Amicus Curiae Brief — United States, Petitioner v. Washington, et al.

NO. 21-404

In the

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

v.

STATE OF WASHINGTON, ET AL.,

Respondents.

__________________________

On a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

WORKERS’ INJURY LAW & ADVOCACY GROUP (WILG)

IN SUPPORT OF RESPONDENTS

JOSHUA T. GILLELAN, II, ESQ.

LONGSHORE CLAIMANTS’

NAT’L LAW CENTER

1111 30TH STREET, N.W., SUITE 500

WASHINGTON, D.C. 20007

(202) 787-3832

JGILLELAN@COMCAST.NET

BOBBY G. BURKE, ESQ.

COUNSEL OF RECORD

308 N.W. 13TH STREET

OKLAHOMA CITY, OK 73103

(405) 802-1495

BOB@BOBBURKELAW.COM

MARCH 23, 2022

SUPREME COURT PRESS

COUNSEL FOR AMICUS CURIAE

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

I.

AS A MATTER OF SOUND PUBLIC POLICY AND

BECAUSE OF THE CREATION OF THE GRAND

OR INDUSTRIAL BARGAIN IN EMPLOYEREMPLOYEE RELATIONS IN THE EARLY YEARS

OF THE 20TH CENTURY , THE S TATE OF

W ASHINGTON HAS GREAT LATITUDE TO

ENACT LEGISLATION TO REGULATE WORKPLACE SAFETY AND TO CONTROL STATE

WORKERS’ COMPENSATION BENEFITS PAYABLE

BY CERTAIN EMPLOYERS WHOSE WORKPLACE

IS EXTRAORDINARILY DANGEROUS. ................... 4

II. THE FEDERAL GOVERNMENT HAS RECOGNIZED

THE EXTRAORDINARY HAZARDS OF EXPOSURE

TO RADIOACTIVE MATERIALS BY PROVIDING

FOR PAYMENT OF BENEFITS FOR WORKERS

WHO DEVELOPED OCCUPATIONAL DISEASES

FROM THE EXPOSURE, OR THEIR SURVIVORS.

