerk order: The reply
brief [21] submitted by USA is
filed. Within 7 days of the filing
of this order, filer is ordered to
file 6 copies of the brief in paper
format, accompanied by certification (attached to the end of each
copy of the brief ) that the brief is
identical to the version submitted
electronically.
Cover color:
gray. The paper copies shall be
submitted to the principal office
of the Clerk. [11587497] (KWG)
[Entered: 02/06/2020 09:40 AM]
* * * * *
3/12/20
25
Filed (ECF) Attorney Anastasia
R. Sandstrom for Appellees Jay
Robert Inslee, Joel Sacks, State
of Washington and Washington
State Department of Labor & Industries response to notice for
7
DATE
DOCKET
NUMBER PROCEEDINGS
case being considered for oral argument.
Date
of
service:
03/12/2020.
[11628118] [1935673] (Sandstrom, Anastasia)
[Entered: 03/12/2020 02:32 PM]
* * * * *
7/6/20
32
Filed Audio recording of oral argument.
Note:
Video recordings of public
argument calendars are available
on the Court’s website, at http://
www.ca9.uscourts.gov/media/
[11748222]
(SB)
[Entered:
07/10/2020 07:53 AM]
8/19/20
33
FILED OPINION (RICHARD
R. CLIFTON, MILAN D.
SMITH, JR. and JAMES DONATO) AFFIRMED.
Judge:
MDS
Authoring.
FILED
AND
ENTERED
JUDGMENT. [11794320] (MM)
[Entered: 08/19/2020 07:52 AM]
8/31/20
34
Filed (ECF) Appellees Jay Robert Inslee, Joel Sacks, State of
Washington and Washington
State Department of Labor & Industries bill of costs (Form 10) in
the amount of $155.20 USD.
Date of service: 08/31/2020
8
DATE
DOCKET
NUMBER PROCEEDINGS
[11807850] [19-35673] (Sandstrom, Anastasia) [Entered:
8/31/20/ 01:01 PM]
9/21/20
35
Filed (ECF) Appellant USA Motion to extend time to file petition
for rehearing until 11/02/2020.
Date of service:
09/21/2020.
[118304 76] [19-35673] (Koppel,
John) [Entered:
09/21/2020
10:35 AM]
* * * * *
11/2/20
37
Filed (ECF) Appellant USA petition for panel rehearing and petition for rehearing en banc (from
08/19/2020 opinion). Date of service: 11/02/2020. [11879415] [1935673] (Koppel, John) [Entered:
11/02/2020 02:30 PM]
11/24/20
38
Filed order (RICHARD R.
CLIFTON, MILAN D. SMITH,
JR. and JAMES DONATO) Defendants-Appellees are ordered
to file a response to PlaintiffAppellant's petition for panel rehearing or rehearing en banc,
filed with this court on November
2, 2020 (Dkt. [37]). The response
shall not exceed 20 pages, and
shall be filed within 21 days of the
date of this order. [11905497]
9
DATE
DOCKET
NUMBER PROCEEDINGS
(OC) [Entered: 11/24/2020 02:30
PM]
12/15/20
39
Filed (ECF) Appellees Jay Robert Inslee, Joel Sacks, State of
Washington and Washington
State Department of Labor & Industries response to Combo PFR
Panel and En Banc (ECF Filing),
Combo PFR Panel and En Banc
(ECF Filing). Date of service:
12/15/2020.
[11928775].
[1935673] (Sandstrom, Anastasia)
[Entered: 12/15/20 03:46 PM]
4/15/21
40
Filed order and amended opinion
(RICHARD R. CLIFTON, MILAN D. SMITH, JR. and
JAMES DONATO). The court's
opinion filed August 19, 2020, and
published at 971 F.3d 856 (9th
Cir. 2020), is hereby amended as
follows:
(SEE ORDER FOR
FULL TEXT).
An amended
opinion is filed concurrently with
this order. With this amendment, the panel has unanimously
voted to deny the petition for
panel rehearing.
(Dkt. [37])
Judge M. Smith votes to deny the
petition for rehearing en banc,
and Judge Clifton and Judge Donato so recommend. (Id.) The
10
DATE
DOCKET
NUMBER PROCEEDINGS
full court has been advised of the
petition for rehearing en banc
(Id.) A judge requested a vote
on whether to rehear the matter
en banc. The matter failed to receive a majority of the votes of
the nonrecused active judges in
favor of en banc reconsideration.
Fed. R. App. P. 35(f ). The petition for rehearing en banc is denied. No subsequent petitions
for panel rehearing or rehearing
en banc shall be permitted.
Judge M. Smith’s concurrence
with and Judge Collins’s dissent
from the denial of rehearing en
banc are filed concurrently herewith. [12075141] (AKM) [Entered: 04/15/2021 08:59 AM]
4/23/21
41
MANDATE ISSUED.
(RRC,
MDS and JD) Costs taxed against
Appellant in the amount of
$155.20. [12084735] (QDL) [Entered: 04/23/2021 10:42 AM]
9/20/21
42
Supreme Court Case Info
Case number: 21-404
Filed on: 09/08/2021
Cert Petition Action 1: Pending
[12232805]
(RR)
[Entered:
09/20/2021 10:15 AM]
11
DATE
1/12/22
DOCKET
NUMBER PROCEEDINGS
43
Supreme Court Case Info
Case number: 21-404
Filed on: 09/08/2021
Cert Petition Action 1: Granted,
01/10/2022
[12338718]
(RR)
[Entered:
01/12/2022 11:46 AM]
12
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
(RICHLAND)
Docket No. 4:18-cv-05189-SAB
UNITED STATES OF AMERICA, PLAINTIFF
v.
WASHINGTON STATE DEPARTMENT OF LABOR AND
INDUSTRIES; STATE OF WASHINGTON; JAY INSLEE,
IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE
OF WASHINGTON; JOEL SACKS, IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF THE WASHINGTON STATE
DEPARTMENT OF LABOR AND INDUSTRIES,
DEFENDANTS
DOCKET ENTRIES
DATE
12/10/18
DOCKET
NUMBER PROCEEDINGS
1
COMPLAINT against Jay Inslee,
Joel Sacks, State of Washington,
State of Washington Department
of Labor and Industries Fee
Waived Filed by United States of
America. (Attachments: # 1
Exhibit HB 1723, # 2 Exhibit
Hanford Map, # 3 Exhibit Map of
HB 1723 Areas, # 4 Civil Cover
Sheet) (Healy, Christopher) (Entered: 12/10/2018)
* * * * *
13
DATE
DOCKET
NUMBER PROCEEDINGS
12/11/18
2
NOTICE of Appearance by Anastasia Sandstrom on behalf of All
Defendants (Attorney Anastasia
Sandstrom added to party Jay
Inslee (pty:dft), Attorney Anastasia Sandstrom added to party Joel
Sacks (pty:dft), Attorney Anastasia Sandstrom added to party
State of Washington (pty:dft), Attorney Anastasia Sandstrom added to party Washington State Department of Labor and Industries
(pty:dft)) (Sandstrom, Anastasia)
(Entered: 12/11/2018)
12/13/18
7
Summons Issued as to Jay Inslee.
(Attachments: # 1 Summons Issued as to Washington State Department of Labor and Industries, # 2 Summons Issued as to
Joel Sacks, # 3 Summons Issued
as to State of Washington) (LR,
Case Administrator) (Entered:
12/13/2018)
1/9/19
8
ANSWER to Complaint by All
Defendants. (Sandstrom, Anastasia) (Entered: 01/09/2019)
1/10/19
9
MOTION to Stay in Light of
Lapse of Appropriations by
United States of America. Motion Hearing set for 2/11/2019
Without Oral Argument before
14
DATE
DOCKET
NUMBER PROCEEDINGS
Judge
Stanley
A
Bastian.
(Healy, Christopher) (Entered:
01/10/2019)
1/14/19
10
RESPONSE to Motion re 9 MOTION to Stay in Light of Lapse of
Appropriations filed by All Defendants. (Sandstrom, Anastasia) (Entered: 01/14/2019)
1/18/19
11
STATUS REPORT Regarding
Fed. R. Civ. Pro. 26(f ) Conference
by All Defendants. (Sandstrom,
Anastasia) (Entered: 01/18/2019)
1/28/19
12
MOTION to Withdraw 9 MOTION to Stay in Light of Lapse of
Appropriations, and Motion to
Continue Deadline for Rule 26(f )
Conference by United States of
America. Motion Hearing set for
2/27/2019 Without Oral Argument
before Judge Stanley A Bastian.
(Healy, Christopher) (Entered:
01/28/2019)
1/30/19
13
CERTIFICATE OF SERVICE
on all Defendants, by U.S. Marshal filed by United States of
America. (Healy, Christopher)
(Entered: 01/30/2019)
1/31/19
14
SCHEDULING
CONFERENCE NOTICE: A Telephonic
Scheduling Conference has been
15
DATE
DOCKET
NUMBER PROCEEDINGS
set for 4/18/2019 at 11:00 AM in via
Teleconference before Judge
Stanley A Bastian. To participate, parties must call the Court
Conference Line:
1-888-6363807; Access: 8839796; No security code will be required.
Please plan to call five minutes before the hearing. (Attachments:
# 1 Consent to Magistrate) (EC,
Courtroom Deputy) (Entered:
01/31/2019)
2/1/19
15
ORDER CONTINUING 26(F)
CONFERENCE, withdrawing 9
Motion to Stay; and granting 12
Motion to Withdraw. Signed by
Judge Stanley A Bastian. (LR,
Case Administrator) (Entered:
02/01/2019)
2/6/19
16
Joint MOTION agreed briefing
schedule, length of brief, stay of
status report, continuance of
scheduling conference re 15 Order on Motion to Stay, Order on
Motion to Withdraw, 14 Scheduling Conference Notice, by All Defendants. Motion Hearing set
for 2/14/2019 Without Oral Argument before Judge Stanley A Bastian.
(Sandstrom, Anastasia)
(Entered: 02/06/2019)
16
DATE
DOCKET
NUMBER PROCEEDINGS
2/12/19
17
ORDER GRANTING 16 PARTIES STIPULATED MOTION
RE: SCHEDULING ORDER.
Summary
Judgment
Motion
Hearing set for 5/8/2019 Without
Oral Argument before Judge
Stanley A Bastian. The status
conference
scheduled
for
4/18/2019
is
STRICKEN.
Signed by Judge Stanley A Bastian. (LR, Case Administrator)
(Entered: 02/12/2019)
2/15/19
18
Joint MOTION to Clarify Regarding Page Limits by United
States of America. Motion Hearing set for 2/22/2019 Without Oral
Argument before Judge Stanley A
Bastian.
(Healy, Christopher)
(Entered: 02/15/2019)
* * * * *
3/1/19
20
MOTION for Summary Judgment by United States of America.
Motion Hearing set for
5/22/2019 at 01:30 PM in Yakima
Courtroom 203 before Judge
Stanley A Bastian.
(Attachments: # 1 Exhibit Declaration
of Christopher R. Healy, # 2 Exhibit Declaration of Gregory A.
Jones, # 3 Exhibit Declaration of
17
DATE
DOCKET
NUMBER PROCEEDINGS
Patricia Hicks) (Healy, Christopher) Modified to change hearing
location from Richland to Yakima
on 3/5/2019 (EC, Courtroom Deputy). (Entered: 03/01/2019)
3/1/19
21
STATEMENT OF Undisputed
Material FACTS re 20 MOTION
for Summary Judgment filed by
United States of America.
(Healy, Christopher) (Entered:
03/01/2019)
3/18/19
22
NOTICE of Appearance by Noah
G Purcell on behalf of All Defendants (Attorney Noah G Purcell
added to party Jay Inslee
(pty:dft), Attorney Noah G Purcell added to party Joel Sacks
(pty:dft), Attorney Noah G Purcell added to party State of Washington (pty:dft), Attorney Noah G
Purcell added to party Washington State Department of Labor
and Industries (pty:dft)) (Purcell,
Noah) (Entered: 03/18/2019)
3/22/19
23
Cross MOTION for Summary
Judgment and Response to Plaintiff ’s Motion for Summary Judgment by All Defendants. Motion
Hearing set for 5/22/2019 at 01:30
PM in Yakima Courtroom 203 before Judge Stanley A Bastian.
18
DATE
DOCKET
NUMBER PROCEEDINGS
(Attachments: # 1 Text of Proposed Order Proposed Order)
(Sandstrom, Anastasia) Modified
on 5/2/2019 to change hearing location from Richland to Yakima
(EC, Courtroom Deputy). (Entered: 03/22/2019)
3/22/19
24
DECLARATION by Suzanne
Lisa Dahl-Crumpler in Support re
23 Cross MOTION for Summary
Judgment and Response to Plaintiff ’s Motion for Summary Judgment filed by All Defendants.
(Sandstrom, Anastasia) (Entered:
03/22/2019)
3/22/19
25
DECLARATION by Gary Franklin, MD in Support re 23 Cross
MOTION for Summary Judgment and Response to Plaintiff ’s
Motion for Summary Judgment
filed by All Defendants. (Sandstrom,
Anastasia)
(Entered:
03/22/2019)
3/22/19
26
DECLARATION by Bruce Miller
in Support re 23 Cross MOTION
for Summary Judgment and Response to Plaintiff ’s Motion for
Summary Judgment filed by All
Defendants. (Sandstrom, Anastasia) (Entered: 03/22/2019)
19
DATE
DOCKET
NUMBER PROCEEDINGS
3/22/19
27
DECLARATION
by
James
Nylander in Support re 23 Cross
MOTION for Summary Judgment and Response to Plaintiff ’s
Motion for Summary Judgment
filed by All Defendants. (Attachments: # 1 Exhibit 1) (Sandstrom,
Anastasia)
(Entered:
03/22/2019)
3/22/19
28
DECLARATION by Anastasia
Sandstrom in Support re 23 Cross
MOTION for Summary Judgment and Response to Plaintiff ’s
Motion for Summary Judgment
filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Sandstrom,
Anastasia)
(Entered:
03/22/2019)
3/22/19
29
DECLARATION by Anne Soiza
in Support re 23 Cross MOTION
for Summary Judgment and Response to Plaintiff ’s Motion for
Summary Judgment filed by All
Defendants. (Sandstrom, Anastasia) (Entered: 03/22/2019)
3/22/19
30
DECLARATION by Joyce Tsuji
in Support re 23 Cross MOTION
for Summary Judgment and Response to Plaintiff ’s Motion for
Summary Judgment filed by All
20
DATE
DOCKET
NUMBER PROCEEDINGS
Defendants.
(Attachments:
# 1 Exhibit 1 (1 of 2), # 2 Exhibit
1 (2 of 2), # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit
5, # 7 Exhibit 6) (Sandstrom, Anastasia) (Entered: 03/22/2019)
3/22/19
31
STATEMENT OF Disputed
FACTS re 23 Cross MOTION for
Summary Judgment and Response to Plaintiff ’s Motion for
Summary Judgment filed by All
Defendants. (Sandstrom, Anastasia) (Entered: 03/22/2019)
3/22/19
32
STATEMENT OF Non-Disputed
FACTS re 23 Cross MOTION for
Summary Judgment and Response to Plaintiff ’s Motion for
Summary Judgment filed by All
Defendants. (Sandstrom, Anastasia) (Entered: 03/22/2019)
* * * * *
4/12/19
33
MEMORANDUM in Opposition
re 20 MOTION for Summary
Judgment, 23 Cross MOTION for
Summary Judgment and Response
to Plaintiff ’s Motion for Summary
Judgment and Reply filed by
United States of America. (Attachments: # 1 Exhibit Declaration of Tobin Mott, # 2 Exhibit
21
DATE
DOCKET
NUMBER PROCEEDINGS
Declaration of Mark French, # 3
Exhibit Supplemental Declaration of Patricia Hicks, # 4 Statement of Disputed Facts, # 5 Reply Statement of Undisputed
Facts) (Healy, Christopher) (Entered: 04/12/2019)
4/26/19
34
REPLY MEMORANDUM re 23
Cross MOTION for Summary
Judgment and Response to Plaintiff ’s Motion for Summary Judgment filed by All Defendants.
(Sandstrom, Anastasia) (Entered:
04/26/2019)
4/26/19
35
DECLARATION by Supplemental Declaration of Anne Soiza
in Support re 23 Cross MOTION
for Summary Judgment and Response to Plaintiff ’s Motion for
Summary Judgment filed by All
Defendants. (Sandstrom, Anastasia) (Entered: 04/26/2019)
4/26/19
36
DECLARATION by Supplemental Declaration of Joyce Tsuji
in Support re 23 Cross MOTION
for Summary Judgment and Response to Plaintiff ’s Motion for
Summary Judgment filed by All
Defendants.
(Attachments:
22
DATE
DOCKET
NUMBER PROCEEDINGS
# 1 Exhibit Exhibit 1) (Sandstrom,
Anastasia)
(Entered:
04/26/2019)
4/26/19
37
DECLARATION
by
Cheryl
Whalen in Support re 23 Cross
MOTION for Summary Judgment and Response to Plaintiff ’s
Motion for Summary Judgment
filed by All Defendants. (Sandstrom,
Anastasia)
(Entered:
04/26/2019)
4/26/19
38
DECLARATION by Kelly Wood
in Support re 23 Cross MOTION
for Summary Judgment and Response to Plaintiffs Motion for
Summary Judgment filed by All
Defendants. (Sandstrom, Anastasia) (Entered: 04/26/2019)
4/26/19
39
STATEMENT OF Reply re
State’s Undisputed FACTS re 23
Cross MOTION for Summary
Judgment and Response to Plaintiff ’s Motion for Summary Judgment filed by All Defendants.
