Hanford Worker Resource for

Presumption of Illness Law



Last Updated: September 2, 2023

Hanford Challenge provides this Resource for Hanford’s Presumption of Illness Law webpage as a resource for Hanford workers, other radiological hazardous waste facility workers, their friends and family, and other advocates to help understand the complicated history and current status of RCW 51.32.187 (“Hanford Presumption”). It is important to note that although this resource will focus on Hanford workers, the law applies  to other radiological hazardous waste facilities throughout Washington State as well (excluding military installations). 

Please be aware: The information provided does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available are for general informational purposes only. Information may not be up-to-date legal or other information. If you are in need of legal advice, contact an attorney.


PHOTO: Washington Gov. Jay Inslee signed into law new protections for workers at the Hanford Nuclear Site joined by advocates for the law, including Hanford Challenge’s Tom Carpenter, Nikolas Peterson, and Britany Kee’ ya aa. Lindley; Plumbers and Steamfitters Union Local 598’s Randy Walli, Nickolas Bumpaous, and Jim Millbauer; and former Hanford workers and their families Lonnie and Melinda Rouse, Abe Garza and Bertolla Bugarin, Don Slaugh, and Ed Bricker. CREDIT: TVW [1]

HISTORY

  • Washington State coverage for presumptive occupational disease began in 1987 when the WA Legislature recognized that firefighters as a class have a higher rate of respiratory disease than the general public and found that respiratory disease should be presumed to be occupationally related for industrial insurance purposes. This presumption law has led to other presumption laws being passed, including RCW 51.32.187 which is applicable for Hanford workers [referred to herein as the Hanford Presumption]. [2]

PHOTO: Abe Garza, retired Hanford Worker,  pictured with his bin filled with medicines to treat his permanent lung damage and brain damage from exposure to toxic chemical vapors at the jobsite. CREDIT: KING5 [5]

  • Many Hanford workers have had their health affected by exposure to toxic and radioactive materials while working at Hanford Nuclear Site. Following the chemical vapor exposures from Hanford's underground radioactive waste tanks in 2014, in which more than 50 workers were exposed to toxic vapors, Hanford Challenge and United Association of Plumbers and Steamfitters Local Union 598 through its attorneys at Smith and Lowney, P.L.L.C, brought suit and settled its case against U.S. Department of Energy and the contractor, Washington River Protection Solutions. [3]

  • In addition to success in the courtroom, Hanford Challenge, Local 598, and Hanford workers took to the hill in Olympia to advocate for a new worker compensation law to provide Hanford workers with a presumption of causation for a list of illnesses. The law’s passage was in large part motivated by the testimony from numerous Hanford workers who had become sickened with serious and long-term illnesses resulting from exposure to toxic vapors at Hanford. Advocates also provided written testimony, for example Hanford Challenge testimony. [4]

  • In March 2018, the WA Legislature passed the Hanford Presumption [HB 1723] and the law took effect on June 7, 2018. It originally covered certain U.S. Department of Energy (U.S. DOE) Hanford site workers, including contractors or subcontractors, who worked onsite for at least one eight-hour shift while covered under Washington’s industrial insurance. [6]

  • In December 2018, the U.S. Department of Justice filed a lawsuit against Washington State in an effort to repeal the Hanford Presumption arguing that the law was unconstitutional and discriminatory against the federal government, which owns Hanford Nuclear Site. [7]

PHOTO: Washington Attorney General Bob Ferguson making a statement to the press vowing the State’s intent to fight the Federal Government’s suit to repeal the Hanford Presumption law joined by advocates for the law, including Hanford Challenge’s Tom Carpenter and Nikolas Peterson and the Board and members of Plumbers and Steamfitters Union Local 598. CREDIT: King5 News [9]

“Shame on the Trump Administration for attacking a law that helps Hanford Nuclear Site workers get medical care and compensation. These workers are sacrificing their health and safety carrying out the most hazardous and complicated cleanup in the nation, and they deserve better,” said Tom Carpenter, Executive Director of Hanford Challenge. [8]

  • In March 2022, the WA Legislature introduced SSB 5890 to change and expand the Hanford Presumption law to (1) cover a more generic definition of workers beyond Hanford Nuclear Site to include workers of other radiological hazardous waste facilities (excluding military) and (2) exclude communicable diseases from the covered conditions of respiratory diseases and neurological diseases. The law took effect on March 11, 2022. [10] 

  • In June 2022, the Supreme Court of the United States ruled in favor of U.S. DOJ, finding that the 2018 Hanford Presumption law was unconstitutional under the “Supremacy Clause.” [11] 

  • The Supreme Court’s June 2022 ruling did not impact SSB 5890, which is codified at RCW 51.32.187. The law has not been challenged by U.S. DOJ and remains in effect.