SCARCITY OF RECORDKEEPING IS AN

ADDITIONAL CRITERION TO ASSESS THE RISK

FOR WORKERS.................................................... 9

ii

TABLE OF CONTENTS – Continued

Page

III. THE CREATION OF A PRESUMPTION OF

WORKERS’ COMPENSATION COMPENSABILITY

FOR CERTAIN CLASSES OF WORKERS IS A

WELL-GROUNDED E XERCISE OF THE

R ESPONSIBILITY AND AUTHORITY OF THE

STATES TO RECOGNIZE THAT C ERTAIN

WORKERS ARE EXPOSED TO EXTRAORDINARY

RISKS AND ARE ENTITLED TO RELIEF FROM A

BURDEN OF PROOF THAT IS OFTEN DIFFICULT

TO MEET. SUCH PRESUMPTIONS GENERALLY

NEED NOT BE PERFECTLY TAILORED TO BE

PERMISSIBLE. A STATE LEGISLATURE MUST BE

GIVEN BREATHING SPACE TO FASHION

LEGISLATION TO CARRY OUT ITS MANDATE

TO PROTECT THE HEALTH AND SAFETY OF

ITS CITIZENS. ................................................... 16

IV. THE ENACTMENT OF THE PRESUMPTION

STATUTE FOR FEDERAL CONTRACT WORKERS

AT HANFORD IS AUTHORIZED BY AN ACT OF

CONGRESS AND IS A REASONABLE EXERCISE

OF S OVEREIGN LEGISLATIVE AUTHORITY

BASED UPON UNIQUE RISKS............................ 22

CONCLUSION.......................................................... 25

iii

TABLE OF AUTHORITIES

TABLE O

CASES

Page

F AUTH ORITIES

Atlas Roofing Co., Inc., v. Occupational Safety

and Health Review Commission,

430 U.S. 442 (1977) ........................................... 12

Bond v. United States,

564 U.S. 211 (2011) ............................................. 8

City of Edmond v. Vernon,

2009 OK CIV APP 36, 210 P.3d 860 (2008) ...... 18

Howard Delivery Serv. v. Zurich Am. Ins. Co.,

547 U.S. 651 (2006) ............................................. 6

Johnson v. City of Woodward,

2001 OK 85, 38 P.3d 218 (2000)........................ 17

National Federation of Independent Business

v. Sebelius, 567 U. S. 519 (2012) ......................... 7

National Federation of Independent

Business, et al v. OSHA, 142 S.Ct. 661,

211 L.Ed.2d 448 (2022) ........................................ 7

New York Central Railroad v. White,

243 U.S. 188 (1917) ............................................. 5

New York v. United States,

505 U.S. 144 (1992) .............................................. 7

Wanstrom v. North Dakota

Workers’ Compensation Bureau,

621 N.W. 2d 864 (North Dakota 2001) ................. 20

iv

TABLE OF AUTHORITIES – Continued

Page

STATUTES

11 O.S. § 49-110(A) ............................................. 17, 18

40 U.S.C. § 3172 ..................................................... 22

42 U.S.C. § 7384 et seq ............................................. 10

Wash. Rev. Code § 51.32.185 .............................. 16, 21

Wash. Rev. Code Ann. § 49.17.050 ........................... 13

Wash. Rev. Code Ann. § 49.17.220 ........................... 13

Wash. Rev. Code Ann. § 51.32.181 ........................... 21

Wash. Rev. Code Ann. § 51.32.187 ....................... 4, 22

Wash. Rev. Code Ann. § 51.32.390 ........................... 21

JUDICIAL RULES

Sup. Ct. R. 33.1 ........................................................... 1

Sup. Ct. R. 34 .............................................................. 1

Sup. Ct. R. 37 .............................................................. 1

REGULATIONS

29 C.F.R. § 1904 ........................................................ 11

EXECUTIVE ORDERS

Executive Order 13179,

President Bill Clinton, Providing

Compensation to America’s Nuclear

Weapons Workers.

www.nuclearworkers.org/history-of-the

energy-employees-occupational-illness-

v

TABLE OF AUTHORITIES – Continued

Page

compensation program.” Retrieved

February 5, 2022 ............................................... 10

OTHER AUTHORITIES

2019 Hanford Lifecycle Scope, Schedule and

Cost Report,

www.handford.gov/files.cfm/2019 ..................... 23

Arthur Larson et al.,

LARSON’S WORKERS’ COMPENSATION LAW

(2021) ................................................................. 16

CDC,

The Energy Employees Occupational

Illness Compensation Program Act

(EEOICPA), and www.cdc.gov (July 31,

2001) .................................................................. 11

David B. Torrey,

Firefighter Cancer Presumption Statutes

in Workers’ Compensation and Related

Laws: An Introduction, www.nawcj.org/

wp-content/uploads/2019/06/NAWCJFIREFIGHTER-PRESUMPTIONS. ................. 21

Institute of Occupational Medicine,

”Non-cancer occupational health risks in

firefighters,” https://academic.oup.com/

occmed/article-pdf/62/7/485/4392951/

kqs116.pdf, 2012................................................ 19

James Madison,

THE FEDERALIST No. 45

(January 26, 1788)........................................... 8, 9

vi

TABLE OF AUTHORITIES – Continued

Page

Maria Galucci,

A Glass Nightmare: Cleaning Up the Cold

War’s Legacy at Hanford, April 2, 2020,

spectrum.ieee.org/Hanford-nuclear-site ........... 23

National Council on Compensation Insurance

(NCCI), Presumptive Coverage for

Firefighters and Other First Responders,

November, 2018, www.ncci.com/Articles/

Documents/Insights-Research-BriefPresumptive-Coverage.pdf ................................ 19

National Fire Protection Association,

Firefighter Fatalities in the United

States—2017, https://www.nfpa.org/-/

media/Files/News-and-Research/Firestatistics-and-reports/Emergencyresponders/osFFF.pdf (June 2018) ................... 19

P. Lencsis,

WORKERS COMPENSATION: A REFERENCE

AND GUIDE (1998) ................................................. 6

Safety Counselling Inc.,

Reasons Why OSHA Recordkeeping is

Critical for Your Business,

www.safetycounselling.com/tag/osharecordkeeping/ ................................................... 13

United States Department of Labor,

Occupational Safety and Health

Administration,

www.osha.gov/recordkeeping ............................ 12

Wash. Dep’t of Lab. & Indus.,

Hanford-Department of Energy (DOE)

Data, November, 2021....................................... 24

1

INTEREST OF THE AMICUS CURIAE1

Amicus curiae Workers’ Injury Law & Advocacy

Group [WILG] is a national non-profit membership

organization dedicated to protecting and advocating

the rights of millions of injured workers and their

families who, each year, suffer the consequences of

workplace injuries and illnesses. WILG advocates for

both reasonable benefits and increased safety in the

American workplace.

The group acts principally to assist attorneys

and non-profit groups in advocating the rights of

injured workers through education, communication,

research, and information gathering. WILG is a

network of like-minded advocates for workers’ rights,

information and knowledge, a sense of commitment

and kinship, and networking to help each other and

our clients.

1 This brief is filed pursuant to Supreme Court Rules 33.1, 34,

and 37. Written consent to file this brief has been given by all

parties; by Elizabeth B. Prelogar, Solicitor General of the

United States; and by Anastasia R. Sandstrom, Senior Counsel,

Office of the Attorney General of the State of Washington. No

counsel for a party has authored this brief in whole or in part.

No person or entity has made a monetary contribution to this

brief’s preparation or submission. Counsel of Record, Mr. Burke

and Mr. Gillelan, are co-chairmen of the Amicus Committee of

Workers’ Injury Law & Advocacy Group. Counsel of Record

have received assistance in writing the brief from attorney

Valerie McOmie, Camas, Washington, Amicus Co-Coordinator

for the Washington State Justice Association Foundation, and

Brad McClellan, attorney, Austin, Texas, and former Chief of

the Workers’ Compensation Section of the Office of the Attorney

General of Texas.