(Sandstrom, Anastasia) (Entered:
04/26/2019)
5/10/19
40
NOTICE by United States of
America Regarding Amendment
to HB 1723 (Healy, Christopher)
(Entered: 05/10/2019)
23
DATE
DOCKET
NUMBER PROCEEDINGS
5/22/19
41
Minute Entry for proceedings
held before Judge Stanley A Bastian: Motion Hearing held on
5/22/2019 re 20 MOTION for
Summary Judgment filed by
United States of America, 23
Cross MOTION for Summary
Judgment and Response to Plaintiff ’s Motion for Summary Judgment filed by Joel Sacks, Washington State Department of Labor and Industries, Jay Inslee,
State of Washington. (Reported/
Recorded by: Kimberly Allen)
(ES, Courtroom Deputy) (Entered: 05/22/2019)
6/5/19
42
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion
Hearing. Proceedings held on
May 22, 2019 in Yakima, Washington before Judge Stanley A Bastian. Page Numbers: 1-60
Parties have seven (7) business
days to file with the court a Notice
of Intent to Request Redaction of
this transcript. If no such Notice
is filed, the transcript may be
made remotely electronically available to the public without redaction after 90 calendar days.
24
DATE
DOCKET
NUMBER PROCEEDINGS
Transcript may be viewed at the
court public terminal or purchased
through the Court Reporter/
Transcriber before the deadline
for Release of Transcript Restriction. After that date it may
be obtained through PACER.
Information regarding the policy
can be found on the court website
at www.waed.uscourts.gov.
To purchase a copy of the transcript contact Court Reporter/
Transcriber Kimberly Allen at
509-943-8175 or Kim_Allen@waed.
uscourts.gov.
Redaction Request due 6/26/2019. Redacted
Transcript Deadline set for
7/8/2019. Release of Transcript
Restriction set for 9/3/2019.
(Allen, Kim) Modified on 6/7/2019
(Allen, Kim) Modified Date of
Proceedings from May 29th, 2019
to May 22nd, 2019. (Entered:
06/05/2019)
6/13/19
43
ORDER GRANTING 23 DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT; denying 20 Plaintiff ’s Motion for Summary Judgment. Case is closed.
25
DATE
DOCKET
NUMBER PROCEEDINGS
Signed by Judge Stanley A Bastian. (AY, Case Administrator)
(Entered: 06/13/2019)
6/13/19
44
JUDGMENT IN A CIVIL ACTION; in favor of Defendants and
against Plaintiff. (AY, Case Administrator)
(Entered:
06/13/2019)
8/7/19
45
LODGED NOTICE OF APPEAL
to the United States Court of Appeals for Ninth Circuit from District Court decision as to 44
Clerk’s Judgment, 43 Order on
Motion for Summary Judgment,
by United States of America.
Filing fee $505, receipt number
WAIVED. (Healy, Christopher)
(Entered: 08/07/2019)
8/7/19
46
NOTICE OF APPEAL from District Court decision as to 44
Clerk’s Judgment and 43 Order
on Motion for Summary Judgment.
cc:
Court Reporter:
Kimberly Allen. (SG, Case Administrator).
(Entered:
08/07/2019)
8/7/19
47
9CCA Payment Notification form
re 46 Notice of Appeal; Fee
Waived. (SG, Case Administrator). (Entered: 08/07/2019)
26
DATE
DOCKET
NUMBER PROCEEDINGS
8/7/19
48
Letter from Appeal Deputy Clerk
to Christopher R. Healy dated
August 7, 2019. (Attachments:
# 1 Notice of Appeal, # 2 Docket
Sheet) (SG, Case Administrator)
(Entered: 08/07/2019)
8/7/19
49
9CCA Appeal Time Schedule and
Case Number: 19-35673 for 46
Notice of Appeal filed by Christopher R. Healy. Designation Due:
9/6/2019.
Transcript
Due:
10/7/2019.
Opening Brief Due:
11/15/2019. Appellees Brief Due:
12/16/2019. Mediation Questionnaire Due: 8/14/2019. cc: Court
Reporter:
Kimberly Allen.
(SG, Case Administrator) (Entered: 08/07/2019)
9/3/19
50
TRANSCRIPT DESIGNATION
of Record on Appeal by United
States of America re 46 Notice of
Appeal.
Date Appeal Filed:
8/7/19. Court Reporter: Kimberly Allen,. 9CCA: 19-35673.
(Healy, Christopher) (Entered:
09/03/2019)
8/19/20
51
9CCA Slip Opinion: Decision of
the District Court is Affirmed.
9CCA Case No. 19-35673. (SG,
Case Administrator) (Entered:
08/19/2020)
27
DATE
DOCKET
NUMBER PROCEEDINGS
11/24/20
52
COPY OF 9CCA ORDER as to 46
Notice of Appeal filed by United
States of America.
9CCA:
19-35673. (LTR, Case Administrator) (Entered: 11/24/2020)
4/15/21
53
COPY OF 9CCA ORDER AND
AMENDED OPINION as to 46
Notice of Appeal filed by United
States of America.
9CCA:
19-35673. (SG, Case Administrator) (Entered: 04/15/2021)
4/23/21
54
MANDATE from 9CCA as to 46
Notice of Appeal filed by United
States of America. Decision of
the District Court is Affirmed.
9CCA: 19-35673. (SG, Case Administrator) (Entered: 04/23/2021)
9/20/21
55
Letter from Supreme Court: The
Petition for a writ of certiorari
was filed on September 8, 2021
and placed on the docket September 14, 2021 as No. 20-404. 9CCA
No. 19-35673. (SG, Case Administrator) (Entered: 09/20/2021)
1/12/22
56
Letter from the Supreme Court to
the Ninth Circuit was received, indicating that a petition for a writ
of certiorari is granted.
(SG,
Case Administrator) (Entered:
01/13/2022)
28
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
No. [4:18-cv-05189-SAB]
UNITED STATES OF AMERICA, PLAINTIFF
v.
STATE OF WASHINGTON; JAY INSLEE, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF THE STATE OF WASHINGTON;
WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES; JOEL SACKS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE WASHINGTON STATE DEPARTMENT OF
LABOR & INDUSTRIES, DEFENDANTS
Filed: Dec. 10, 2018
COMPLAINT
Plaintiff the United States of America alleges as follows:
INTRODUCTION
1.
The State of Washington (“State” or “Washington”)
has enacted a workers’ compensation law, entitled
“Hanford Site Employees—Occupational Disease
Presumption,” or Washington Substitute House Bill
1723 (“HB 1723”), attached hereto as Ex. A, that impermissibly singles out and discriminates against
the Federal Government and its contractors, purports to directly regulate the Federal Government,
and imposes significant burdens on the Federal
Government and its contractors without imposing
them on other employers in the State, all in violation
29
of the Supremacy Clause of the U.S. Constitution.
This action seeks to enjoin implementation of this
improper statute and have it declared invalid.
2.
The U.S. Department of Energy (“DOE”) is responsible for the remediation of the environmental legacy of the United States’ production of nuclear
weapons, including that of its chief plutonium production facility—the Hanford Nuclear Reservation
(“Hanford”) in southeast Washington, which played
a critical role in the United States’ national defense
from World War II through the end of the Cold
War. Nearly all of Hanford is owned by the Federal Government.
3.
Hanford’s large-scale production of critical national
defense materials for the Federal Government generated a significant amount of radioactive and hazardous chemical wastes, which are now the focus of
ongoing cleanup work that is unprecedented in its
scale and complexity.
4.
DOE’s top priority in conducting its cleanup operations at Hanford is ensuring the health and safety of
its federal and contractor workforce. Protecting
workers includes ensuring that any worker who is
injured in the course of his or her employment or
who falls ill because of such employment is fully and
expeditiously compensated. DOE is firmly committed to, and spends significant resources implementing, its worker safety and workers’ compensation programs at Hanford. The workers’ compensation program for DOE’s federal contractor workforce at Hanford operates pursuant to the Washington Industrial Insurance Act (“WIIA”).
30
5.
HB 1723 interferes with these ongoing federal operations by fundamentally changing how the WIIA
applies to federally owned and operated portions of
Hanford but not to anywhere else in the State. Specifically, the law creates a legal presumption that
past, current, and future “United States [D]epartment of [E]nergy Hanford site workers,” as defined
under the law, are entitled to workers’ compensation benefits if they develop certain diseases or conditions without having to demonstrate, as the WIIA
otherwise requires, that their conditions were more
likely than not caused by their employment at Hanford.
6.
The resulting heightened liability for workers’ compensation, and attendant costs, that HB 1723 imposes
on DOE and its contractors are not imposed on
other employers elsewhere at Hanford or elsewhere
in the State. This impermissible discrimination
against the Federal Government and its contractors
and purported direct regulation of the Federal Government violate the Supremacy Clause.
7.
The United States thus brings this action against
Washington, the Governor of Washington, the Washington Department of Labor and Industries (“L&I”),
and the Director of L&I (collectively, “Defendants”)
for a judgment declaring that HB 1723 is invalid under the Supremacy Clause, and for an injunction
against its enforcement.
JURISDICTION
8.
This is a civil action brought by the United States
under the Constitution of the United States, U.S.
31
Const. art. VI, cl. 2, seeking declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2201, and
Federal Rules of Civil Procedure 57 and 65. This
Court has subject matter jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1345.
VENUE
9.
Venue is proper in this District pursuant to 28
U.S.C. § 1391(b) because Hanford is located within
this District.
PARTIES
10. Plaintiff is the United States of America, suing on
its own behalf and on behalf of DOE.
11. DOE is a federal executive department charged by
Congress with completing the safe cleanup of the
environmental legacy brought about from five decades of nuclear weapons development at Hanford.
12. Defendant Washington is a State of the United
States.
13. Defendant Jay Inslee is the Governor of Washington. He is sued in his official capacity.
14. Defendant L&I is the state agency responsible for
implementing the WIIA, Revised Code of Washington (“RCW”) Title 51.
15. Defendant Joel Sacks is the Director of L&I.
is sued in his official capacity.
He
32
CONSTITUTIONAL AND STATUTORY BACKGROUND
The Supremacy Clause of the U.S. Constitution
16. The Supremacy Clause of the U.S. Constitution provides: “This Constitution, and the Laws of the
United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the
Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.” U.S.
Const. art. VI, cl. 2.
17. The doctrine of intergovernmental immunity holds
that “[u]nder the Supremacy Clause, ‘the activities
of the Federal Government are free from regulation
by any state.’ ” Boeing Co. v. Movassaghi, 768 F.3d
832, 839 (9th Cir. 2014) (quoting Mayo v. United
States, 319 US 441, 445 (1943)). A state law is invalid if it “regulate[s] the United States directly,” or
if it “discriminate[s] against the Federal Government or those with whom it deals,” that is, if it
“treats someone else better than it treats the government.” Boeing, 768 F.3d at 839, 842.
The WIIA
18. The WIIA is the State’s statutory regime for industrial insurance. It provides that a worker who sustains an injury or contracts an “occupational disease,” will be compensated through the payment of
certain benefits. An “occupational disease” is defined as “such disease or infection as arises naturally and proximately out of employment under the
mandatory or elective adoption provisions of this title.” RCW 51.08.140.
33
19. To be eligible to receive benefits under the WIIA, a
worker generally has the burden of establishing
that (1) he or she has a physical condition and (2)
there is a “causal connection between” his or her
physical condition and employment based on competent medical testimony which shows that the disease is probably, as opposed to possibly, caused by
the employment. Dennis v. Dep’t of Labor & Indus. of State of Wash., 109 Wash.2d 467, 477 (Wash.
1987). A claim for an “occupational disease” is generally subject to a two-year statute of limitations.
RCW 51.28.055.
20. The WIIA requires that all employers covered by
the Act provide workers’ compensation coverage.
Employers may do so by participating in the Washington State Fund (“State Fund”), which is an insurance pool funded by employer premiums and
managed and administered by L&I, or employers
may do so by qualifying as a self-insurer. RCW
51.14.010; 51.14.030. A self-insured employer provides workers compensation benefits directly to its
employees rather than through the State Fund.
See RCW 51.08.173.
Workers’ Compensation at Hanford
21. Federal law provides for a limited waiver of the
Federal Government’s intergovernmental immunity for state workers’ compensation laws, such that
States may enforce their workers’ compensation
laws against private employers working on federal
land, “in the same way and to the same extent as if
the premises were under the exclusive jurisdiction
34
of the State.” 40 U.S.C. § 3172. Non-federal employees at Hanford consequently receive workers’
compensation coverage through the WIIA. 1
22. As a certified self-insurer under the WIIA, DOE
provides workers’ compensation coverage directly
to the majority of federal contractor employees at
Hanford. Specifically, pursuant to a Memorandum
of Understanding between DOE and L&I (“MOU”),
DOE serves as the “statutory employer” for the employees of certain Hanford contractors, including
six of its current prime contractors and seven of
their subcontractors. Together these contractors
employ the majority of the approximately 10,000
current employees of DOE contractors at Hanford.
The MOU also covers the employees of sixty-one
contractors and subcontractors that previously performed work for the Federal Government at Hanford.
23. DOE thus has assumed responsibility for providing
workers’ compensation coverage for these contractor employees. L&I provides oversight of the selfinsurance process and retains final authority as to
the allowance of their workers’ compensation claims.
When L&I approves a claim of a contractor employee covered by the MOU, DOE pays the benefits.
24. Hanford contractors not covered by the MOU provide workers’ compensation coverage to their employees either through the State Fund or as selfWorkers’ compensation claims for federal employees are administered pursuant to the Federal Employees’ Compensation Act
(“FECA”, 5 U.S.C. § 8103 et seq.). FECA does not cover nonfederal employees at Hanford.
1
35
insurers. Because workers’ compensation costs
are considered “allowable” under federal acquisition regulations—which are incorporated into DOE
contracts—these contractors will likely be reimbursed by DOE for such costs.
Workers’ Compensation Claims Processing at Hanford
25. DOE contracts with a third-party administrator—
currently Penser North America, Inc.—that manages workers’ compensation claims on behalf of
DOE, and pays benefits for contractors covered under the MOU.
26. Penser reviews a submitted claim, gathers relevant
employment and medical information, and recommends that L&I either approve or deny the claim.
L&I then issues an order approving or denying the
claim. Penser administers approved claims and
pays appropriate benefits consistent with the L&I
order. Either the worker or DOE may contest an
L&I order through the administrative appeals process, including further review by L&I and the
Washington Board of Industrial Insurance Appeals,
subject to judicial review in state court.
27. Since 2009, DOE has paid nearly $116 million in
workers’ compensation benefits to employees of
Hanford contractors covered by the MOU.
HB 1723
28. HB 1723 was signed into law by Defendant Inslee
on March 7, 2018, and became effective, as a matter
of State law, on June 7, 2018. It has been codified
at RCW 51.32.187.
36
29. HB 1723 amends the WIIA by creating a “prima facie presumption” for “[D]epartment of [E]nergy
Hanford site workers” that certain defined illnesses
are “occupational diseases” within the meaning of
RCW 51.08.140. HB 1723 Sec. 1.(2)(a).
30. “United States [D]epartment of [E]nergy Hanford
site workers” are defined as “any person, including
a contractor or subcontractor, who was engaged in
the performance of work, either directly or indirectly, for the United States, regarding projects and
contracts at the Hanford nuclear site and who
worked on the site at the two hundred east, two hundred west, three hundred area, environmental restoration disposal facility site, central plateau, or the
river corridor locations for at least one eight-hour
shift while covered under this title.” HB 1723 Sec.
1.(1)(b). The vast majority of federal contractor
employees at Hanford have worked, and continue to
work, in these areas.2
31. HB 1723 facially applies to federally owned and operated portions of Hanford, specifically excluding
leased land and state-owned land located within
Hanford’s boundaries.
32. Any covered Hanford worker—past, present, or future; living or deceased—who worked a single
eight-hour shift in a covered area, and thereafter
suffers from one of potentially hundreds of covered
illnesses, can avail themselves of HB 1723’s presumption of entitlement to workers’ compensation.
A detailed map of Hanford, and a second map illustrating the areas referenced in the law, are attached as Exhibits B and C.
2
37
33. HB 1723 eliminates the two-year statute of limitations on claims contained in RCW 51.28.05 because
the presumption extends to all workers’ compensation claims filed after June 7, 2018, “without regard
to the date of last injurious exposure or claim filing,”
and also “extends to an applicable . . . site
worker following termination of service for the lifetime of that individual.” HB 1723 Sec. 1.(5)(c), (a).
“A worker or the survivor of a worker who has died
as a result of one of the [covered] conditions or diseases . . . , and whose claim was denied by order
of [L&I], the board of industrial insurance appeals,
or a court, can file a new claim for the same exposure and contended condition or disease.” HB 1723
Sec. 1.(5)(b).
34. HB 1723’s covered illnesses include common and
broadly defined ailments, such as “respiratory disease” and “neurological disease,” as well as “[a]ny
heart problems, experienced within seventy-two
hours of exposure to fumes, toxic substances, or
chemicals at the site;” “[c]ancer, subject to” certain
limitations defined elsewhere in the law; and “[b]eryllium sensitization, and acute and chronic beryllium
disease.” HB 1723 Sec. 1.(3), (4).
35. The presumption in HB 1723 may be rebutted only
“by clear and convincing evidence,” including “use
of tobacco products, physical fitness and weight, lifestyle, hereditary factors, and exposure from other
employment or nonemployment activities.” HB
1723 Sec. 1.(2)(b).
36. If a final decision allowing a claim for benefits under
the presumption is appealed and upheld, the board
38
or court “shall order that all reasonable costs of appeal, including attorneys’ fees and witness fees, be
paid to the worker or his or her beneficiary by the
opposing party.” HB 1723 Sec. 1.(6)(a), (b).
Discriminatory Scope of HB 1723
37. HB 1723 discriminates on its face against the Federal Government and those with whom it deals, because the law only applies to the federally owned
and operated portions of Hanford, excluding on-site
areas leased to non-federal entities, and to “United
States [D]epartment of [E]nergy Hanford site
workers.”
38. HB 1723 also discriminates against the Federal Government because it subjects DOE’s contractors at
Hanford 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.
39. HB 1723 discriminates against the Federal Government and its contractors because other employers
in the State whose workers conduct the same jobs
as Hanford employees are not subject to the presumption, and because other employers that operate at Hanford, even in the areas covered by the law,
are not subject to the presumption.
Direct Regulation of DOE
40. By imposing on DOE a clear-and-convincing standard of proof to overcome the presumption, HB 1723
directly regulates the Federal Government by effectively requiring DOE to cover certain ailments
39
under the WIIA, including those commonly occurring in the general population, whether or not those
ailments were caused by employment at Hanford.
41. That burden is compounded by HB 1723’s seemingly indefinite coverage period. The presumption
allows any past or present Hanford worker, or the
survivor of a deceased worker, to refile a claim that
was previously denied.
42. HB 1723 thereby imposes significant costs on DOE
and its contractors to process and manage the additional claims submitted under HB 1723.
CLAIMS FOR RELIEF
Violation of Intergovernmental Immunity
Discrimination
43. The United States incorporates by reference the allegations in Paragraphs 1 to 42.
44. HB 1723 discriminates against the Federal Government and those with whom it deals because it singles
out DOE, its contractors, and the federally owned
and operated portions of Hanford for a substantially
more burdensome and costly workers’ compensation scheme than is generally applicable to employers in the State. Specifically, HB 1723 imposes enhanced liability for workers’ compensation claims,
and its attendant significant compliance costs, exclusively on DOE and its contractors notwithstanding that other employers operate in the same physical areas at Hanford, and that employees throughout the State conduct many of the same jobs as
those conducted in the covered areas.
40
45. HB 1723’s discrimination violates the Federal Government’s intergovernmental immunity guaranteed
by the Supremacy Clause.
Violation of Intergovernmental Immunity
Direct Regulation
46. The United States incorporates by reference the allegations in Paragraphs 1 to 45.
47. HB 1723 directly regulates the Federal Government by imposing unique workers’ compensation
obligations on DOE not caused by employment at
Hanford, and imposing their attendant significant
compliance costs.
48. HB 1723’s direct regulation of the Federal Government violates the intergovernmental immunity
guaranteed by the Supremacy Clause.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff United States of America
prays that the Court:
(a) Declare, pursuant to 28 U.S.C § 2201, that HB
1723 is invalid under the Supremacy Clause of
the United States Constitution, both on its face
and as applied to the Federal Government and
those with whom it deals;
(b) Permanently enjoin enforcement of HB 1723
against the Federal Government and those with
whom it deals, pursuant to 28 U.S.C § 2202, and
Federal Rules of Civil Procedure 57 and 65;
(c) Award the Federal Government its costs of suit;
and
41
(d) Order such other and further relief as the Court
deems just and proper.
RESPECTFULLY SUBMITTED: Dec. 10, 2018
JOSEPH H. HUNT
Assistant Attorney General
JAMES J. GILLIGAN
Acting Branch Director
JACQUELINE COLEMAN SNEAD
Assistant Branch Director
/s/
CHRISTOPHER R. HEALY
CHRISTOPHER R. HEALY (DC Bar 219460)
Trial Attorney
United Stated Department of Justice
Civil Division, Federal Programs Branch
1100 L St. NW
Washington, D.C. 20005
Tel: (202) 514-8095
Fax: (202) 616-8470
E-Mail: Christopher.Healy@usdoj.gov
Attorneys for the United States of America
42
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
No. 4:18-cv-05189
UNITED STATES OF AMERICA, PLAINTIFF
v.
STATE OF WASHINGTON, ET AL., DEFENDANTS
DECLARATION OF GREGORY A. JONES
I, Gregory Jones, declare as follows:
1) I am currently employed by the United States
Department of Energy (“DOE”), Richland Operations
Office (“RL”) as the Assistant Manager for Business
and Financial Operations and have held this position
since 2007. I am also the Chief Financial Officer for the
Hanford Nuclear Reservation (“Hanford site” or “Hanford”), which includes RL and the Office of River Protection (“ORP”) and have been since 2007.
2) In these roles, I oversee the RL Procurement
Division, which is responsible for administering the
prime contracts at Hanford, as well as the financial aspects of the Hanford workers’ compensation program.
I have worked as a DOE employee at either ORP or RL
since 1995. Through my current position, I am familiar
with the scope of contract work being performed in particular areas at the Hanford site and the Hanford workforce. I am also familiar with the types of non-federal
work occurring on the Hanford site due to required in-
43
teraction between Hanford federal contractors, particularly the contractor responsible for infrastructure, and
the entities that lease land from DOE.
3) I am providing this declaration in support of the
United States’ Motion for Summary Judgment. The
statements herein are based on my personal knowledge,
and my review and consideration of information available to me in my official capacity.
Hanford Site Geography and HB 1723
4) The United States owns and operates the Hanford site, which is located near Richland in southeastern
Washington State. Hanford’s large-scale production
of critical defense materials, namely plutonium, for the
Federal Government generated a significant amount of
radioactive and hazardous chemical waste. Presently,
DOE and its contractors are engaged in a massive
cleanup operation unprecedented in scale and complexity to remediate the site and protect human health and
the environment.
The 200 Areas and the Central Plateau
5) ORP’s mission is to address and remediate the
chemical and radioactive waste stored in dozens of massive underground tanks, known as “tank farms.” The
office is responsible for the retrieval, treatment, and disposal of this waste in a safe, efficient manner. One of
its contractors is building a Waste Treatment Plant to
process waste from the tank farms to facilitate permanent disposal. ORP carries out its mission in and near
the 200 Areas of the site. RL is responsible for cleaning up the facilities, groundwater, and waste sites in the
200 Areas outside of the tank farms. The 200 Areas are
included in the 75-square-miles of the Hanford site
44
known as the Central Plateau. I have attached a general map of Hanford, as well as a map that highlights
areas/facilities noted in HB 1723, as Exhibits A and B
respectively. The maps have been produced by DOE
cartographical staff and accurately reflect the geography of the site.
The 300 Area, River Corridor, and Environmental
Restoration Disposal Facility (ERDF)
6) RL’s mission is to clean up the remainder of
Hanford, provide necessary infrastructure, and restore
land for future access and use. RL’s focus for the last
decade-plus has been to clean up the 220-mile River Corridor, which includes former nuclear fuel fabrication facilities in the 300 Area and nine former plutonium production reactors in the 100 Areas along the Columbia
River. The cleanup of the River Corridor primarily involves treatment of groundwater, decontamination, decommissioning, and demolition of contaminated facilities, and transport of debris and soil from waste sites to
ERDF. ERDF is a massive landfill between the 200
East and 200 West Areas that accepts low-level radioactive, hazardous, and mixed waste generated during remediation activities from building demolitions and solid
waste burial ground excavations at Hanford.
Leased, State-Owned, and Bonneville Power Administration Land
7) Entities operating on leased land at Hanford include the US Ecology Commercial Low-Level Radioactive Waste Disposal Facility, Energy Northwest, and
the Laser Interferometer Gravitational Wave Observatory (“LIGO”). The map attached as Exhibit B, titled
45
“HB 1723 at Hanford,” identifies the locations of these
entities.
8) US Ecology is a privately-owned facility that receives waste from several Western states and disposes
of this radioactive waste on the Hanford site. It is located on 100 acres of DOE land leased to the State of
Washington, which subleases the land to US Ecology,
between the 200 East and West Areas on the Central
Plateau.
9) Energy Northwest is a joint operating agency of
the State of Washington that owns and operates electricity generating facilities, one of which is the Columbia
Generating Station, Washington’s only operational commercial nuclear power plant. The station produces nuclear energy on land leased from DOE in the River Corridor.
10) LIGO was built on land leased from DOE in the
River Corridor. It is a scientific laboratory operated
by Caltech and the Massachusetts Institute of Technology, with support from the National Science Foundation, devoted to the study of gravitational-wave astrophysics.
11) The only state-owned land on Hanford is a one
square mile undeveloped parcel that DOE transferred
to the State of Washington several decades ago. It is
located in the River Corridor.
12) The Bonneville Power Administration, which is
a federal power marketing administration and part of
DOE, has several power substations on the Hanford
Site, most of which are located in the River Corridor.
46
Hanford’s Workforce
13) After the passage of HB 1723, I was part of a RL
working group that attempted to estimate the cost of the
new law on DOE. In order to estimate the financial impact of the law, the group attempted to estimate the total number of contract workers who had worked at least
one eight-hour shift at the Hanford site. In my capacity as part of that working group, I reviewed a number
of government-sponsored documents that measured the
contract workforce populations at various periods in
Hanford’s history as well as more recent government
documents measuring the workforce population at Hanford. I estimate, conservatively, that more than 100,000
contractor employees have worked at least one eighthour shift at Hanford over the time of its existence.
14) A relatively small federal workforce of about 400
DOE employees manages contracts and provides oversight of work performed by the thousands of contractor
employees at Hanford. Hanford contractors employ a
wide array of professionals, some of whom do the cleanup work and others who do administrative and other
non-hazardous work common throughout numerous industries. Among the hundreds of Hanford job types,
there are radiation technicians, construction workers,
security guards, office personnel, regulatory analysts,
biologists, nuclear chemical operators, and janitors.
Each employee is a contractor for the Federal Government, performing a federal function, on federally owned
and operated land.
15) In addition to federal and contractor employees,
there are also employees of the State of Washington who
work at the Hanford site. The Washington State Department of Ecology is the primary state regulator of
47
the Hanford cleanup. Department of Ecology employees engage in inspections in buildings, waste sites, disposal facilities, and tank farms and undertake other regulatory activities throughout the areas of Hanford listed
in HB 1723. These Washington State employees do not
do work directly or indirectly for the United States.
The U.S. Environmental Protection Agency is the other
primary regulator at Hanford.
Workers’ Compensation at Hanford
DOE’s Programs to Support Workers
ii
16) Workers are the backbone of DOE’s cleanup
mission and the Department is committed to helping
those who become injured or ill from their work. DOE
spends significant resources implementing its workers’
compensation program at Hanford. Since 2009, DOE
has paid nearly $116 million in workers’ compensation
benefits to employees of Hanford contractors. In addition, DOE is actively working with the Washington
State Department of Labor and Industries (“L&I”) and
other stakeholders to identify and implement strategies
for improving Hanford’s workers’ compensation program. DOE Hanford recently opened the Hanford
Workforce Engagement Center to help current and former workers, almost all of whom were employed by federal contractors, navigate and understand the occupational health benefits available to them, including providing information to assist them with obtaining benefit
payments under the Energy Employees Occupational
Illness Compensation Act (“EEOICPA”) program and
through the former worker medical screening program.
These federal programs and benefits for current and
former Hanford workers, which pre-dated HB 1723, will
48
remain available to them regardless of the outcome of
this lawsuit.
Hanford’s Workers’ Compensation under Washington Law
17) Since the United States acquired land in southeastern Washington for the Manhattan Project in 1943,
workers employed by contractors at Hanford have been
covered by the Washington Industrial Insurance Act
(“WIIA”), Revised Code of Washington (“RCW”) Title
51.
18) Under the WIIA, all employers must provide
workers’ compensation coverage by either insuring
through the Washington state fund (“State Fund”) administered by L&I or by self-insuring if they meet certain qualifications. RCW 51.14.010; 51.14.020.
19) Since 1999, DOE has self-insured the workers’
compensation claims of selected contractors and subcontractors at Hanford and established a special insuring
relationship under the authority of RCW 51.04.130.
DOE and L&I entered a Memorandum of Understanding, which is updated periodically, but usually without
substantive change. I have attached hereto as Exhibit
C a true and correct copy of the current version of the
Memorandum of Understanding between the U.S. Department of Energy Richland Operations Office and the
State of Washington Department of Labor and Industries (“MOU”), (revised, effective June, 2018). The
MOU explains each agency’s roles and responsibilities
and how the workers’ compensation scheme should be
applied at Hanford, specifically where it is not appropriate, practical or logical to apply Washington workers’
49
compensation laws, regulations, and administrative guidelines to DOE based on its status as a federal entity.
The appendix to the MOU provides a list of contractors
and subcontractors covered under DOE’s self-insuring
program, which comprises the majority of the current
Hanford site workforce. The MOU also provides that
DOE will cover workers’ compensation benefits for 61
listed former Hanford contractors and subcontractors.
MOU Attachment.
20) Most contractor employees at Hanford are covered by DOE’s self-insurance, certified in the MOU.
For those not covered, DOE pays workers’ compensation costs either directly (when DOE is a party to the
contract) or indirectly (when DOE is not a party to the
contract) because such expenses are part of the cost of
doing business. For example, Bechtel National, Inc.
(“BNI’’), the ORP contractor constructing the Waste
Treatment Plant, is not covered by DOE’s self-insurance, but is directly reimbursed for its workers’ compensation costs under its contract with DOE. If Bechtel’s
workers’ compensation costs increase due to the implementation ofHB 1723, DOE pays the increased costs as
allowable costs. See BNI Contract, Insurance-Litigation and Claims (DEAR 952.231-71) and the Advance
Understanding of Costs (Section J-26), available at https://
www.hanford.gov/page.cfm/DOE-ORPPrimeContracts/
BNIContract. DOE indirectly pays for the workers’
compensation costs of subcontractors performing work
at Hanford for one of DOE’s contractors because workers’ compensation costs are included in the price they
charge for services. Any increases in workers’ compensation costs to these federal contractors due to HB
1723 are almost certain to be passed on to DOE as reimbursable costs.
50
21) Through various contract provisions, DOE establishes its right to make changes to its contracts. In
exchange for this right, the contractor receives compensating rights to equitable adjustments in contract costs
or price and/or schedule. The contractor exercises this
right through the preparation and submission of a request for equitable adjustment. Whenever particular
cost requirements were not considered in the negotiation process, a determination of the cost or price could
create the need for an equitable adjustment. The additional requirements imposed by HB 1723 could be considered a constructive change in circumstances that
would lead one of DOE’s contractors to a request for an
equitable adjustment. Equitable adjustments may be
requested under all contract types. See Federal Acquisition Regulations (“FAR”) 52.243-1 – 52.243-5 (describing types of contracts). All FAR provisions provide
that a contracting officer shall make an equitable adjustment in the applicable parts of the contract that may include compensation (price/cost/fee), schedule, specifications, etc., when certain contract specific requirements
are met. If additional or increased costs are not allowable under current contract provisions, I expect Hanford’s federal contractors will request equitable adjustments based on HB 1723.
51
22) To date, the Federal Government has incurred
the vast majority of the costs associated with the enactment of HB 1723, and I predict that it will continue to do
so in the future.
Dated [3/1/19]
Respectfully Submitted,
/s/
GREGORY A. JONES
GREGORY A. JONES
U.S. Department of Energy
Richland Operations Office
P.O. Box 550
Richland, WA 99354
(509) 372-8977
52
EXHIBIT C:
MEMORANDUM OF UNDERSTANDING
between
THE U.S. DEPARTMENT OF ENERGY
RICHLAND OPERATIONS OFFICE
and
THE STATE OF WASHINGTON DEPARTMENT OF
LABOR AND INDUSTRIES
ARTICLE I. PURPOSE
This Memorandum of Understanding (MOU) is entered
into by and between the U.S. Department of Energy
Richland Operations Office (DOE-RL) and the State of
Washington Department of Labor and Industries (L&I)
for the purposes of memorializing DOE-RL’s responsibilities as a unique self-insurer under the Washington
Industrial Insurance Act (Revised Code of Washington,
Title 51), and, specifically RCW 51.04.130. In addition,
this MOU identifies which contractors and subcontractors at the Hanford Site are covered under this program.
ARTICLE II.
AUTHORITIES AND APPLICABLE
LAWS AND REGULATIONS
This MOU is entered into pursuant to the authority of
Sections 102(11) and 646 of the Department of Energy
Organization Act of 1977, P.L. 95-91, 42 U.S.C. § 7101
et seq., and RCW. 51.04.130.
Except as set forth herein, DOE-RL’s administration of
its workers’ compensation claims shall comply with applicable laws and regulations of the State of Washington
and of the United States.