2

Workplace safety is one of the pillars of the

advocacy efforts of the amicus curiae. Frequently,

WILG provides in-person and online access to safety

experts to assist the organization in supporting legislation in Congress and the various states to educate and

facilitate the creation of better working conditions for

the nation’s workers.

WILG, founded in 1995, has grown into an

organization of more than 1,000 members from every

state in the nation. Members include sole practitioners,

attorneys from multi-lawyer firms, and paralegals.

WILG, with headquarters in New Port Richey, Florida,

represents an important, national voice for workers.

WILG’s members are committed to improving the

quality of legal representation of those employees

who are injured on the job or who are victims of

occupational disease, through superior legal education

and through judicial and legislative activism.

SUMMARY OF ARGUMENT

A. As a matter of sound public policy and because

of the creation of the Grand or Industrial Bargain in

employer-employee relations in the early years of the

20th century, the State of Washington has great

latitude to enact legislation to regulate workplace

safety and to control state workers’ compensation

benefits payable by certain employers whose workplaces

are extraordinarily dangerous.

B. The federal government has recognized the

extraordinary hazards of exposure to radioactive materials by providing for payment of benefits for workers

3

who developed occupational diseases from the exposure,

or their survivors. Scarcity of recordkeeping is an

additional criterion to assess the risk for workers.

C. The creation of a presumption of workers’ compensation compensability for certain classes of workers

is a well-grounded exercise of the responsibility and

authority of the states to recognize that certain workers

are exposed to extraordinary risks and are entitled to

relief from a burden of proof that is often difficult to

meet. Such presumptions generally need not be perfectly tailored to be permissible. A state legislature

must be given breathing space to fashion legislation

to carry out its mandate to protect the health and

safety of its citizens.

D. The enactment of the presumption statute for

federal contract workers at Hanford is authorized by

an act of Congress and is a reasonable exercise of

sovereign legislative authority based upon unique risks.

4

ARGUMENT

I.

AS A MATTER OF SOUND PUBLIC POLICY AND

BECAUSE OF THE CREATION OF THE GRAND OR

INDUSTRIAL BARGAIN IN EMPLOYER-EMPLOYEE

RELATIONS IN THE EARLY YEARS OF THE 20TH

C ENTURY, THE STATE OF W ASHINGTON H AS

GREAT LATITUDE TO ENACT LEGISLATION TO

REGULATE WORKPLACE SAFETY AND TO CONTROL

STATE WORKERS’ COMPENSATION BENEFITS

P AYABLE BY C ERTAIN E MPLOYERS W HOSE

WORKPLACE IS EXTRAORDINARILY DANGEROUS.

The State of Washington has great latitude to

legislate benefits for injured workers on the basis of

extraordinary risk to workers whose employers are

part of the state workers’ compensation system.

In the case at bar, the State of Washington

through its legislature enacted a workers’ compensation

provision that applies exclusively to workers who are

employed by private firms that enter into contracts

or subcontracts to perform services for the federal

government at the Hanford site in the State of

Washington, a federally owned site previously used

to produce plutonium for nuclear weapons. 2 The

filings by the State of Washington provide detailed

information about the unique risk faced by federal

contract workers and the legislature’s response to

2 It is not the intent of this brief to duplicate the detailed

history of the Hanford site and the cleanup underway that is

contained in the briefs filed by the parties. House Bill 1723,

65th Leg. Reg. Sess., was passed by the Washington legislature

in 2018. Wash. Rev. Code Ann. § 51.32.187 (West Supp. 2022).

5

that risk by enacting the presumption of compensability.

There is long precedent for the right of the states

in this area. For more than a century, this Court has

recognized that states can develop a statutory scheme

to provide benefits to injured workers without interference from the federal government.

After the State of New York passed one of the

first workers’ compensation statutes, this Court considered the constitutionality of legislative replacement

of a common law tort for work-related injuries with

an exclusive remedy, no-fault system with scheduled

benefits for injured workers. The “Grand Bargain” or

“Industrial Bargain” was upheld by the Court in New

York Central Railroad v. White, 243 U.S. 188 (1917).

The 105-year-old decision concisely explained the

Grand Bargain:

It is not unreasonable for the state, while

relieving the employer from responsibility for

damages measured by common-law standards

and payable in cases where he or those for

whose conduct he is answerable are found

to be at fault, to require him to contribute

a reasonable amount, and according to a

reasonable and definite scale, by way of

compensation for the loss of earning power

incurred in the common enterprise, irrespective of the question of negligence, instead

of leaving the entire loss to rest where it

may chance to fall,-that is, upon the injured

employee or his dependents.

243 U.S. at 203

6

The landmark case held that the use of workers’

compensation laws to replace traditional tort remedies

must provide “significant” benefits. Consideration for

the Grand Bargain was a “reasonable amount, and

according to a reasonable and definite scale, by way

of compensation for the loss of earning power incurred

in the common enterprise . . . ” New York Central

Railroad and subsequent pronouncements have given

the states great latitude to develop a reasonable

schedule of defined benefits as their part of living up

to the Grand Bargain.

Such legislative response is the business of the

states. Eighty-nine years after the New York Central

Railroad opinion, in Howard Delivery Serv. v. Zurich

Am. Ins. Co., 547 U.S. 651, 662-663 (2006), the Court

noted the purpose of a state adopting a statutory

workers’ compensation scheme:

The invention of workers compensation as it

has existed in this country since about 1910

involves a classic social trade-off or, to use a

Latin term, a quid pro quo. . . . What is given

to the injured employee is the right to

receive certain limited benefits regardless of

fault, that is, even in cases in which the

employee is partially or entirely at fault, or

when there is no fault on anyone’s part.

What is taken away is the employee’s right

to recover full tort damages, including damages for pain and suffering, in cases in

which there is fault on the employer’s part.

P. Lencsis, W ORKERS C OMPENSATION : A

REFERENCE AND GUIDE 9 (1998).

This “classic trade-off” allows the states to provide

for limited benefits regardless of fault. It is uncontro-

7

verted that contractors and subcontractors hiring

workers at the Hanford site are subject to the workers’

compensation laws of the State of Washington. Thus,

the State of Washington has authority to legislate

benefits for such workers and the conditions under

which those benefits are available.

Recently, this Court spoke of the power of the

states in this area. In the concurring opinion in

National Federation of Independent Business, et al v.

OSHA, 142 S.Ct. 661, 211 L.Ed.2d 448 (2022), Justice

Gorsuch wrote:

There is no question that state and local

authorities possess considerable power to

regulate public health. They enjoy the “general power of governing,” including all

sovereign powers envisioned by the Constitution and not specifically vested in the federal government.

142 S.Ct. at 667 (Gorsuch, J., concurring) (citing

National Federation of Independent Business v.

Sebelius, 567 U. S. 519, 536 (2012).

In National Federation of Independent Business

v. Sebelius, 567 U.S. 519 (2012), Chief Justice Roberts

looked to the writings of the Founding Fathers

regarding the division of power between the federal

and state governments:

“State sovereignty is not just an end in

itself: Rather, federalism secures to citizens

the liberties that derive from the diffusion

of sovereign power.” New York v. United

States, 505 U.S. 144, 181 (1992) . . . Because

the police power is controlled by 50 different

States instead of one national sovereign, the

8

facets of governing that touch on citizens’

daily lives are normally administered by

smaller governments closer to the governed.

The Framers thus ensured that powers

which “in the ordinary course of affairs, concern the lives, liberties, and properties of

the people” were held by governments more

local and more accountable than a distant

federal bureaucracy. The Federalist No. 45,

at 293 (J. Madison). The independent power

of the States also serves as a check on the

power of the Federal Government: “By

denying any one government complete jurisdiction over all the concerns of public life,

federalism protects the liberty of the individual from arbitrary power.” Bond v. United

States, 564 U.S. 211, 222, (2011).

Id. at 536.

James Madison, in THE FEDERALIST No. 45, was

concerned about an over-reaching federal government

except in cases of war and national security. The

future President of the United States said:

The operations of the federal government

will be most extensive and important in

times of war and danger; those of the State

governments, in times of peace and security.

As the former periods will probably bear a

small proportion to the latter, the State

governments will here enjoy another advantage over the federal government. The more

adequate, indeed, the federal powers may

be rendered to the national defense, the less

frequent will be those scenes of danger which

9

might favor their ascendancy over the governments of the particular States.

The FEDERALIST PAPERS, No. 45, James Madison,

January 26, 1788.

II. THE FEDERAL GOVERNMENT HAS RECOGNIZED

THE EXTRAORDINARY HAZARDS OF EXPOSURE TO

RADIOACTIVE MATERIALS BY PROVIDING FOR

PAYMENT OF BENEFITS FOR WORKERS WHO

DEVELOPED OCCUPATIONAL DISEASES FROM THE

EXPOSURE, OR THEIR SURVIVORS. SCARCITY OF

RECORDKEEPING IS AN ADDITIONAL CRITERION

TO ASSESS THE RISK FOR WORKERS.

The nuclear weapons program of the United

States began as early as 1939 when Enrico Fermi

and Albert Einstein brought the threat of a Nazi

super weapon to President Franklin D. Roosevelt’s

attention. As World War II progressed, the urgency

to develop an atomic bomb intensified and eventually

produced the bombs that were dropped over Hiroshima

and Nagasaki.

The American nuclear program has employed

nearly 700,000 workers at over 380 Department of

Energy sites across the country. Major sites from

coast-to-coast spanned thousands of miles and involved

enormous, rapid construction projects. “Atomic Cities”

were literally created overnight as thousands of

workers, from uranium miners and transporters to

bomb testers and their families flocked to new job

opportunities and a chance to defend our nation.