53
ARTICLE III.
INTERAGENCY
TIONS
COMMUNICA-
To provide for consistent and effective communications
between L&I and DOE-RL, each agency has appointed
a representative to serve as the point of contact on this
MOU. Each agency agrees to notify the other in writing should the individual serving as the agency representative change.
For the State of Washington Department of Labor and
Industries:
Program Manager of Self Insurance
State of Washington
Department of Labor and Industries
P.O. Box 44200
Olympia, Washington 98504-4200
For the U.S. Department of Energy, Richland Operations Office
Program Manager for Hanford Workers’ Compensation
U.S. Department of Energy
Richland Operations Office
2420 Stevens Center
P.O. Box 550, MS A7-27
Richland, Washington 99352
ARTICLE IV. CONTRACTORS' COVERAGE AND
IDENTIFICATION
DOE is a self-insured employer for purposes of Washington State Industrial Insurance, as provided under
the Certificate of Qualification issued by L&I effective
January 1, 2000. As a self-insurer, DOE-RL establishes which prime contractors and other contractors engaged in work related to the Hanford Site will comprise
54
the covered group, as defined under the self-insurance
regulations. Contractors identified as members of the
covered group shall be insured for purposes of workers’
compensation under DOE-RL’s self-insurance certificate. Compensation awards and benefits shall be payable only for claims of workers injured in the course of
their employment, pursuant to a DOE contract, related
to the Hanford Site.
All current contractors in the covered group are identified by DOE-RL in the attachment to this MOU. When
DOE-RL elects to remove or add a contractor to the covered group, DOE-RL shall provide written notification
to the L&I Program Manager of Self-Insurance within
10 days of the change affecting the contractor’s coverage. Written notification received by L&I from DOERL shall serve as a modification to the attachment to
this MOU.
Pursuant to RCW 51.04.130, the Certificate of Qualification and this MOU, L&I considers DOE-RL and all of
its covered contractors to be one self-insured group or
entity and one employer for industrial insurance purposes such that DOE-RL and each member of the selfinsured group are, for industrial insurance purposes,
the statutory employer of the employees of the self-insured group.
ARTICLE V.
PROOF OF FUNDS AND FUND
PARTICIPATION
Because DOE-RL has the ability to meet its self-insured
obligations, DOE-RL shall not be required to provide a
security deposit. DOE-RL will provide to L&I proof of
availability of funds for the payment of benefits on an
annual basis.
55
DOE-RL will be responsible for a pro rata share of the
self-insurance administrative assessment, including direct and indirect expenses of each department division,
and the board of industrial insurance appeals. However, DOE will not be assessed for portions of the administrative assessment for the University of Washington environmental research facility, Division of Occupational Safety and Health (DOSH), and Safety and Health
Assessment and Research for Prevention (SHARP).
DOE-RL shall continue to participate in the Supplemental Pension Fund.
DOE-RL will not be required to participate in and may
not benefit from the Second Injury Fund Assessment,
the Insolvency Trust Assessment, the SI Overpayment
Reimbursement Fund Assessment, or the Logger Safety Assessment.
ARTICLE VI. EFFECT OF THIS MOU
This MOU is neither a fiscal nor a funds obligation document. This MOU shall not be construed to provide a
private right or cause of action for or by any person or
entity. All agreements herein are subject to and will be
carried out in compliance with all applicable Federal
laws, regulations, and other legal requirements.
ARTICLE VII. AMENDMENT/TERMINATION
AND EFFECTIVE DATE
This MOU may be amended or terminated by written
agreement between L&I and DOE- RL. This MOU
may be terminated unilaterally by either party upon 90
days written notice to the other party. This amended
MOU shall become effective upon the later date of signature of the parties and shall remain in effect until ten
56
years from the date of execution, unless extended or terminated by the parties before that date. In the event
of termination, the parties will work together in good
faith to resolve any issues arising out of the termination,
which may include adjusting the effective date of the
termination by written agreement.
/s/ GAIL SPETT
GAIL SPLETT
Program Manager for
Hanford Workers
Compensation
U.S. Department of
Energy
Richland Operations
Office
/s/ RANDI WARICK
RANDI WARICK
Deputy Director for
Financial Management
State of Washington
Department of Labor
and Industries
Date: [6/12/18]
Date: [6-15-18]
57
58
59
60
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
No. 4:18-cv-05189
UNITED STATES OF AMERICA, PLAINTIFF
v.
STATE OF WASHINGTON, ET AL., DEFENDANTS
DECLARATION OF PATRICIA HICKS
I, Patricia Ann Hicks, declare as follows:
1) I am currently employed by Penser North
America, Inc. (Penser) as the Branch Manager for the
Richland Office and the Workers’ Compensation Coordinator for the Hanford site in Richland, Washington.
I have held this position since October 2009. In this position, I am the lead providing technical, legal, investigative, and vocational support related to Hanford site
workers’ compensation claims. In this role, I provide
expertise regarding workers’ compensation claims, processes, and programs. I conduct performance reviews
and audit files, and am a resource to my team to ensure
that all claims are managed in compliance with applicable legal and regulatory standards, Penser’s contract,
and “best practice” in the industry. I was certified as a
claims adjudicator for Washington Sate Workers’ Compensation by Washington Department of Labor and Industries (L&I) in September of 2009. Washington Administrative Code (“WC”) 206-15-360. I have worked
with Washington works’ compensation claims since
1993.
61
2) I have personal knowledge of the facts in this
Declaration and I am competent to provide this testimony. I am providing this declaration in support of the
United States’ Motion for Summary Judgment in United
States v. Washington, No. 4:18-cv-05189 (E.D. Wash.).
The Penser Contract
3) Penser is the current third-party administrator
for the Workers’ Compensation Program at the Department of Energy (DOE)’s Hanford site, which provides
workers’ compensation coverage and benefits to specified DOE contractor employees in accordance with
the Revised Code of Washington (RCW) Title 51, the
Washington Industrial Insurance Act (WIIA), the
Washington Administrative Code (WAC), and all other
applicable laws and regulations under Contract Number
DE-EM0003393. Ture and accurate copies of the original contract, and as modified, are available at: https://
www.hanford.gov/index.cfm?page=1499; https://www.
hanford.gov/page.cfm/PrimeContracts/PenserConformed
Contract-EM0003383.
4) The period of performance for the Penser contract is October 1, 2014 - September 30, 2019. See Contract Sec. B.
5) Penser was the prior third party administrator
for DOE under a previous contract with similar scope of
work and contract terms. The prior period of performance was October 1, 2009 - September 30, 2014.
Hanford Nuclear Site Worker’s Compensation Program
6) DOE is qualified as a self-insured employer, as
it has met the Washington criteria required under RCW
51.14.030 and WAC 296-15-021. Under RCW 51.14.030,
62
a self-insured employer acts as the claims administrator, but remains subject to L&I oversight and the requirements of Washington workers’ compensation laws.
7) For purposes of workers’ compensation, DOE is
the statutory “Employer” for the workers employed by
the majority of the Hanford Site prime contractors,
some subcontractors, and certain legacy contractors.
RCW 51.08.070; WAC 296-15-021.
8) In its role as self-insured Employer, DOE is responsible for opening, processing, and administering
claims, and for paying approved claim benefits for Hanford Site workers’ compensation claims for contractors
that are selected by DOE for coverage pursuant to the
Memorandum of Understanding (MOU) between DOE
and L&I. RCW 51.08.173.
9) Under its contract, Penser fulfills DOE’s responsibilities as a self-insured Employer by providing
services in the processing of workers’ compensation
claims (i.e. investigating, administering, adjusting, processing, and paying) for certain covered site contractor
employees. See Penser Contract at Section C.1.b.
Penser provides all personnel, equipment, materials, supervision, transportation, training and other resources
necessary to perform these services on behalf of DOE.
Id. at C.1.a. In other words, when a worker files a workers’ compensation claim, Penser performs the work associated with processing, managing, and paying these
claims on behalf of DOE in accordance with Title 51
RCW.
10) On behalf of DOE, Penser pays, with DOE funds,
all costs associated with approved claims in accordance
63
with the L&I orders. DOE, as the self-insured Employer for specified federal contractor employees, is ultimately responsible for the sure and certain delivery of
Title 51 RCW benefits to eligible ill and injured workers,
and is accountable for all aspects of its workers’ compensation program. WAC 296-15-310.
Claims Processing
11) The workers’ compensation process begins when
an individual for whom DOE is the responsible selfinsured Employer files a claim with his or her employer
(covered Hanford Site contractor), and Penser is notified of the existence of an industrial injury or occupational disease within the meaning of RCW Title 51.08.
See also “Washington Claims Adjudication Guidelines”,
available at https://www.lni.wa.gov/ClaimsIns/Insurance/
Selfinsure/Claims/Guidelines/Default.asp.
12) Upon receiving a claim, Penser establishes a
claim file and gathers the employment, medical, and
claim information necessary to make a recommendation
to L&I regarding whether the claim should be allowed
or denied in accordance with Title 51. This determination must be made within 60 days from the date the claim
is filed, if all the requisite data are available. RCW
51.14.130. L&I may grant an interlocutory extension
up to 120 days from filing to allow the compiling of claim
related data when it is evident that the process of gathering sufficient information is not reasonable in the allocated timeframe. WAC 296-15-405(3).
13) Once a claim is filed, the usual process is for
Penser to request medical records from the attending
physician, consulting physicians and associated diagnostic materials, as well as Hanford’s on-site occupational
64
medical provider, and additional supporting documentation from the DOE contractor and the employee. If
sufficient supporting information is received, it is forwarded to L&I for claim determination within the allotted sixty (60) days.
14) Although timely requests are made, records may
not arrive as anticipated. This is especially true when
the records and medical providers are no longer in the
area, have not retained/indexed the records or insufficient information is available to make a specific request.
The older the requested information is, the more difficult it is to verify, gather and provide to L&I to within
the statutory timeline. RCW 51.14.130. For example,
in 2018, Penser received claims for benefits that require
supporting documents dating back to 1956. Since adoption of HB 1723, Penser has experienced many difficulties obtaining necessary records for presumption claims,
which are explained in more detail below.
15) To demonstrate that an employee is entitled to
workers’ compensation benefits, a worker generally has
the burden of establishing that he or she has a diagnosed
physical condition and that there is a “causal connection
between” that diagnosis and his or her employment
based on “competent medical testimony which shows that
the disease is probably, as opposed to possibly, caused by
the employment.” Dennis v. Dep’t of Labor & Indus.,
109 Wn.2d 467, 477 (1987). The Washington Claims
Adjudication Guidelines include three requirements before an occupational disease can be allowed: 1) Legal
Requirement—the disease must arise naturally and
proximately out of employment; 2) Causal relationship—
the doctor must state, on a more probable than not basis,
65
the disease is related to the work activities; and 3) Medical findings—the doctor must substantiate the diagnosis with objective medical findings. See “Washington
Claims Adjudication Guidelines” Claim Validity at 13 of
35, available at http/www.lni.wa.gov/ClaimsIns/Files/
Selfins/ClaimMgt/ClaimValidity.pdf.
16) The source of objective medical findings may include reports provided by a claimant’s attending and
treating physicians, as well as reports generated by independent medical examiners, to help determine if there
is a preponderance of medical evidence supporting a
causal link between the claimant’s alleged condition and
his or her employment.
17) Penser submits a recommendation to L&I
whether a claim should be approved or denied consistent
with the applicable legal requirements, along with the
supporting claim documents Penser has received. L&I
has the final administrative authority to either approve
or deny all claims and issue an order accordingly.
18) Either the worker or DOE may challenge an
L&I order through the administrative appeals process,
including further review by L&I and the Washington
Board of Industrial Insurance Appeals, subject to judicial review in state court. See RCW 51.52 (detailing the
review and appeal process).
19) If L&I approves a claim, Penser proceeds with
managing the payment of applicable benefits pursuant
to L&I fee and benefit schedules. See “Washington
Claims Adjudication Guidelines” Medical Treatment,
available at: https.www.lni.wa.gov/ClaimsIns/Providers/
Billing/FeeSched/2018/default.asp.
66
Claims Costs
20) There are six types of benefits that are payable
under a Washington State workers’ compensation claim:
(A) Medical—Injured workers are entitled to receive proper and necessary medical and surgical
services directly related to the injury or disease under his or her claim. RCW 51.36.010. Treatment
is limited to the accepted condition, and must be
curative or rehabilitative in nature, not merely
palliative.
Washington Administrative Code
WAC 296-20-01002. The goal of treatment is to
help the worker reach maximum medical improvement.
(B) Wage loss—Salary or hourly pay, plus the reasonable value of board, fuel, housing and “other considerations” of like nature. Benefits begin when
a physician certifies the worker is incapable of returning to work as a result of the occupational disease, and end when a physician agrees the worker
can return to gainful employment on a reasonably
continuous basis.
(C) Permanent partial disability—Compensates
an injured worker for the permanent loss of function sustained because of the work-related condition.
(D) Vocational assistance—Provides services designed to enable the injured worker to become employable. RCW 51.32.095; WAC 296-19A-010. A
vocational plan may be authorized for up to 2
years. Costs that may be authorized for plan services include tuition, books, supplies, equipment,
67
child or dependent care, and other necessary expenses. Time loss and medical benefits will continue while the worker is actively complying with
a formal program of vocational rehabilitation or
on-the-job training. See “Washington Claims Adjudication Guidelines” Vocational Rehabilitation,
available at: https//www.lni.wa.gov/ClaimsIns/
Claims/Rtw/Training/Default.asp.
(E) Pension—If a worker is certified as permanently and totally disabled before L&I closes the
claim, the worker may receive a monthly pension
if the medical and vocational evidence indicate
that the injury or occupational disease is preventing the employee from becoming gainfully employed. RCW 51.08.160; RCW 51.32.060.
(F) Death benefits—If death results from an injury, the expenses of burial and an ongoing death
benefit shall be paid to a surviving spouse and/or
children. RCW 51.32.050.
21) Claim costs incurred for the 2018 calendar year
alone totaled $2,428,767.00. Between 2009 and 2018,
total costs incurred amounted to $115,929,426.88. Usually, DOE receives between 300 and 350 claims per year.
22) Estimating costs associated with HB 1723
claims is extremely difficult in comparison to a standard
injury or occupational disease claim. The presumption
claims are likely to be “complex” claims, which are those
that “typically require more review and attention, due
to multiple medical and/or non-medical issues affecting
recovery and progress.” See Explanation of the Complex Claim Coordination Code, available at https://www.
68
lni.wa.gov/ClaimsIns/Files/SelfIns/Pnsr/ComplexClaim
CoordinationCode.pdf.
23) Claim costs are particularly difficult to calculate for cancer, beryllium disease, and neurological and
respiratory diseases. Each claim is unique in terms of
its medical and administrative burdens and are complicated by the specific circumstances of each claimant.
Given the unpredictability of these claims, costs could
easily exceed a million dollars per claim. Historically,
cancer claims were filed infrequently. Since 2009, there
have been five (5) or fewer claims filed for cancer conditions per year. In the last year, there have been over
50 claims for cancer conditions filed, which rely on the
HB 1723 presumption.
Burdens of the HB 1723 Presumption on DOE
24) As of February 14, 2019, the third party administrator has received ninety-two (92) claims applying the
HB 1723 presumption. Absent HB 1723’s presumption,
all ninety-two (92) claims would have been reviewed for
compensability under RCW 51.08.140 and most likely
recommended for denial. Currently, of the ninety-two
(92) claims received, forty-six (46) claims are in process
for threshold application of the presumption; thirty-one
(31) have been referred to L&I with the recommendation that the claim meets the requirements of HB 1723;
and ten (10) have been recommended for denial. Of the
ten (10) recommended for denial, L&I has issued two (2)
denial orders and eight (8) allowance orders, that is, orders granting claims. Additionally, five (5) claims have
been referred to L&I for State Fund review, as it was
determined that DOE 1s not the responsible self-insured Employer.
69
25) Overly Inclusive as to Qualifying Conditions:
The prima facie presumption established under HB 1723
includes respiratory diseases; any heart problems experienced within seventy-two hours of exposure to fumes,
toxic substances, or chemicals; cancers as listed in subsection (4); beryllium sensitization and acute and chronic
beryllium disease; and neurological diseases.
26) “Respiratory disease” and “neurological disease” are not defined and thus incorporate potentially
hundreds of illnesses and conditions. This incredibly
broad range of covered conditions includes many symptoms and conditions which commonly occur in the general public, such as carpal tunnel, asthma, chronic bronchitis, Parkinson’s disease, Alzheimer’s disease, and
strokes. List of Lung Diseases, American Lung Association, available at https://www.lung.org/lung-healthand-diseases/all-diseases.html (listing common lung diseases); Stroke NINDS Disorders, National Institute for
Neurological Disease and Stroke, available at http://tools.
aan.com/apps/disorders/index.cfm?event=database:
disorder.list (listing 250 neurological ailments)
27) Additionally, these categories could be interpreted so broadly as to eliminate the requirement that a
disease be established by a medical professional, and
that the diagnosis be substantiated by objective medical
findings. Although it is very likely that claims will be
presumptively allowed where there is no demonstrated
link to work at Hanford, DOE is responsible for all benefits payable under the presumptively allowed workers’
compensation claim: medical, wage loss, permanent
partial disability, vocational assistance, and pension and
death benefits.