The incredible success of the U.S. nuclear weapons

program stands as a testament to American ingenuity

and patriotism. However, it was not without sacrifice.

Of the 700,000 employees, contractors, or sub-con-

10

tractors of the Department of Energy, many became

sick as a result of the hazardous work environment

associated with nuclear weapon production. Their

sacrifice was appropriately described by President

Bill Clinton in an Executive Order in 2000:

Thousands of these courageous Americans

. . . paid a high price for their service, developing disabling or fatal illnesses as a result of

exposure to beryllium, ionizing radiation,

and other hazards unique to nuclear weapons

production and testing. Too often, these

workers were poorly protected or not properly

made aware of the dangers when working

with radiation and chemicals specific to

nuclear weapon production. As a result, many

developed work-related illnesses; sometimes

even well after their employment.3

In an attempt to remedy the sacrifice of nuclear

weapons workers, President Clinton signed into law

the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA).4

3 Executive Order 13179, President Bill Clinton, Providing

Compensation to America’s Nuclear Weapons Workers. See

www.nuclearworkers.org/history-of-the energy-employeesoccupational-illness-compensation program.” Retrieved February 5, 2022.

4 42 U.S.C. §§ 7384 et seq and amendments. The Act was

passed by Congress October 30, 2000, and became effective July

31, 2001. The U.S. Department of Labor manages claims filed

under the Act. Among hundreds of covered sites are major sites:

Savannah River Site (SRS): Aiken, South Carolina; Portsmouth

Gaseous Diffusion Plant: Portsmouth, Ohio; Iowa Army Ammunition

Plant (IAAP): Burlington, Iowa; Oak Ridge Gaseous Diffusion

Plant: Oak Ridge, Tennessee; Hanford Site: Richland, Washington;

11

The EEOICPA provides compensation as well as

related medical expenses to workers who contracted

certain diseases as a direct result of exposure to

beryllium, silica, or radiation while working for the

U.S. Department of Energy and its predecessor

agencies, its contractors, or subcontractors in the

nuclear weapons industry.5

In addition to the extraordinary risk of exposure

to radioactive materials, there is an increased risk

for federal contract workers at Hanford based upon

the scarcity of documentation and recordkeeping for

preserving the safety of the workers.6

Congress has made it a national priority for

employers to report work-related injuries and illnesses

and other factors that may result in harm to an

employee. The Occupational Safety & Health Administration (OSHA) focuses on recordkeeping with clear

and concise requirements for recording injuries and

illnesses.7 It is so important for the safety of American

workers, OSHA’s website publicly displays an

employer’s workplace violation history. These record-

Paducah Gaseous Diffusion Plant: Paducah, Kentucky; and Los

Alamos National Laboratory: Los Alamos, New Mexico.

5 For a description of the program, see www.benefits.gov, The

Energy Employees Occupational Illness Compensation Program

Act (EEOICPA), and www.cdc.gov, the official website of the

Centers for Disease Control and Prevention.

6 The scarcity of reporting by employers of federal contract

workers at Hanford is documented in briefs of the State of

Washington.

7 The authorization for OSHA to require and enforce record

keeping is found at 29 CFR 1904.

12

keeping methods ensure accountability and are

integral to safety planning.8

A short statement by OSHA on its website

summarizes the importance of good recordkeeping,

“This information helps employers, workers and OSHA

evaluate the safety of a workplace, understand industry

hazards, and implement worker protections to reduce

and eliminate hazards, preventing future workplace

injuries and illnesses.”9

The importance of recordkeeping is crucial to

maintaining high safety and health standards for

several reasons:

1.

No business is free of risk. There is always

the possibility that an employee will be

injured on the job.

2.

Maintaining records of all work-related

injuries and illnesses can illuminate ongoing

issues within the safety structure of a corporation or industry. Locating these weak points

can prevent more extensive injuries in the

future.

3.

Accurate records allow for more informed

decision making. This in turn leads to better

safety plans and more effective implementation of those plans.

8 After the enactment of federal law to create OSHA, the U.S.

Supreme Court found the statutory scheme did not violate the

constitutional right to be tried by a jury and was a proper subject for Congress to legislate under the Commerce Clause of the

federal Constitution. Atlas Roofing Co., Inc., v. Occupational

Safety and Health Review Commission, 430 U.S. 442 (1977).

9 www.osha.gov/recordkeeping

13

4.

Employees that are fully informed of the

risks and hazards found in their workplace

will be more likely to follow cautious work

practices and report workplace hazards that

may be overlooked by management.10

The State of Washington likewise recognized the

importance of recordkeeping with enactment of the

Washington Industrial Safety & Health Act (WISHA).

RCW 49.17.050 informs the director of labor and

industries’ rule-making authority, and specifically

addresses the importance of promulgating rules and

regulations that ensure adequate recordkeeping. That

statute provides in pertinent part that the director

shall:

(1) Provide for the preparation, adoption,

amendment, or repeal of rules and regulations

of safety and health standards governing

the conditions of employment of general and

special application in all workplaces; . . .