70
28) Extremely Short 8 Hour Shift Requirement:
Under HB 1723, anyone with a qualifying disease can
bring a compensable claim against Hanford, following
having worked on the site for only one day.
29) Removal of “Last Injurious Exposure:”
A
worker who contracts an occupational disease may have
been exposed to hazards that caused their disease
through multiple employers. WAC 296-14-350 provides that responsibility for an occupational disease
claim lies with the employer at risk at the time of the
“last injurious exposure.” The last injurious exposure
rule was adopted by the Washington Supreme Court in
Weyerhaeuser Company v. Tri to determine liability
among successive insurers in occupational disease
claims. Weyerhaeuser Company v. Tri, 117 Wn.2d 128
(1991). HB 1723 removes this requirement. See HB
1723 Sec. 5(c). DOE is now required to accept responsibility for a disease contracted by a worker, regardless
of whether that worker had additional occupational exposures from subsequent and separate covered employers following the worker’s employment at Hanford.
30) Higher Burden of Proof to Rebut: Typically, if
an employer has medical or factual evidence to establish
alternative origins or causes of a condition alleged to be
covered under Title 51, that evidence can be used to
challenge compensability at the time that L&I adjudicates the claim. Under HB 1723, the presumption that
the illness arose naturally and proximately out of employment at Hanford may only be rebutted by clear and
convincing evidence that a worker’s illness was caused
by lifestyle, hereditary, or other factors. Id. at Sec.
1(2)(b). The prima facie presumption applies a threshold not seen elsewhere in occupational disease claims.
71
This burden necessitates that DOE must obtain expert
witnesses at a significant cost, and must search for, review and organize large volumes of medical documentation.
31) Difficulty Obtaining Necessary Records: The
majority of claims filed to-date that apply the HB 1723
presumption are for conditions that were diagnosed
quite some time ago. Obtaining medical records generated more than 10 years ago is often not possible, making it difficult to set an appropriate date of manifestation
on a claim, that is, the date on which the disease manifested. Dates of manifestation are crucial in occupational disease claims, as they determine the monthly
time loss benefit and permanent partial disability schedules used in calculating the worker’s benefits. RCW
51.32.180; WAC 296-14-350.
32) Even when subsequent medical records confirm the diagnosis, medical records may not be available
to confirm the medical and scientific criteria used to diagnose. For example, a current HB 1723 claim involves
a worker who was employed by Hanford between 1957
and 1959 and passed away in 1970. The children of this
worker are alleging that the worker died as a result of
brain cancer causally related to the worker’s employment at Hanford.
33) Hospitals are only required to retain and preserve medical records for ten years following the most
recent discharge of a patient. RCW 70.41.190. Additionally, the Washington State Medical Association recommends practitioners retain medical records six years
from the date of a patient’s death, 21 years from the date
of a minor patient’s birth, or indefinitely if the practi-
72
tioner has reason to believe the patient was incompetent, there were problems with the patient’s care, or the
patient may be involved in litigation.
34) Thus, the requisite medical records needed to
adjudicate this claim will be extremely difficult, if not
impossible, to obtain. Determining an accurate date of
manifestation for benefits schedule (time loss, wage
rate, death benefit and disability) is virtually impossible.
35) To date, challenges related to obtaining medical records that are outdated, archived, or unavailable
affect at least half of the claims filed under the HB 1723
presumption. Based on a limited amount of completed
claim adjudications, when records are unavailable the
claim will be allowed, rather than denied. It is my observation that unless the self-insured Employer can provide clear and convincing evidence to rebut the presumption, the claim will be allowed based on a worker’s
or his surviving beneficiary’s account of events.
36) This challenge also specifically impacts information needed for DOE to rebut the presumption with
clear and convincing evidence, and is compounded by
the elimination of any meaningful statute of limitations
for filing a HB 1723 presumption claim.
37) In addition to the challenges with obtaining
medical records, requisite information required to be retained and provided to L&I on claims that are covered
under the presumption is enormous, if possible at all.
Records may not exist and if they do, may be located remotely, and not indexed in a way that allows them to be
accessed and retrieved with reasonable effort. Employees from legacy contractors covered under the
MOU may have relocated, changed names or died.
73
Employment scenarios, co-workers and supervisors are
often unreachable, increasing challenges to confirm employment and non-employment activities.
I make this declaration under penalty of perjury, and
swear and affirm that the foregoing is true and correct.
Signed this [1] date of [Mar.], [2019] in [Benton]
County, Washington.
/s/
PATRICIA HICKS
PATRICIA HICKS
74
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
No. 4:18-cv-05189
UNITED STATES OF AMERICA, PLAINTIFF
v.
STATE OF WASHINGTON ET AL., DEFENDANTS
DECLARATION OF CHRISTOPHER R. HEALY
I, Christopher R. Healy, declare as follows:
1.
I am a Trial Attorney in the Civil Division, Federal Programs Branch, of the United States Department of Justice. I am one of the counsel
for the Plaintiff United States in the abovecaptioned case. I submit this declaration in
support of the United States’ Motion for Summary Judgment.
2.
I am attaching to this declaration true and correct copies of the following documents: (1)
“Hanford Site Employees-Occupational Disease
Presumption,” codified at Revised Code of
Washington (“RCW”) 51.32.187, attached hereto
as Exhibit A, and (2) the Individual Agency Fiscal Note for the Department of Labor and Industries for HB 1723 (“Fiscal Note”) prepared by
the Washington State Office of Financial Management (“OFM”), attached hereto as Exhibit B.
3.
I retrieved both documents from Washington
State government websites on March 1, 2019.
75
I swear upon penalty of perjury that the foregoing is
true and correct.
/s/ CHRISTOPHER R. HEALY
Dated: [3/1/19]
CHRISTOPHER R. HEALY
Trial Attorney
United States Department of Justice
76
Exhibit B: Individual State Agency Fiscal Note
Bill Number:
Title:
Agency:
1723 S HB
Hanford/occupational 235-Department
disease
of Labor and
Industries
* * * * *
Part II:
Explanation
This bill:
• Establishes that certain diseases contracted by
Hanford site workers are presumed to be occupational diseases.
• Provides definitions for “Hanford nuclear site”
and “Hanford site worker”
• Establishes that the presumption will apply for
the lifetime of a Hanford site worker.
• Establishes that when a worker prevails in an appeal regarding the presumption, the costs of the
appeal will be paid by the opposing party.
This version differs from HB 1723 by removing the
stipulation that the state fund cannot bear any of the
cost of the presumption, adds language about evidence that can be used to rebut the presumption, and
adds a provision for workers who have already had a
claim rejected for a condition, covered by this bill, to
file a new claim for that same condition.
This will take effect 90 day from sine die.
77
II.
A—Brief Description of What the Measure Does that
Has Fiscal Impact
This bill would establish that certain diseases contracted by Hanford site workers are presumed to be occupational diseases. It would also allow a worker who has
already had a claim rejected for a condition covered by
this bill to file a new claim for that same condition. The
Department of Labor and Industries (L&I) expects an
influx of new work as the result of this provision. In
addition, L&I expects this bill to result in an increase in
the number of new, complex claims.
The workers’ compensation coverage for Hanford site
workers is provided by the United States Department of
Energy (DOE), which self-insures its workers’ compensation liability under Title 51 RCW. L&I’s analysis assumes that DOE will be responsible for all benefitrelated costs arising out of this bill based on the existing
memorandum of understanding establishing DOE as a
self-insurer.
II. B—Cash Receipt Impact
If an employer chooses to be self-insured, they are responsible to pay for overall claim costs and a portion of
administration costs of L&I’s Self-Insurance Program
and other costs of related support functions. The administrative assessment is an amount per dollar of claim
benefit costs. If benefit costs are increased due to the
change in presumptive occupational diseases, the Department of Energy-Hanford, as a self-insured employer, would be assessed by L&I for their appropriate
portion of administrative costs based on the increase.
Incremental costs or savings will equal the incremental
revenue collected from assessments.
78
II. C—Expenditures
This bill increases expenditures to the Accident Account, fund 608, and the Medical Aid Account, fund 609.
The expenditure calculations in this fiscal note includes
the compensation and benefit changes approved in the
17-19 Biennial Budget.
The following additional resources are necessary to execute this bill:
Staffing
1.0 FTE Project Manager (WMS 1), temporary, from
July 1, 2018 through June 30, 2019, to create, define, and
manage the data and additional processes necessary to
ensure appropriate documentation and claim service to
Hanford workers and DOE.
1.7 FTE Workers’ Compensation Adjudicator 4s (WCA4),
permanent beginning July 1, 2018, to handle complex
claim adjudication and dispute resolution on new occupational disease claims, as well as claims previously rejected and subsequently being considered under presumptive coverage. This estimate is based on the following assumptions:
• From 2001 through 2016, an average of 113 DOE
claims were rejected each year.
• Using this average, L&I estimates that a total of
roughly 8,136 DOE claims have been rejected
since they began covering workers under Title 51
RCW in 1945 (113 per year x 72 years = 8,136).
This estimate assumes the Hanford site workforce is relatively the same as today as in the past.
79
• Assuming a greater proportion of previously rejected claims will be refiled from the newer years,
for example:
o
50% during last 36 years (113 x 36 x .50 =
2,034),
o
and a lesser proportion from the older years,
for example, 25% during the 36 years prior
(113 x 36 x .25 = 1,017),
o
L&I would expect an influx of about 3,051
new claims filed to take advantage of presumptive coverage (2,034 + 1,017 = 3,051).
• In addition, the bill opens up the possibility for
any former contracted Hanford worker to file a
claim under the presumption.
• Over the last 16 years, the number of contracted
workers at Hanford has ranged from roughly
6,000 to 11,000 workers at any given time, based
on worker hours reported. This does not account
for staff turnover over time, as L&I has no data
that would allow the department to estimate the
number of individuals that have been employed at
the Hanford site over the years. Therefore, for
purposes of this analysis, L&I is basing assumptions on a workforce of 10,000. This is towards
the high end of the reported range, but includes
some allowance for staff turnover.
• Assuming an estimated 10% of the estimated
10,000 contracted workers at Hanford will now
apply and file claims for the first time due to the
inclusion of the presumption to areas such as neurological diseases like dementia, for example,
L&I estimates another 1,000 new claims will be
80
filed (10% x 10,000 = 1,000), as the result of this
bill.
• As there is no data history available for these kind
of claims, this could vary considerably. However,
given these assumptions, L&I estimates total new
claims at 4,051 (3,051 + 1,000 = 4,051).
• L&I estimates that the majority of these would be
filed in the five years after the effective date of
the legislation; so it is anticipated that approximately 810 new claims each year for at least five
years (4,051 ÷ 5 = 810).
• On average, a WCA4 handles approximately 40
complex claims per month, or 480 per year. Therefore, an additional 1.7 WCA4 FTEs are needed to
manage the increased work (810 ÷ 480 = 1.7).
* * * * *
81
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
No. 4:18-cv-05189
UNITED STATES OF AMERICA, PLAINTIFF
v.
STATE OF WASHINGTON; JAY INSLEE, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF THE STATE OF WASHINGTON;
WASHINGTON STATE DEPARTMENT OF LABOR &
INDUSTRIES; JOEL SACKS, IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF THE WASHINGTON STATE DEPARTMENT
OF LABOR & INDUSTRIES, DEFENDANTS
DECLARATION OF JOYCE TSUJI
I, JOYCE TSUJI, declare under penalty of perjury
under the laws of the state of Washington that the following is true and correct.
I.
INTRODUCTION
1. I am over the age of 18, competent to be a witness herein, and make this declaration in that capacity.
I state the following based upon my personal knowledge.
I have been requested to provide expert opinions on behalf of the State of Washington regarding the unique
risks to worker health and safety from potential exposures to multiple toxic substances present at the Hanford Nuclear Reservation.
A.
Qualifications
2. I am a toxicologist and am employed as a Principal Scientist at Exponent, a multidisciplinary sciences
and engineering firm. I completed a Ph.D. focused in
82
physiology and ecology with postdoctoral research related to quantitative genetics in the Department of Zoology (now Biology), University of Washington. I am a
Fellow of the Academy of Toxicological Sciences and
have been continuously certified in toxicology by the
American Board of Toxicology since 1992. I have
served on various expert scientific committees for the
National Academy of Sciences (NAS)/National Research Council (NRC), Institute of Medicine (IOM),
U.S. Environmental Protection Agency (EPA), and the
State of Washington. My relevant past appointments
for this matter include NAS/NRC’s Board on Environmental Studies and Toxicology, Committee on Toxicology, NAS Spacecraft Exposure Guidelines for chemicals
in air and water (sponsored by the U.S. National Aeronautics and Space Administration), NAS Submarine Escape Action Levels for airborne contaminants in disabled submarines (sponsored by the U.S. Navy), NAS
Submarine Emergency and Continuous Exposure Guidance Levels for Selected Submarine Contaminants in
operating submarines (sponsored by the U.S. Navy), the
IOM Committee on Airborne Hazards and Open Burn
Pit Registry (sponsored by the U.S. Department of Veterans Affairs), and the NAS Standing Committee on
Emerging Sciences in Health Decision Making (sponsored by the U.S. National Institute of Environmental
Health Sciences).
3. I currently am serving on the National Academies Health and Medicine Division Standing Committee
on Medical and Epidemiological Aspects of Air Pollution
on U.S. Government Employees and their Families, the
NAS workshop organizing committee sponsored by the
U.S. EPA on systematic review and integration of toxi-
83
cology and epidemiological data to support chemical assessments under EPA’s Integrated Risk Information
System, the primary database for toxicity factors used
in risk assessment of environmental chemicals. I am
also a member of the Society of Toxicology and a member of Specialty Sections on Risk Assessment, Medical
Devices, and Nanotoxicology.
4. From 1987 until the present, I have worked as
an environmental consultant conducting, overseeing, and
reviewing human health risk assessments and exposure
studies. I am familiar with exposures and health effects of volatile organic chemicals from my service on
expert committees and numerous projects involving exposures and risk assessment of various types of environmental and workplace chemicals, as noted in my curriculum vitae. I have published in the peer-reviewed scientific literature on risk assessment, toxicology, biomonitoring (including mercury vapor), and exposure
pathways to substances in the environment. I served
as an expert for the Washington State Attorney General’s Office for the case no. 4:15-cv-05086-TOR: Hanford Challenge, United Association of Plumbers and
Steamfitters Local Union, and the State of Washington,
Plaintiffs, v. Ernest J. Moniz, in his official capacity as
Secretary, the United States Department of Energy,
and Washington River Protection Solutions, [WRPS]
LLC, defendants. In my role as an expert, I reviewed:
•
Hanford site documents related to the nature of
the various facilities, operations, and emissions;
•
DOE Hanford Site and WRPS reports related to
environmental, safety and health;
84
B.
•
Tank farm vapor studies and chemical inventories, concentrations, exposure and hazard characterization;
•
Hanford tank farm worker health reports; exposure incident and investigation reports;
•
Industrial hygiene hazard and exposure assessment plans and strategies, industrial hygiene
area and personal exposure monitoring procedures and records;
•
Occupational medical surveillance programs and
implementing procedures, Hanford medical provider worker exposure procedures and records,
workers’ compensation documents, and historical worker exposures to chemicals;
•
Findings and recommendations from several
DOE offices, National Institute for Occupational
Safety and Health (NIOSH), and other thirdparty health and safety inspections and audits
related to Hanford and tank farm-specific vapor
hazards, reported exposures;
•
Declarations of Hanford workers.
Data and Other Sources of Information Considered
5. In addition to my education, experience, and
training, I considered the materials listed in the Appendix attached at the end of this declaration, the Declarations of Suzanne Dahl-Crumpler, Bruce Miller, Anne
Soiza, Gary Franklin, Patricia Hicks, and the Complaint. The records I reviewed and cited in this document contain facts and data of a type that I typically rely
upon in forming opinions as a toxicologist. The facts
85
and data contained in these reports are of a type reasonably relied upon by other toxicologists in forming their
opinions. I relied on the facts and data in these materials in forming my opinions here.
C.
Limitations
6. This declaration summarizes work performed to
date and presents the findings resulting from that work.
The findings presented herein are made to a reasonable
degree of scientific certainty. I reserve the right to
supplement this declaration and to expand or modify
opinions based on review of additional material.
II.
A.
SUMMARY OF CASE BACKGROUND AND
OPINIONS
Site History Related to Health Risks
7. The Hanford site is a unique work environment
for worker health risks because of the long history of
operation; the variety and complexity of potential exposures to a multitude of hazardous agents, including radioactivity, beryllium, mercury, and thousands of other
inorganic and organic substances; and limitations and
uncertainties for assessing past and current worker exposures. Historical exposures involved plutonium production and handling of related hazardous chemicals,
whereas management and treatment of residual waste
chemicals continues currently. The 18 tank farms at
the Hanford site contain 177 underground tanks that
store 53 million gallons of concentrated waste remaining
from plutonium production from 1943 to 1987 (Washington Department of Ecology 2019). In addition to radioactivity, the waste contains thousands of other organic
and inorganic chemicals that comprise volatile air emis-
86
sions. Chemicals within the waste are continuously being produced and transformed through complex chemical and radiolytic reactions. The radioactivity further
enhances chemical reactions by production of free radicals (strong oxidizers) and heat.