(5) Provide for appropriate reporting procedures

by employers with respect to such information

relating to conditions of employment which

will assist in achieving the objectives of this

chapter;

RCW 49.17.220 provides for specific actions to be

taken by employers regarding recordkeeping:

(1) Each employer shall make, keep, and

preserve, and make available to the director

such records regarding his or her activities

relating to this chapter as the director may

prescribe by regulation as necessary or

10 www.safetycounselling.com/tag/osha-recordkeeping/

14

appropriate for the enforcement of this

chapter or for developing information regarding the causes and prevention of occupational

accidents and illnesses. In order to carry

out the provisions of this section such

regulations may include provisions requiring employers to conduct periodic inspections.

The director shall also issue regulations requiring that employers, through posting of

notices or other appropriate means, keep

their employees informed of their protections and obligations under this chapter,

including the provisions of applicable safety

and health standards.

(2) The director shall prescribe regulations requiring employers to maintain accurate

records, and to make periodic reports of

work-related deaths, and of injuries and

illnesses other than minor injuries requiring

only first aid treatment and which do not

involve medical treatment, loss of consciousness, restriction of work or motion, or

transfer to another job.

(3) The director shall issue regulations requiring

employers to maintain accurate records of

employee exposures to potentially toxic

materials or harmful physical agents which

are required to be monitored or measured.

Such regulations shall provide employees or

their representatives with an opportunity to

observe such monitoring or measuring, and

to have access to the records thereof. Such

regulations shall also make appropriate

provisions for each employee or former

15

employee to have access to such records as

will indicate his or her own exposure to

toxic materials or harmful physical agents.

Each employer shall promptly notify any

employee who has been or is being exposed

to toxic materials or harmful physical agents

in concentrations or at levels which exceed

those prescribed by any applicable safety

and health standard promulgated under

this chapter and shall inform any employee

who is being thus exposed of the corrective

action being taken.

In the foregoing statute, the legislature of the

State of Washington recognized public policy regarding

the necessity for documentation of recordkeeping,

and the legitimacy of the State in addressing through

special rules the safety issues that result from

inadequate recordkeeping.

The importance of the lack of adequate recordkeeping on the part of employers of federal contract

workers at Hanford cannot be overstated. The extraordinary risk of exposure to radioactive materials is

uncontroverted. The additional risk associated with

the scarcity of recordkeeping is another reason that

the legislature of the State of Washington should be

given deference by the courts.

16

III. THE CREATION OF A PRESUMPTION OF WORKERS’

COMPENSATION COMPENSABILITY FOR CERTAIN

CLASSES OF WORKERS IS A WELL-GROUNDED

E XERCISE OF THE R ESPONSIBILITY AND

AUTHORITY OF THE STATES TO RECOGNIZE THAT

C ERTAIN W ORKERS A RE E XPOSED TO EXTRAORDINARY RISKS AND ARE ENTITLED TO RELIEF

FROM A BURDEN OF PROOF THAT IS OFTEN

DIFFICULT TO MEET. SUCH PRESUMPTIONS

GENERALLY NEED NOT BE PERFECTLY TAILORED

TO BE PERMISSIBLE. A STATE LEGISLATURE MUST

BE GIVEN BREATHING SPACE TO FASHION

LEGISLATION TO CARRY OUT ITS MANDATE TO

PROTECT THE HEALTH AND SAFETY OF ITS

CITIZENS.

The State of Washington was one of the first

states to enact a workers’ compensation statutory

system. From the beginning, employers were treated

differently based upon specific hazards their workers

faced. As with the presumption statute at issue in

this case regarding employers at the Hanford site,

the Washington legislature has traditionally considered

the risk of an employer.

Washington adopted a presumption of compensability for firefighters in 1987.11 Such presumption,

commonly called a “firefighter presumption,” is based

upon unique risks of men and women who work as

firefighters.

11 Wash. Rev. Code § 51.32.185. More than 20 states have

enacted similar presumption statutes for workers in hazardous

occupations, especially firefighters. See 4 Arthur Larson et al.,

LARSON’S WORKERS’ COMPENSATION LAW § 52.07(2) (2021).

17

A decade earlier, in 1977, in Oklahoma, the legislature created a statutory presumption that certain

occupational diseases or injuries suffered by firefighters

were compensable under the workers’ compensation

laws.

11 O.S. § 49-110(A) provides in pertinent part:

Any member of the fire department of any

municipality who is disabled as a result of

heart disease, injury to the respiratory

system, infectious disease, or the existence

of any cancer which heart disease, injury to

the respiratory system, infectious disease,

or cancer was not revealed by the physical

examination passed by the member upon

entry into the department, shall be presumed

to have incurred the heart disease, injury to

the respiratory system, infectious disease,

or cancer while performing the firefighter’s

duties as a member of such department

unless the contrary is shown by competent

evidence.

The appellate courts in Oklahoma have upheld

the constitutionality of the firefighter presumption.