8. The first of the single-shelled tanks (SSTs) were
built to contain waste in 1944, and a number of these
tanks are known or suspected of leaking waste into the
surrounding soil. Double-shelled tanks (DSTs) were
built beginning in 1968. Considerable efforts have focused on containment of waste from leaking or potentially leaking tanks and transferring waste from the
SSTs to the DSTs. Waste is also transferred between
DSTs as needed to manage and contain the material or
because of leaking of waste between the DST shell walls
(Washenfelder 2014). SSTs still contain residual waste
that cannot be completely pumped from the tank after
waste retrieval. These tanks have a lower layer of residual interstitial liquid, covered by a layer of sludge and
salt cake, over which lies a supernatant with a headspace
of gases above. Similar layers also occur in DSTs.
During waste retrieval, liquid from other tanks may be
introduced to break up or sluice the tank layers.
9. As vapors build up in the head space of the tanks
from heat and ongoing chemical reactions in the residual
waste, the tanks release gases from vents. The SSTs
have passive ventilation and release periodically depending on the pressure increase in the tank, whereas
the DSTs have active forced ventilation on a schedule.
10. Vapor releases from these tanks have regularly
resulted in noxious odors and reports of health effects in
workers. Numerous reports by the Department of En-
87
ergy (DOE or Energy), their contractors, and the National Institute for Occupational Health and Safety
(NIOSH) for the past two decades have noted worker
exposures to the chemical vapors in the tanks as a health
concern, assessed potential chemical hazards, and made
recommendations for further assessment and actions to
prevent such exposures and health risks (e.g., Brown et
al. 1992; Maughan et al. 1997; DOE 1999; Stenner, et al.
2001; DOE 2004; Droppo 2004; NIOSH 2004; Burgeson
et al. 2004; Mackerer 2006; Poet et al. 2006; Anderson et
al. 2007; Hughey and Farler 2008; Jabara and Farler
2008; Shultz et al. 2008; Hanford Concerns Council 2008,
2010; Farler 2009; TVAT 2014). The recent independent expert review conducted in 2014 by the Tank Vapor
Assessment Team (TVAT) of the Department of Energy
National Laboratory, Savannah River National Laboratory was the latest comprehensive review of this issue,
and made 10 overarching recommendations, each with a
number of detailed recommendations to address worker
health concerns. Ex. 1. A true and accurate report is
attached as Exhibit 1. As noted by the TVAT Report:
“The ongoing emission of tank vapors, which contain a
mixture of toxic chemicals, is inconsistent with the provision of a safe and healthful workplace free from recognized hazards.” Ex. 1 at 15. I agree that the frequently unpredictable emissions of tank vapors has
posed a serious concern for worker safety.
11. In response to the TVAT Report, Washington
River Protection Solutions (WRPS), the DOE contractor at the site that administers the worker health and
safety program, released an implementation plan in
2015 to address the TVAT’s recommendations (WRPS
2015). However, worker exposure incidents needing
medical attention continued to occur after that time,
88
with approximately 60 worker exposure incidents reported to the onsite medical clinic in early 2016.
12. A review by NIOSH (2016) noted exposure assessment limitations for worker exposures to tank vapor
releases and made additional recommendations for exposure assessment and control, management of the
safety and health program, and assessment and communication of worker medical issues.
B.
Summary of Opinions
13. I was asked to provide an assessment from a toxicological perspective on worker exposures at the Hanford Nuclear Reservation based on my previous assessment of worker hazards posed by chemicals emissions
from the tank farms. A summary of my opinions is as
follows:
a. Hanford tanks contain complex mixed radioactive and chemical wastes, composed of thousands of
organic and inorganic chemicals; these chemicals are
present in both the waste itself and in tank headspace
vapors.
1) Characterization of the chemical content
and concentrations of tanks is limited by the large
number of tanks, mixing of wastes, and the dynamic nature within tanks involving chemical and
radiolytic reactions, as well as increased releases
from waste-disturbing activities. Reported ranges
in concentrations therefore do not completely
characterize tank headspace composition and concentrations, meaning that chemicals may be present at higher concentrations than reported.
89
b. Workers in and around the tank farms have
been, and may continue to be, exposed to elevated
levels of chemicals from the tanks.
1) Acute high-dose exposures to largely undiluted tank chemicals from venting of vapors, tank
leakage, or releases during waste disturbance
have resulted in worker exposure events for decades; recent reports of exposure events demonstrate that such exposures continue to occur.
2) Longer-term worker exposure incidents
over several hours have also occurred.
3) Higher exposure concentrations are not
well quantified and the evidence indicates that vapor concentrations can be even higher than reported in the limited data collected following these
events.
c. Hanford tank farm headspace vapors contain
some highly toxic chemicals, as well as other toxicants at concentrations that have been reported to
cause serious health impairment from acute highdose exposures reported in the scientific literature.
These chemicals, individually and collectively, can be
extremely harmful to human health.
1) Numerous site reports and the scientific literature have acknowledged the toxicity and risk of
serious health effects posed by these chemicals.
2) Many of the chemicals contribute to upper
and lower respiratory tract irritation and tissue
injury, in addition to possible neurological effects.
90
3) In addition to radioactive materials, numerous chemicals present in the tanks are also classified as known or potentially to cause cancer or are
of higher toxicity. Some have been associated
with developmental health risks to the fetus of
pregnant women.
d. Worker exposures to uncontrolled tank waste
vapors have potential for causing serious, irreversible impairment.
1) Workers have (including recently) been exposed to chemical vapors at levels that require
medical attention and have led to adverse health
impacts.
2) While it is possible to recover from some of
these health impacts with proper treatment, a
subset of these health effects have not been immediately reversible, and workers have experienced
permanent damage to their health.
3) Reported chemical concentrations in tank
vapors for certain chemicals individually are sufficiently high to cause or contribute to serious health
effects. The potential for higher chemical concentrations, lack of adequate exposure information for basing decisions on worker protection,
frequent worker exposures resulting in medical
attention, and the combined effect of multiple
chemicals further increase the risk of serious
health effects.
III.
BASIS FOR OPINIONS
14. To form an opinion regarding the potential exposures and health risks alleged in this case, I followed
91
well-established toxicology and risk assessment principles with consideration of relevant site-specific data and
the current scientific literature, including knowledge regarding the adverse effects of acute exposures to volatile chemicals as well as potential chronic or long-term
consequences of such exposures. The following opinions express findings in accordance with the general
steps for assessing health risks from chemical contamination of hazard identification, exposure evaluation, toxicity assessment, and risk characterization (U.S. EPA
1989).
A.
Hazard Identification: Hanford Tanks Contain
Thousands of Chemicals in Both Waste and Headspace Vapors
15. Tank headspace vapors have been reported to
contain thousands of chemicals, whose concentrations
and composition depend on dynamic conditions involving formation of chemical intermediates in the waste as
enhanced by the energy from the radioactivity, as well
as temperature and pressures relative to external conditions. Internal and external pressure equalization is
achieved via passive or active venting of vapors from
tank headspaces. A 2006 report by CH2MHill noted
that 118 of the 149 SST headspaces had been sampled,
and although concentrations of chemicals could vary
over time depending on conditions, 95% of the chemical
concentrations within a tank varied by no more than 3
times (e.g., 100 to 300 ppm) for a given chemical. See
Ex. 2 at iii. Attached as Exhibit 2 to my declaration are
true and correct copies of excerpts from the CH2MHill,
Industrial Hygiene Chemical Vapor Technical Basis
(May 2006) (Meachum 2006b). The 2006 CH2MHill report also noted that the composition and concentrations
92
of chemicals among tanks are generally similar, which is
consistent with the mixing of waste over time. Ex. 2 at
22. Despite this overall similarity, concentrations of individual constituents are variable within and among
tanks at any given time, because of the complex and dynamic processes that affect chemical composition and
concentrations as described by the 2006 CH2MHill report.
16. In spite of all of the sampling, the large number
of tanks and the dynamic nature of the waste/headspace
vapors create considerable uncertainty regarding whether adequate characterization of chemical concentration
excursions has been completed, particularly those associated with a bolus release event that might cause harm
to workers. A 2004 report noted that most tanks sampled have only been sampled once, and some of the sampling methods were not able to detect certain compounds, such as small molecular weight compounds (e.g.,
ammonia, nitrous oxide, formaldehyde) or unidentified
organic compounds. See Ex. 3 at 3. Attached as Exhibit 3 to my declaration is a true and correct copy of a
report by Stock and Huckaby, Pacific Northwest National Laboratory (PNNL), A Survey of Vapors in the
Headspace of Single-Shell Waste Tanks (July 2004).
In summarizing maximum chemical concentrations,
chemicals that could not be separated in the analytical
methods or that occurred as part of mixtures, were further eliminated from consideration by this survey. Ex.
3 at 5. A review in 2008 likewise noted that not all tanks
have been sampled; only 30% have been sampled more
than once, and a comprehensive sampling strategy of
tank headspace vapors during static and waste disturbing activities was lacking (Hanford Concerns Council
2008).
93
17. Much of the sampling data also does not include
periods or situations in which tank chemical concentrations may be higher. Ex. 1 at 27 (TVAT 2014). For example, sampling the tank headspace during quiescent
periods does not capture the concentrations that might
occur just prior to a release event from increased tank
pressure from chemical reactions, nor does it represent
conditions during waste disturbance activities, which
can greatly increase vapor concentrations (Stewart et al.
2005). Even assuming the variation in concentration
reported by the 2006 CH2MHill report, 5% of the time
concentrations of chemicals varied by more than 3 times
(e.g., 100 to >300 ppm). Ex. 2 at 22. Thus, more extreme concentrations, although infrequent, do occur and
if they are associated with conditions resulting in a release (increased tank pressure, accidental release, leakage, or waste disturbance), could result in higher worker
exposures.
18. The primary types of chemicals reported from
analyses of tank headspace vapors include inorganic
constituents (e.g., hydrogen, nitrous oxide, ammonia,
carbon monoxide, carbon dioxide, elemental mercury,
and sulfur-containing compounds) and a variety of organic chemicals including alcohols; ketones; ethers; esters; aldehydes; halogenated compounds; nitriles; aliphatic, alicyclic, heterocyclic and aromatic hydrocarbons; and dimethylmercury (Stock and Huckaby 2004;
Meachum 2006a,b).
19. Several DOE-sponsored studies have evaluated
a short list of tank chemicals of potential concern for
worker health. The goal of identifying potential chemicals of concern is to focus more detailed assessments of
94
exposure and health risk as well as to provide information to guide industrial hygiene sampling efforts.
Burgeson et al. (2004) recommended 52 chemicals of potential concern based on: (1) a toxicological evaluation
of chemicals measured in tank headspace samples, and
(2) on those chemicals predicted to be present based on
waste analyses. High priority chemicals recommended
for the industrial hygiene program included six known
human carcinogens, 18 probable carcinogens, 1
27 chemicals that were present in tank head space samples at concentrations at least 10% of their lowest occupational exposure guideline level, 2 and dimethylmercury, a highly toxic form of mercury. CH2MHill reviewed all tank characterization data as of January 2006
and evaluated 1826 chemicals previously identified, 52
chemicals of potential concern, 1538 chemicals needing
further evaluation, and 236 chemicals with low probability of exposure. Ex. 2 at 33. Based on this evaluation,
CH2MHill developed a list of 48 chemicals of potential
concern for worker health. Ex. 2 at 39. Finally, in
2016 WRPS listed 59 chemicals of potential concern.
Attached as Exhibit 4 to my declaration is a true and
correct copy of WRPS’s list of Chemicals of Potential
Concern (WRPS 2016a).
20. Although much of the sampling data is not recent and is largely from headspace samples of SSTs, the
contents of SSTs were and are being pumped to DSTs,
and WRPS noted in a May 2016 presentation that their
Chemicals found to cause cancer in animal studies that have no
or limited evidence of cancer in humans.
2
A screening level of 10% of a health-based limit is often used in
an attempt to account for potential additive effects when multiple
chemicals are present.
1
95
recent sampling data are similar to the previous sampling data. See Ex. 5 WRPS May 11, 2016 PowerPoint,
Tank Farm Vapors Protection Update (headspace samples taken since fiscal year 2015 “[v]alidated that previous characterization has not changed”). As part of my
review of tank waste documentation, I also have reviewed information from Energy’s tank waste information systems (TWINS) database which contains Energy’s data characterizing the Hanford tank wastes, including waste measurements and sampling data. Most
of the available data on the TWINS database dates from
2005 and earlier.
21. I have developed a short-list of chemicals of potential concern to evaluate the potential for serious
health risks (Table 1). I developed this list based on
comparison of maximum reported levels of chemicals
(e.g., Burgeson et al. 2004; Anderson et al. 2006;
Meachum et al. 2006a,b; Hughey and Farler 2008) to
short-term exposure limits and occupational exposure
levels with some consideration of the number of tanks in
which chemicals were detected. Following previous approaches (e.g., Burgeson et al. 2004), National Toxicology Program known human carcinogens were also initially included, and some similar chemicals within a class
(e.g., nitriles).
96
Table 1.
Summary of initial list of chemicals for further
evaluation
Chemical Name
CAS RN
1,1’-Biphenyl
92-52-4
1-Butanol
71-36-3
3-Buten-2-one (methyl vinyl ketone)
78-94-4
Acetaldehyde
75-07-0
Acetonitrile
75-05-8
Ammonia
7664-41-7
Benzene
71-43-2
Butanenitrile
109-74-0
Dimethylmercury
593-74-8
Ethylamine
75-04-7
Formaldehyde
50-00-0
Mercury
7439-97-6
Methanol
67-56-1
N-Nitrosodimethylamine
62-75-9
Nitrous oxide (N2O)
10024-97-2
Propanenitrile
107-12-0
97
22. This assessment, of course, does not include the
additive effects of the many other chemicals that are
present at lower levels compared to their effect levels.
The additive effects of multiple chemicals in a mixture is
discussed in more detail below regarding the assessment of chemical toxicity. In brief, the combined exposure to all chemicals present in tank vapor releases contribute to the potential for health effects. Because of
the multiple chemicals involved (not all of which have
been characterized), chemical interactions are complex
and difficult to assess.
B.
Exposure Evaluation: Workers at the Tank Farms
have been Exposed to Elevated Levels of Chemicals
Emitted by the Tanks
23. A large number of WRPS or DOE employees or
contractors work in the area of the tank farms. These
workers are involved in a wide variety of activities associated with monitoring, construction, and maintenance
around tanks, as well as in actively retrieving wastes
and moving wastes among tanks. Workers in the tank
farm area who may be exposed to vapors include chemical operators, tank farm specialists, training coordinators, pipe-fitters, general maintenance workers, administrators, electricians, safety representatives, project
planners, health physics technicians, engineers, project
facilitators, carpenters, and quality control inspectors.
See Ex. 6 (NIOSH 2004) at 8. A true and correct copy
of the NIOSH 2004 report NIOSH Health Hazard Evaluation Report (July 2004), is attached as Exhibit 6.
Many workers perform their duties without personal
protective equipment that would prevent exposure to
chemical vapors (e.g., respiratory and full-face protec-
98
tion equipment). NIOSH (2004) also concluded that insufficient exposure monitoring was available to make informed decisions regarding the need for and appropriate level of personal protective equipment for workers.
As noted by NIOSH (2016), location of offices for tank
farm workers in temporary buildings near the tank farm
also increases the potential for worker exposures.
1.
Exposure pathways to tank farm vapors
24. Workers have been and continue to be at risk of
exposure to tank farm vapors by various pathways or
means of exposure, most notably:
a. Headspace venting through passive (SSTs) or
active mechanisms (DSTs) release chemical vapors.
b. Vapors escaping underground from tanks that
travel along piping and electrical conduits and collect
in weather-tight electrical cabinets or other enclosed
areas, thereby resulting in exposures when such areas are opened or disturbed.
c. Release of vapors from fittings, valves, risers,
or other tank fixtures during maintenance or sampling activities.
d.
unit.
Release of vapors from the 242-A Evaporator
e. Leakage or spills of waste, and/or release of
headspace vapors, during tank waste retrieval and
transfer among tanks (i.e., waste disturbing activities).
25. Exposure scenarios involving various types of
workers and work maintenance and operation activities
at the tank farms have been described by Stenner et al.
(2001) (Table 2). As presented by the various examples
99
in this table, workers have a number of opportunities to
be exposed to elevated levels of vapors released from the
tanks.