In Johnson v. City of Woodward, 2001 OK 85, 38

P.3d 218 (2000), the Supreme Court of Oklahoma

held:

¶ 18 The legislature determined any member

of a fire department disabled as a result of

heart disease not revealed by the physical

examination passed upon entry into the

department is entitled to a presumption

such heart disease was incurred while performing duties as a member of the fire

18

department, unless the contrary is shown by

competent evidence. Although § 49-110(A)

may be inartfully drawn, it also is clear

from the plain language of this statute that

the legislature intended to weave this presumption into the Workers’ Compensation

system because it specifically provided the

workers’ compensation carrier should provide

the medical benefits to disabled firefighters.

(Emphasis added)

Even though the Supreme Court of Oklahoma

believed the firefighter presumption statute was

“inartfully drawn,” the Court found the legislature’s

intent was to create the presumption based upon the

hazards of being a firefighter in the line of duty.

In the most recent attack upon the constitutionality of the Oklahoma firefighter presumption, in

the case of City of Edmond v. Vernon, 2009 OK CIV

APP 36, 210 P.3d 860 (2008), 12 the Oklahoma Court

of Civil Appeals again upheld the constitutionality of

the statute, opining:

¶ 17 By adopting the presumption, the

Legislature recognized the importance of

firefighters in our society and the unique

danger of their occupation. While other first

responders are also faced with danger, the

firefighter must enter burning buildings

and is most directly exposed to smoke and

other hazardous materials, no matter how

sophisticated his or her equipment. The

Legislature reasonably concluded that such

12 The Supreme Court of Oklahoma denied certiorari in the case

on March 30, 2009, and the opinion was released for publication.

19

exposure might have a direct effect on a

firefighter’s health, and it applied the presumption to diseases whose causes are not

always known with medical certainty.

(Emphasis added)

Although the Oklahoma statute creating the

firefighter presumption may have been “inartfully

drawn,” the appellate courts looked at the statute

and gave deference to the legislature by holding :

“The Legislature reasonably concluded that such

exposure might have a direct effect on a firefighter’s

health . . . ”

States, in assessing the risks encountered by

firefighters, have the right to provide for an evidentiary

advantage for them. That advantage is based upon

extraordinary risk in the workplace. Such presumptions

are part of the workers’ compensation laws in many

states.13

A leading authority on the topic of firefighter

presumptions is The Honorable David B. Torrey, a

workers’ compensation judge for nearly three decades

13 See Presumptive Coverage for Firefighters and Other First

Responders, National Council on Compensation Insurance (NCCI),

November, 2018, www.ncci.com/Articles/Documents/InsightsResearch-Brief-Presumptive-Coverage.pdf; 6 “Non-cancer

occupational health risks in firefighters,” Institute of Occupational

Medicine, https://academic.oup.com/occmed/article-pdf/62/7/485/

4392951/kqs116.pdf, 2012; Firefighter Fatalities in the United

States—2017, National Fire Protection Association, https://

www.nfpa.org/-/media/Files/News-and-Research/Fire-statisticsand-reports/Emergency-responders/osFFF.pdf (June 2018).

20

for the Commonwealth of Pennsylvania, Department

of Labor and Industry.14 Judge Torrey wrote:

A key question on this topic is whether a

state’s firefighter cancer presumption law is

merely procedural or is, instead, evidentiary

in nature. This dichotomy has, notably,

been treated by the Larson treatise for

many years. Conclusions on this issue can

only be achieved by a study of the cases–no

state statute, to the writer’s knowledge,

actually announces whether the cancer presumption is substantive or procedural.

The predominant holding, as it turns out, is

that the formidable firefighter cancer presumption does indeed rise to the level of evidence. Legislatures have enacted cancer

presumption statutes in their compensation

laws to make it easier for a cancer-afflicted

firefighter to succeed with his or her case.

“The presumption,” one thoughtful court has

stated, was “enacted to relieve claimants

from the nearly impossible burden of proving

firefighting actually caused their disease . . . ”

[Wanstrom v. North Dakota Workers’ Compensation Bureau, 621 N.W. 2d 864 (North Dakota

2001)]

The presumption is thought appropriate as

legislatures have been persuaded that an

14 Judge Torrey is an adjunct professor at the University of

Pittsburgh School of Law and a former president of the National

Association of Workers’ Compensation Judiciary.

21

increased risk of cancer accompanies the

occupation of firefighter.15

Consistently, state legislatures and appellate

courts recognize that the increased risk of the work

of a firefighter is a rational basis for the enactment

of special treatment by way of a presumption.

The State of Washington, through its duly elected

legislature, evaluated the risk of certain employees

at the Hanford site and exercised its authority to

provide a presumption of compensability under circumstances contained in the provisions of HB 1723.

Similarly, the Washington legislature also created

rebuttable presumptions of compensability as a

response to the outbreak of coronavirus.16

The states are entitled to deference in fulfilling

their responsibility regarding the health and safety

of their citizens. The latitude of the states to protect

15 David B. Torrey, Firefighter Cancer Presumption Statutes in

Workers’ Compensation and Related Laws: An Introduction, www.

nawcj.org/wp-content/uploads/2019/06/NAWCJ-FIREFIGHTERPRESUMPTIONS.