Table 2. Worker Exposure Scenarios for Tank-Farm Operations
Source: Stenner et al. (2001)
Type of Work
Example
Activities
Personnel in Main
Area of Activity
Equipment
installation
Estimates for
Task
High-Risk
Exposure
Time (hours)
Times/
Week
Hours/
Task
Health Physics and
Industrial Hygiene
technicians, Operations
personnel,
Electricians, Pipefitters,
Riggers,
Truck drivers
1
8
3
Saltwell
pumping
Health Physics and
Industrial Hygiene
Line flush- technicians, Operations
personnel,
ing
Pipefitters
5
12
3
Waste
transfer
1
8
4
(Wasteintrusive)
Installation/removal
of pump in
waste
Health Physics and
Industrial Hygiene
Work around technicians, Operapersonnel,
tanks, lift tions
Pipefitters
stations,
valves
100
Type of Work
Example
Activities
Personnel in Main
Area of Activity
Estimates for
Task
High-Risk
Exposure
Time (hours)
Times/
Week
Hours/
Task
Vapor pit Health Physics and
reconfiguIndustrial Hygiene
ration
technicians, Operapersonnel,
Nozzle set tions
up for waste Electricians, Pipefitters
transfer
1
8
3
Core sam- Health Physics and
pling
Industrial Hygiene
technicians, PipefitSetup/
removal of ters, Riggers, Electricians,
Instruequipment
ment
technicians
in waste
3
8
2
MainteHealth Physics and
nance activ- Industrial Hygiene
ities
technicians, Operations
personnel,
(Waste-inElectricians,
Pipetrusive)
fitters,
Riggers,
Removal of Truck drivers
equipment
previous installed
in
waste
1
8
4
101
Type of Work
Example
Activities
Personnel in Main
Area of Activity
Estimates for
Task
High-Risk
Exposure
Time (hours)
Times/
Week
Hours/
Task
1
8
4
Ventilation
testing and
maintenance
Vent and balance
personnel, Health
Physics and Industrial Hygiene techNear tank nicians, Operations
personnel
release
points
2
8
4
Tankintrusive
activities
Health Physics and
Industrial Hygiene
technicians, Operations
personnel,
Insert
Electricians, Pipeequipment
in
tank fitters
dome
3
8
3
Operation
routines
5
12
4
Pressure
Health Physics and
tests
of Industrial Hygiene
transfer
technicians, Pipefitlines
ters,
Operations
Bleed
off personnel
gas in lines
Health Physics and
Industrial Hygiene
Tank moni- technicians, Power
toring and operators, Operadata collec- tions personnel
tion
102
Notes:
Personnel listed have the highest probability of chemical exposure.
Each activity would also include support personnel located farther away.
Frequencies and duration of exposures are estimated and are highly
variable, depending on the job and the requirements for the activity.
The high-risk exposure time is the approximate time during an activity
that personnel are at a higher risk for chemical exposure.
2.
Reported exposure event
a.
Frequency of events
26. Tank vapor problems have been ongoing for decades since at least 1977 Ex. 1 (TVAT 2014). In more
recent times, the number of tank vapor exposure cases
for 2001, 2002, 2003, and the first quarter of 2004, were
9, 21, 30, and 10, respectively. Ex. 6 at 9 (NIOSH 2004).
Hocking (2005) reports even greater numbers of “vapor
incidents” recorded in the tank farm shift log for these
years (32, 26, 49, and 25, respectively). Despite investigations of these events and recommendations to prevent such exposures (e.g., DOE 2004; NIOSH 2004;
DOE 2007; Hanford Concerns Council 2008), the number of exposures in recent times has shown no sign of
decline. For example, 91 exposure incidents involved
workers visiting the onsite medical clinic between October 1, 2008 and March 31, 2010 (Hoffman 2010). A few
workers during this period experienced such exposures
more than once (up to 3 times). Two separate incidents
also resulted in workers being referred to a hospital.
An investigation of these incidents found no clear relationship with industrial hygiene sampling results, although more symptoms were associated with waste disturbance activities such as retrieval and transferring of
103
waste (Hoffman 2010). However, the air monitoring
conducted has been unable to characterize peak concentrations (TVAT 2014).
27. Despite the implementation of a plan in response
to the TVAT Report by WRPS (2015), vapor exposure
events continued to be reported. These exposures have
primarily occurred during the ongoing retrieval and
transfer of waste from the leaking DST 241 AY-102 to
the AP tank farm. Based upon review of WRPS’ publicly available data on AOP-15 (“Abnormal Operating
Procedure” or vapor exposure events), in 2015, 12 exposure events occurred involving various numbers of
workers at the effluent treatment facility, 242A Evaporator, and at or near tank farms SY, C, AZ, AY, and AN.
In addition, another vapor exposure event was reported
in 2015 that was not associated with a specific tank farm.
In 2016, 14 exposure events occurred at the 200-East
area, including tank farms TX, AZ, AW, AP, AN, and A
as well as the 242-A Evaporator (Hanson 2016; WRPS
2016c,d).
b.
Nature of exposure events
28. In most cases, reported exposures are intense
and relatively brief causing workers to immediately exit
the area and seek medical attention. Exposures to vapors may also involve longer durations or repeated exposures to varying concentrations, such as during waste
disturbing activities, or in the case of a spill event that
resulted in worker exposures and later health symptoms
(DOE 2007). The accident investigation report noted
that the event could have been more severe if workers
had been in the immediate vicinity of the spill at the time
the release happened. Workers had been present at
that location just 10 minutes prior to the release (DOE
104
2007). Modeling by the contractor indicated a relatively brief peak exposure period; however, as noted by
DOE (2007), modeling assumptions may not be correct
and elevated levels may not have dissipated quickly.
3.
Exposure concentrations
29. Sampling of chemical vapors at the tank farms
has generally been reported to be within occupational
health and safety limits for time-weighted-average exposures. See Ex. 1 at 17, 47 (TVAT 2014). Sampling
at release events has occasionally resulted in levels exceeding short-term or long-term time-weighted-average
limits. As noted in the TVAT Report, however, the
sampling methods used are incapable of capturing the
peak exposures associated with bolus releases that have
resulted in the need for medical attention by workers,
and sampling often was conducted some time after the
exposure event. See Ex. 1 at 17 (TVAT 2014). Actual
exposure can thus greatly exceed the reported concentrations. As a result, I concur with the TVAT Report’s
conclusions that reports of worker exposures being
within occupational exposure limits are unreliable for
assessing potential health risks to workers, and are insufficient to assure worker safety. See Ex. 1 at 17.
30. The TVAT’s findings were also consistent with
those of other expert panels regarding the site evidence
(DOE 2004; 2007; Hanford Concerns Council 2008, 2010;
NIOSH 2004, 2016). Energy’s Office of Independent
Oversight and Performance Assurance (OA) organized
a team of 23 experts to investigate worker vapor exposures at the site in 2004, noting “Some of the vapors produce unpleasant odors and can cause such reactions as
coughing and skin irritation; at higher concentrations,
some of the vapors are hazardous to human health” and
105
“Although most recorded worker exposures have been
low, records from direct-reading instruments (DRIs)
and personal sampling indicate that some work activities may result in significant vapor exposure potential to
workers” (DOE 2004). This panel also noted, “personal
sampling data is too limited to conclude that the exposure of all workers is below regulatory thresholds for all
chemicals to which they might be exposed” and that
there are “uncertainties in the detection of some chemicals, or inconsistencies in the collection and recording of
the data.”
31. The NIOSH (2004) Health Hazard Evaluation
of the Hanford tank farm stated “Exposure data for individual workers are limited in quantity and quality and
are not kept in an easily-accessible data base. Exposure monitoring often is initiated hours after an accidental release has been identified. This limits the utility of these data to determine the true exposure potential and may not adequately characterize employee exposures.”
Similar comments were made by DOE
(2007). NIOSH (2016) likewise described the limitations of sampling and evaluation of exposure events,
stating “The absence of detectable levels of known
chemicals does not mean that no exposure has occurred.” NIOSH (2016) also observed that more evaluation could be conducted of the data collected and that
the past recommendations of the Hanford Concerns
Council were still valid, which called for more extensive
efforts to analyze the available data to better understand the nature of worker exposures.
32. Limited monitoring of high exposure events using direct reading instruments for specific agents have
106
documented high airborne concentrations from releases. TVAT (2014) noted an exposure event in 2014
in which a direct reading instrument for ammonia was
“pegged”, implying the concentration was over the upper limit of the instrument (likely event reported on
March 25, 2014 in which ammonia was >100 ppm; WRPS
2014). A similar such measurement occurred on May 2,
2016 during maintenance on a core sampling platform
previously used to sample tank risers (WPRS 2016d).
Workers at the release location experienced overpowering odors and immediate symptoms. A hand-held instrument in the work area recorded ammonia levels that
exceeded the instrument’s upper limit of 99 ppm. Ammonia levels were undetectable in the work area within
ten minutes after the event.
33. Communications between WRPS and Energy’s
industrial hygienist also acknowledge that high bolus
exposures to workers occur. An email on July 14, 2015,
acknowledge the potential for ammonia concentrations
near 100 ppm (Urie 2015). Based on the event noted by
TVAT in 2014 and the event on May 2, 2016, ammonia
levels can be in excess of 100 ppm, although the instruments were unable to document the extend of exceedance above this level.
C.
Toxicity Screening of Chemicals Within Headspace
Vapors
34. The primary immediate adverse effects induced
by bolus exposures to the chemicals measured in tank
headspaces are eye and respiratory tract irritation and
potential damage, as well as neurological effects, such as
dizziness, headache, nausea, and other central nervous
system effects, some of which may linger after the event.
107
35. Specifically, ammonia has been measured in a
number of tanks at levels that would on its own cause
offensive odors, irritation, and potentially more severe
effects. Other chemicals with maximum levels that may
also individually cause odor and irritation effects include
n-nitrosodimethylamine, n-butanol, and 2-buten-3-one
(methyl vinyl ketone). Those chemicals most likely to
contribute to neurological effects include propanenitrile, nitrous oxide, n-butanol, and potentially elemental
and dimethylmercury. The collective effects of the entire mixture of chemicals should also be evaluated for its
combined toxicity, given the unique situation for the
tank farms in which potential exposures to a large number of chemicals may occur.
1.
Toxicological principles and health effect limits
related to acute exposures to volatile chemicals
a. Effects of concentration, time, and chemical
properties on toxicity
36. The toxicity of airborne chemicals is typically related to the concentration and duration of exposure, resulting in greater toxicity as concentration and/or duration of exposure increase. At sufficiently high concentrations, even brief exposures can cause serious harm to
exposed individuals. Effects produced by brief exposures to a chemical, if not excessively high, sometimes
may be reversible with proper treatment and recovery.
However, with longer exposure durations or repeated
exposures, less recovery is possible.
Additionally,
chemicals with high water solubility and chemical reactivity, such as ammonia, alcohol, or aldehydes, dissolve
readily into mucous membranes and thus can cause immediate effects on these tissues (Jegal and Kim 2016).
The toxicity of these chemical are thus less time-
108
dependent, consistent with the harmful effects that occur from acute bolus exposures. Highly soluble and
chemically reactive vapors primarily affect the eyes and
upper respiratory tract (e.g., nose, throat), whereas less
soluble chemicals such as nitrogen dioxide would affect
the deeper lung (Jegal and Kim 2016). As the airborne
concentration increases, however, even more soluble
chemicals are not effectively scrubbed by the upper respiratory tract, resulting in effects along the entire respiratory tract.
37. For substances causing central nervous system
toxicity, potentially leading to neurological problems,
rapid uptake into the bloodstream and the brain facilitates greater toxicity with dose. Mercury vapor and dimethylmercury both are highly fat soluble and rapidly
cross biological membranes (Berlin, et al. 2015). A
number of organic chemicals also cause central nervous
system effects at higher concentrations (e.g., hydrocarbons; McCoy 2008a).
b.
Persistent or irreversible effects of acute exposure
38. Acute exposures to tank vapors, if sufficiently
high or repeated, can lead to more serious effects that
are not immediately reversible. For example, irritant
gases (e.g., ammonia) or mixtures of gases have been associated with damage to the air-exchange sacs in the
lungs (aveoli), potentially resulting in pneumonitis, pulmonary edema, bronchitis and bronchiolitis, and leading
to long-term sequelae including irritant-induced asthma
and pulmonary fibrosis (Akira and Sugnuma 2014; Jegal
and Kim 2016). Damage to the neuroepithelium of the
nose resulting in impairment of the sense of smell (e.g.,
109
partial or full anosmia [loss of sense of smell] or dysosmia [distortion of sense of smell]) is a recognized occupational hazard of many airborne chemicals including
ammonia (Doty 1979, 2015; Prudhomme et al. 1998;
Harkema et al. 2006). Health and safety consequences
from olfactory dysfunction have been underappreciated
(Doty and Hastings 2001; Doty 2015). Nevertheless, a
diminished sense of chemical odors can increase potential chemical exposures in the workplace, as well as risks
of hazards from everyday incidents such as cooking,
fires, ingestion of spoiled food, and natural gas leaks
(Santos et al. 2004; Doty 2015).
39. Clear central nervous system effects are readily
identified at high chemical exposure levels, and can lead
to neurological problems. At lower exposure levels,
however, such effects are more subtle and difficult to
distinguish as related to the exposure, and may include
effects such as inability to concentrate, memory loss,
sleep disturbance, headaches, anxiety, weakness, and
apathy (Bolla 1991).
c.
Individual differences in susceptibility
40. Individuals may vary in their susceptibility to
the effects of airborne chemical exposures. At lower
concentrations, nuisance odor effects may be related to
differences in odor detection or tolerance. At higher
exposures causing direct effects on tissues, individual
responses are likely to be less variable. Effects of absorbed chemicals may vary among individuals through
differences in chemical metabolism by organs such as
the liver or individual variability in pharmacokinetic and
pharmacodynamic efficiency. Toxicity of chemicals
such as alcohols (e.g., n-butanol) that are affected by
metabolic enzymes in respiratory tissue, however, can
110
show differences in sensitivity among individuals (Pohl
and Scinicariello 2011). Metabolism of alcohols to aldehydes which are more reactive and damaging to tissues
contributes to the combined toxicity of aldehydes (e.g.,
formaldehyde) in tank vapors, particularly for individuals who are less able to further metabolize and reduce
levels of aldehydes in their respiratory tissues (NRC
2009).
41. Older workers may be more susceptible than
younger workers as reported for potential lung injury
from ammonia exposures (Erskine et al. 1993). Asthmatics would be expected to be more sensitive to lower
respiratory tract irritants. Individuals may differ in
susceptibility to the central nervous system effects of
chemicals, although such differences for acute effects
have not been as well studied. Although workers are
considered to be healthier than the general population,
and Hanford workers receive health physicals prior to
being cleared for work, individuals may still differ in
susceptibility. Worker exposure limits are stated to
protect nearly all workers, but not all (ACGIH 2016).
Pregnant women may also represent a susceptible population because effects on the developing fetus may
result from relatively brief exposure during gestation.
Although pregnant women may be excluded from some
duties, those in the early stages of pregnancy may not
know they are pregnant.
d.
Acute toxicity limits
42. Short-term limits that provide useful benchmarks for assessing bolus tank vapor exposures include
short-term workplace limits such as ceiling limits (peak
exposure allowed in the workplace) or the National Institute for Occupational Safety and Health’s (NIOSH’s)
111
limit of Immediately Dangerous to Life or Health. In
addition, for chemicals lacking a ceiling limit, according
to TVAT (2014), a ceiling limit may be derived by multiplying the 8-hour time-weighted-average exposure limit
value for a chemical by five. TVAT (2014) based this
derivation on the statement of the American Conference
of Governmental and Industrial Hygienists (ACGIH)
that under no circumstance should exposures in the
workplace exceed a level of 5 times the time-weightedaverage limit.
43. In consideration of the relative severity of effects from acute exposures, protective action criteria
summarized by DOE (2016) were also considered (protective action criteria are acute guideline levels intended
to assess exposure to the general public from chemical
releases). The three tiers of these levels include: (1)
mild, transient health effects; (2) irreversible or serious
health effects that could impair the ability to take protective action; and (3) life-threatening health effects.
Some of these levels are based on acute exposure guideline levels (AEGLs) (U.S. EPA 2016). In such cases, we
focused on those based on the shortest exposure time
(10 minutes). Chemicals without acute exposure guideline levels have temporary acute limits set by the DOE
and are based on 60-minute exposures. Although workers are considered less susceptible than the general
public, these limits are useful benchmarks for assessing
potential acute effects for more sensitive workers.
Several of the chemicals with immediate direct acting
effects are also expected to be more dependent on concentration than on exposure time.
112
2.
Ammonia
44. Ammonia forms a colorless gas that is detectable
at an odor threshold as low as 5 ppm, with a penetrating
odor at 53 ppm (NRC 2008). It is very soluble in water
and forms the highly alkaline (high pH) and corrosive
compound, ammonium hydroxide (and heat), in the presence of moisture, such as the surface of the eye or the
respiratory tract lining. As a result, ammonia is readily absorbed producing immediate effects when it contacts the eyes, mouth, nose, and respiratory tract (NRC
2008). Sufficiently high doses cause immediate effects,
including severe irritation, resulting in airway inflammation, and potentially damage to exposed tissues at the
site of absorption. Much of inhaled ammonia is absorbed by the upper respiratory tract, where effects are
localized to the nose and throat. At higher concentrations, above 500 ppm to around 1000 ppm, more ammonia will reach the lower respiratory tract. Case studies
of people exposed to ammonia indicate that very high
concentrations result in pulmonary edema and can be
permanently damaging to the lungs (including bronchiectasis, persistent air-flow obstruction, and bronchiolitis
obliterans) or lethal and that the severity of effects depends on concentration and time (ATSDR 2004; Garcia
2008; NRC 2008; Akira and Suganuma 2014). Case
studies from accidental exposures do not typically provide adequate information about exposure concentrations; however, ATSDR (2004) notes that brief exposures to concentrations from 5000-10,000 ppm or 30minute exposures to concentrations of 2500-4500 ppm
can be fatal to humans. By comparison, concentrations
as high as 1000 to 2500 ppm have been reported in tank
headspace (Burgeson, et al. 2004; Meachum, et al.
2006a).
113
45. The primary effect experienced at low to moderate ammonia concentrations is irritation of the upper
respiratory tract and other moist surfaces, including the
eyes, nose, and mouth. Various controlled human studies have reported mild eye and upper respiratory irritation following brief exposures to ammonia concentrations at around 30 ppm (it affects some individuals, during exercise, at levels as low as 5 to 25 ppm), with moderate effects beginning around 50 ppm, and intense to
unbearable irritation and tissue inflammation and injury
occurring at concentrations of approximately 100 ppm
and above (ATSDR 2004, 2014; Sundblad et al. 2004;
NRC 2008). Tolerance to non-disabling concentrations
of ammonia may develop with repeated or prolonged exposure (ATSDR 2004), which could result in longer exposure durations and/or higher exposures as people develop tolerance to immediate effects from low concentrations.
46. In some cases, irreversible and/or disabling lower respiratory effects have been reported in people chronically or repeatedly exposed to relatively low levels of
ammonia (<50 ppm), including reduced respiratory
function, bronchiolitis/bronchitis, asthma, obstructive
and restrictive lung disease, and pulmonary fibrosis
(ATSDR 2004, 2014). However, similar to the situation
at the Hanford site, exposure concentrations averaged
over time would not reflect short-term peak excursions
in concentrations and co-exposures to other chemicals
may have been involved.
3.
N-Butanol
47. N-Butanol is a colorless, flammable liquid at
room temperature with a strong, noxious odor detectable as low as 0.17 ppm (U.S. EPA 2011). Both irritant
114
and central nervous system effects have been reported
in controlled human exposure studies with n-butanol
(U.S. EPA 2011). N-Butanol is 5-10 times more potent
in inducing central nervous system effects than ethanol
(James 2008). Workplace exposures have also been reported to result in hearing loss (with concurrent noise),
vertigo, dermatitis, and other systemic effects (NIOSH
1992; U.S. EPA 2011). Although these exposures also
included the presence of other solvents, such a situation
is similar to that resulting from tank vapors.
4.
3-Buten-2-one (methyl vinyl ketone)
48. Methyl vinyl ketone is a colorless to yellow liquid
at room temperature that has a pungent odor detectable
at 0.2 ppm (U.S. EPA 2008). Although there are few
studies available evaluating the effects of methyl vinyl
ketone in humans, studies in several animal species
demonstrate that it is highly irritating to the upper respiratory tract and eyes (Morgan et al. 2000; U.S. EPA
2008). Because it acts as a direct irritant on mucous
membranes, the irritant and tissue damaging properties
in laboratory animals are considered relevant for humans. Nasal lesions occurred in both rats and mice at
>1 ppm, and lung necrosis in rats at >4 ppm.
5.
Mercury
49. Mercury exists in tank waste and vapors in elemental and organic forms and is continuously undergoing transformation between these major forms. The
forms noted in sampling data are usually mercury (assumed to be elemental or vapor) and sometimes dimethylmercury, primarily in exhaust data from vents of
DSTs for compliance with air permitting (SSTs do not
require air permits). Because DST exhaust is derived
115
from more than one tank, concentrations emitted by a
single tank can be higher. In addition, no explanation
is provided on whether the available sampling data that
report “mercury” concentrations represent total mercury forms (including dimethylmercury) or only elemental mercury.
50. Mercury vapor has low solubility and reactivity
in water and thus passes through the upper respiratory
tract without causing irritation. As a result, mercury
exposure may go undetected until acute injury to the
lower respiratory system and/or systemic exposure has
occurred (Jegal and Kim 2016; U.S. EPA 2010). Exposures to airborne mercury have occurred in both occupational and residential scenarios at high enough doses
to cause serious health effects ranging from chemical
pneumonitis to neurological effects (Jegal and Kim
2016). Acute exposure to elemental mercury has been
associated with effects on the central nervous system,
cough, difficulty breathing, and chest tightness, corrosive bronchitis, and pneumonitis (U.S. EPA 2010).
Mercury vapor is well absorbed into the brain following
inhalation exposure (Berlin, et al. 2015).
51. Dimethylmercury is a colorless liquid with a
weak, sweet odor and is readily absorbed by inhalation
or skin contact (OSHA 2016). Its high vapor pressure
results in rapid evaporation and inhalation hazards.
Dimethylmercury in spilled waste would also be well absorbed through the skin. Very little information is
available specifically about the relationship between
dose and toxic response from dimethylmercury exposure; although evidence indicates it is extremely toxic
even after a single exposure, based on a case study of a
researcher who died of mercury poisoning several
116
months after spilling one to several drops of dimethylmercury on the back of a latex gloved hand despite immediate removal of the gloves (Blayney, et al. 1991;
OSHA 2016). Organic mercury exposures during pregnancy are also a concern for neurodevelopmental effects
(Berlin, et al. 2015).
52. Although the reported concentrations of dimethylmercury in DST tank exhaust vapors would likely
result in a much lower dose than absorption of a drop of
the pure compound, the high toxicity, rapid absorption,
delay in effects, and uncertainty regarding exposure
concentrations indicate great caution should be exercised in preventing exposures to this compound.
6.
Nitrous oxide
53. Nitrous oxide is a colorless gas with a mild,
slightly sweet odor and taste. It is not irritating to the
respiratory system (NLM 2011), but depresses the central nervous sysem and is an anesthetic commonly used
in hospital and dental operating rooms (NIOSH 1994).
Over exposure to nitrous oxide acutely in the workplace
is reported to cause drowsiness, euphoria, and unconsciousness; impair mental performance, vision, hearing,
and motor skills; and with sufficient exposure, result in
permanent mental deficits (NIOSH 1994, 2014; NLM
2011). Repeated or chronic exposure can also affect
neurological and reproductive function and harm the
liver, kidney, and blood system (NIOSH 1994, 2014;
OSHA 2000; NLM 2011).
7.
N-Nitrosodimethylamine
54. N-Nitrosodimethylamine is a yellow, liquid at
room temperature with little to no odor, and is one of the
most reactive and toxic of the nitrosamine compounds
117
(U.S. EPA 1976; ATSDR 1989). In addition to affecting
tissues at the point of contact, n-nitrosodimethylamine
targets the liver as the primary organ affected by inhalation exposure to high concentrations (ATSDR 1989).
Case studies have identified severe liver toxicity in
workers exposed to unknown concentrations for as little
as two weeks.
Additional symptoms included abdominal cramping and pain, nausea, dizziness, vomiting,
jaundice, yellow ascites (fluid accumulation in the abdominal cavity), liver cirrhosis, enlarged liver and
spleen, and death. Exposure also resulted in bronchial
and tracheal hemorrhaging in at least one person, indicating this chemical’s direct effect in causing respiratory tissue damage. The more reactive nitrosamine
compounds, such as n-nitrosodimethylamine, are reported to cause irritation of eyes, lungs, and skin, and
with higher exposures, hemorrhagic destructive lesions
at the point of contact (U.S. EPA 1976). These effects
are consistent with hemorrhagic necrosis of the liver
in rats and dogs with acute exposure (ATSDR 1989).
N-nitrosodimethylamine is also considered an inhalation
carcinogen based on increased incidence of liver, kidney,
and lung tumors in rodents exposed to n-nitrosodimethylamine for 17-24 months. TVAT (2014) notes that
the acute toxicity of n-nitrosodimethylamine has been
underappreciated and less studied because of its genotoxicity (toxicity to genetic material) and potent liver
carcinogenicity in animals. Ex. 1 at 135.
8.
Propanenitrile
55. Propanenitrile (proprionitrile) forms a colorless
gas at ambient temperatures, is described as having a
pleasant, sweet odor, and can cause irritation and burning of the eyes and skin (NRC 2014). Case studies have
118
reported central nervous system effects in workers exposed to propanenitrile (NRC 2014). For example,
Scolnick, et al. (1993) reported a concentration of 34.4
ppm propanenitrile in the workspace air after two chemical plant workers were overcome and taken to the hospital. One worker was disoriented after two hours in
the work area and a second worker was found unconscious after seven hours. Additional symptoms included nausea, lethargy, headaches, dizziness, confusion, seizures, and chronic occurrence of severe headaches. Both men were treated for cyanide poisoning
from metabolism of propanenitrile to cyanide in the
body. Symptoms, including headaches and dizziness,
lingered for several weeks in one of the men. Studies in
rodents support a mechanism of action consistent with
cyanide toxicity, including signs of difficulty breathing,
disorientation, lethargy, tremors, and convulsions.
9.
Toxicity of mixtures
56. The chemicals described above, as well as the
many other chemicals present in tank vapor (e.g., aldehydes, Langford 2008, McCoy 2008b; hydrocarbons,
McCoy 2008a), may also act in combination to produce
even greater effects, particularly if they produce the
same types of effects individually and/or produce those
effects by the same mechanism of action biologically. A
number of the chemicals of concern are respiratory irritants that act on the mucous membranes of the eyes or
respiratory epithelial tissue to produce progressively
disabling effects with increasing concentration and duration of exposure (e.g., ammonia, methyl vinyl ketone).
Chemicals are also more likely to have additive or
greater than additive (i.e., synergistic) effects if some of
the chemicals are present at sufficiently high levels to
119
cause toxic effects. In such cases, the body is already
compromised, and damage to the respiratory tract can
be exacerbated by exposure to other chemicals acting on
this endpoint even though the chemicals do not have
similar mechanisms of action. In other words, even if
some of the individual chemicals are present in levels
that, by themselves, would not cause harm or not cause
serious harm, their additive effects could contribute to
adverse impacts and/or serious harm. As noted in the
TVAT Report, “Of course NDMA [n-nitrosodimethylamine] is but one compound among what is almost certainly scores of potentially acutely irritating compounds
extant in the tank head space, vents and subsequent sporadic ground level plume exposures.” Ex. 1 at 134. The
cumulative effect of such irritants can lead to greater tissue damage and more serious health consequences.
57. Similarly, other chemicals of concern are central
nervous system toxicants (e.g., propanenitrile, nitrous
oxide) with effects that progress from headache and dizziness to confusion, disorientation, and more serious effects at higher concentrations and/or exposure duration.
The effects of such chemicals are also likely to be additive or potentially more than additive once some chemicals are at levels causing effects.
58. It is standard regulatory practice to consider
risks from chemicals producing similar effects (e.g., irritation) or to the same organ system (e.g., respiratory
system) as additive (EPA 1989; Yu et al. 2010; SCHER
et al. 2011).
120
D.
Risk Characterization:
Tank Exposures Can
Cause Health Effects and Pose Risks of Serious Irreversible Impairment
1.
Health effects from acute exposure to key chemicals
59. Reported maximum concentrations of ammonia,
n-butanol, methyl vinyl ketone, nitrous oxide, n-nitrosodimethylamine, and propanenitrile in tank headspaces exceed various limits indicative of potential acute
health effects and risk of permanent impairment (Table
3). With the exception of ammonia and nitrous oxide,
most of these chemicals contribute to both irritation and
central nervous system effects, depending on the concentration. Although the short-term limits may incorporate a health-protective bias because of uncertainties,
these limits are considered applicable for making risk
management decisions to prevent serious health effects.
60. The chemical with the most acute toxicology
data, ammonia, has a maximum concentration that would
clearly cause serious health effects even with brief exposures. At such an exposure level, effects would occur
immediately, involve the whole respiratory tract, and
would likely produce respiratory tract injury leading to
irreversible effects that have been noted for this chemical. Direct reading instruments have documented ammonia levels during vapor exposure events that exceed
their upper limits for measurement (i.e., 100 ppm).
Maximum concentrations of n-nitrosodimethylamine
and propanenitrile also exceed the second-tier level of
the EPA acute exposure guideline levels or DOE protective action criteria, indicating that serious, potentially
irreversible, eye and respiratory effects are possible
from tank vapor exposures. TVAT (2014) emphasized
121
the ability of the highly reactive n-nitrosodimethylamine to “produce hemorrhagic destructive lesions at the
site of contact” and cautioned that even at 30% of the
levels measured at the vent exit of some tanks (>1100
ug/m3 or >0.36 ppm) this compound could be “highly irritating even under very brief exposures.” Ex. 1 at 133.
61. N-Butanol and methyl vinyl ketone exceeded
their occupational ceiling limits and would contribute to
these direct acute effects. Nitrous oxide would have
less contribution to irritation and direct tissue injury
but could contribute to central nervous system depression, along with the many other chemicals with these
toxic neurological effects (e.g., hydrocarbons).
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62. Mercury vapor exceeds 5 times the timeweighted-average limit (equivalent to a ceiling limit not
to be exceeded at any time in the workplace), and the
first level of the DOE protective action criteria for protection against reversible effects. Repeated exposures
to elemental mercury and the more toxic organic form,
dimethylmercury, however, are concerning because of
their rapid absorption by inhalation, ability to cross the
blood brain barrier, slow elimination, and neurotoxic effects from accumulation in the body.
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2.
Consistency with reported health effects
63. Health effects reported by workers are consistent with those reported in the literature for the
chemicals in the tank waste and vapors. Noted effects
are related to odor, upper respiratory and eye irritation,
as well as acute injury to respiratory tissue and lower
respiratory tract effects. Other effects appear to involve the central nervous system (e.g., dizziness, fatigue). Reports of worker exposures (e.g., Hoffman
2010), also indicate the occurrence of repeated peak exposures resulting in medical evaluations. Repeated exposures increase the potential for permanent respiratory tract or neurological injury.
64. As summarized in the TVAT Report, vapor exposure incidents have resulted in health effects consistent with the effects of bolus exposures to tank vapor
chemicals: shortness of breath, upper respiratory tract
irritation, coughing, nasal bleeding, headaches, and a
case of chemical pneumonitis (diagnosed). Ex. 1 at 51.
65. A voluntary survey involving 54 workers by
NIOSH (2004) reported immediate symptoms that included (N of workers):
• Headache (13)
• Bloody nose (7)
• Throat irritation (6)
• Coughing (5)
• Skin rash (5)
• Metallic taste (5)
• Eye irritation (3)
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• Dizziness (3)
• Shortness of breath (3)
• Nausea (2)
• Nose irritation (2)
• Chest tightness (1)
• Skin itching (1)
Symptoms and effects that persisted or occurred after
exposure included:
• Frequent headaches (10)
• Decrease in pulmonary function test values (8)
• New-onset asthma (6)
• Chronic cough (5)
• Frequent nose bleeds (5)
• Sinus infections (4)
• Hoarseness (3)
• Memory loss (3)
• Shortness of breath (3)
• Bronchitis (2)
• Pneumonia (2)
• Ringing in ears (1)
• Blood in stools (1)
• Scarring of lungs (1)
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3.
Cancer risk
66. Ionizing radiation exposure at the Hanford site
is a unique and serious concern for cancer risk from occupational exposure in the State of Washington. Various studies have established the association between
high dose ionizing radiation exposure and a number of
cancers based primarily on highly exposed populations
such as the Japanese atomic bomb survivors (ATSDR
1999). More recently, risks for blood cancers (i.e., leukemia) and solid cancer in other organs have been examined in prospective studies of nuclear industry workers in France, United Kingdom, and the U.S. (Leuraud
et al. 2015; Richardson et al. 2015). These cohorts included over 300,000 workers with monitored radiation
data who were employed for at least one year in the development of nuclear weapons (as at Hanford) and nuclear power. Exposures were much higher than for the
general public but substantially lower than for the
atomic bomb survivors. Increasing cumulative dose of
ionizing radiation within nuclear industry workers was
associated with increased risk of leukemia (excluding
chronic lymphocytic leukemia) (Leuraud et al. 2015) and
risk of all cancers or solid cancer of various organs
(Richardson et al. 2015). A positive association was
also found for Hodgkin’s lymphoma, non-Hodgkin lymphoma, and multiple myeloma, although the doseresponse was imprecise for these cancers (Leuraud et
al. 2015). Interestingly, both studies found that the
cancer risk rate (i.e., increase in cancer risk per unit increase in dose) for these nuclear industry workers was
similar to the cancer risk rate in male adult atomic bomb
survivors (ages 20 to 60 years), thereby contradicting
previous assumptions of lower incremental risk at low
doses.
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67. Although of lesser concern than ionizing radiation, a number of chemicals identified in tank waste and
headspace vapors are known human carcinogens or are
considered to potentially cause cancer based on studies
in animals (Burgeson et al. 2004). A risk assessment
conducted by the PNNL in 1997 examined 204 chemicals
in vapors from Tank C-103 for carcinogenic risk
(Maughan et al. 1997). The focus of the cancer assessment was on worker exposures over a duration of 25
years; however, the full report was not available for review of its assumptions and calculations. Total cancer
risks reported ranged from 1.4 in 10,000 to 1.6 in 1000,
depending on stack configuration. These risks were
compared to U.S. EPA target cancer risks of 1 in
1,000,000 to 1 in 10,000. Maughan et al. (1997) also considered possible synergistic effects of chemicals in magnifying risks by a factor of 1000, resulting in risks well
in excess of the EPA target range.
68. Although cancer risk using EP
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