16 The State of Washington created a statutory compensability

presumption for health care workers who contract an infectious

or contagious disease during a public health emergency. RCW

51.32.390 was a legislative response to the outbreak of

coronavirus. Pursuant to RCW 51.32.181, for “frontline employees,” there exists a prima facie presumption that any infectious

or contagious diseases that are transmitted through respiratory

droplets or aerosols, or through contact with contaminated

surfaces and are the subject of a public health emergency are

occupational diseases. RCW 51.32.185 creates a compensability

presumption for law enforcement officers who develop heart

problems within 72 hours of exposure to certain substances and

for contraction of infectious disease.

22

their workers allows for an imperfect statute and

risk-to-presumption ratio. In Oklahoma, where there

was an “inartfully drawn” statute, the courts gave

deference to the reasonable conclusions of the

Oklahoma legislature. Unquestionably, legislators

elected by the citizens of the State of Washington are

better situated than the courts to evaluate risk and

craft reasonable statutes to address that risk.

IV. THE ENACTMENT OF THE PRESUMPTION STATUTE

FOR FEDERAL CONTRACT WORKERS AT HANFORD

IS AUTHORIZED BY AN ACT OF CONGRESS AND IS

A R EASONABLE E XERCISE OF S OVEREIGN

LEGISLATIVE AUTHORITY BASED UPON UNIQUE

RISKS.

By enactment of 40 U.S.C. § 3172, Congress

consented to be treated in the same way and to the

same extent as if the premises were under the

exclusive jurisdiction of the State of Washington. As

with other statutory presumptions in Washington

and other states, RCW 51.32.187 constitutes a reasonable exercise of legislative authority based upon

risks uniquely faced by the category of persons protected by the statutory presumption.

The Washington legislature should be permitted

to adopt a presumption that applies to the vast

majority of Hanford site workers and is based on a

particular danger uniquely faced by federal contract

workers. Thus, such circumstances provide sufficient

support to target that category of workers.

The U.S. Department of Energy has made it a

top priority that the cleanup operation at Hanford

should ensure the health and safety of the federal

and contractor workforce and the citizens of

23

Washington. The State of Washington has the same

goal. The passage of the Washington statute serves

as an incentive to employers to provide safer working

conditions.

The state statute has not resulted in any discriminatory burden on the federal government and

the taxpayers to pay claims made for workers exposed

to the hazards of Hanford.

The federal government has spent billions of

dollars over three decades to begin the cleanup of the

Hanford site. A reporter, after an extensive tour of

the site, wrote:

Even as scientists continue to puzzle over

Hanford’s tank waste, and as contractors

flip the lights on in shiny new buildings,

concerns about massive cost overruns, contractor lapses, and missed deadlines weigh

heavily on the project. Hanford, born and

built feverishly in the heat of World War II,

now seems to be in a slow, meandering slog

toward an unseen finish line.17

The eventual cleanup cost of the Hanford site is

unknown, but the U.S. Department of Energy estimates

that number could approach $700 billion over the

next 60 years.18

17 Maria Galucci, A Glass Nightmare: Cleaning Up the Cold

War’s Legacy at Hanford, April 2, 2020, spectrum.ieee.org/

Hanford-nuclear-site, the official Website of the Institute of

Electrical and Electronics Engineers (IEEE), the world’s largest

technical professional organization with 400,000 members in

160 countries.

18 See 2019 Hanford Lifecycle Scope, Schedule and Cost Report,

pages ES-2 to ES-3, www.handford.gov/files.cfm/2019.

24

On the other hand, there is no evidence that the

enactment of the Washington presumption statute

will adversely affect the federal government’s workers’

compensation costs. Since the effective date of HB

1723, the number of workers’ compensation claims

filed annually at Hanford has declined. The pace of

claims using the presumption as the basis for

compensability has also declined, with a total of 259

claims filed in the first three years.19

19 Wash. Dep’t of Lab. & Indus., Hanford-Department of Energy

(DOE) Data, November, 2021.

25

CONCLUSION

The amicus curiae, Workers’ Injury Law &

Advocacy Group, requests the Court to sustain the

opinion of the Ninth Circuit that the State of Washington

had legal authority to create a compensability presumption under the state’s workers’ compensation laws

for workers exposed to hazardous working conditions

at the Hanford site.

Respectfully submitted,

BOBBY G. BURKE, ESQ

COUNSEL OF RECORD

308 N.W. 13TH STREET

OKLAHOMA CITY, OK 73103

(405) 802-1495

BOB@BOBBURKELAW.COM

JOSHUA T. GILLELAN, II, ESQ

LONGSHORE CLAIMANTS’

NAT’L LAW CENTER

1111 30TH STREET, N.W., SUITE 500

WASHINGTON, D.C. 20007

(202) 787-3832

JGILLELAN@COMCAST.NET

COUNSEL FOR AMICUS CURIAE

MARCH 23, 2022