THE LAW

In short, the law provides a presumption of illness for specific diseases and conditions suffered by workers and former workers who have worked at least an eight hour shift at radiological hazardous waste facilities in Washington. The presumption is intended to help exposed workers in the benefits claims process and may only be denied by clear and convincing evidence.

RCW 51.32.187 Exposed workers—Prima facie presumption of certain occupational diseases—Rebuttal—Definitions. [12]

(1) The definitions in this section apply throughout this section.

(a) "Exposed worker(s)" means a worker working at a radiological hazardous waste facility for at least an eight hour shift covered under this title, including conducting an inspection of the facility.

(b) "Radiological hazardous waste facility" means any structure and its lands where high-level radioactive waste as defined by 33 U.S.C. Sec. 1402 or mixed waste as defined by WAC 173-303-040 is stored or disposed of, except for military installations as defined in 31 C.F.R. Part 802.227 and listed in Appendix A to 31 C.F.R. Part 802.

(2)(a) For exposed workers who are covered under this title, there exists a prima facie presumption that the diseases and conditions listed in subsection (3) of this section are occupational diseases under RCW 51.08.140.

(b) This presumption of occupational disease may be rebutted by clear and convincing evidence. Such evidence may include, but is not limited to, use of tobacco products, physical fitness and weight, lifestyle, hereditary factors, and exposure from other employment or nonemployment activities.

(3) The prima facie presumption applies to the following:

(a) Respiratory disease, except communicable diseases;

(b) Any heart problems, experienced within seventy-two hours of exposure to fumes, toxic substances, or chemicals at the site;

(c) Cancer, subject to subsection (4) of this section;

(d) Beryllium sensitization, and acute and chronic beryllium disease; and

(e) Neurological disease, except communicable diseases.

(4)(a) The presumption established for cancer only applies to any active or former exposed worker who has cancer that develops or manifests itself and who either was given a qualifying medical examination upon becoming such a worker that showed no evidence of cancer or was not given a qualifying medical examination because a qualifying medical examination was not required.

(b) The presumption applies to the following cancers:

(i) Leukemia;

(ii) Primary or secondary lung cancer, including bronchi and trachea, sarcoma of the lung, other than in situ lung cancer that is discovered during or after a postmortem examination, but not including mesothelioma or pleura cancer;

(iii) Primary or secondary bone cancer, including the bone form of solitary plasmacytoma, myelodysplastic syndrome, myelofibrosis with myeloid metaplasia, essential thrombocytosis or essential thrombocythemia, primary polycythemia vera (also called polycythemia rubra vera, P. vera, primary polycythemia, proliferative polycythemia, spent-phase polycythemia, or primary erythremia);

(iv) Primary or secondary renal (kidney) cancer;

(v) Lymphomas, other than Hodgkin's disease;

(vi) Waldenstrom's macroglobulinemia and mycosis fungoides; and

(vii) Primary cancer of the: (A) Thyroid; (B) male or female breast; (C) esophagus; (D) stomach; (E) pharynx, including all three areas, oropharynx, nasopharynx, and hypopharynx and the larynx. The oropharynx includes base of tongue, soft palate and tonsils (the hypopharynx includes the pyriform sinus); (F) small intestine; (G) pancreas; (H) bile ducts, including ampulla of vater; (I) gall bladder; (J) salivary gland; (K) urinary bladder; (L) brain (malignancies only and not including intracranial endocrine glands and other parts of the central nervous system or borderline astrocytomas); (M) colon, including rectum and appendix; (N) ovary, including fallopian tubes if both organs are involved; and (O) liver, except if cirrhosis or hepatitis B is indicated.

(5)(a) The presumption established in this section extends to an exposed worker following termination of service for the lifetime of that individual.

(b) A worker or the survivor of a worker who has died as a result of one of the conditions or diseases listed in subsection (3) of this section, and whose claim was denied by order of the department, the board of industrial insurance appeals, or a court, can file a new claim for the same exposure and contended condition or disease.

(c) This section applies to decisions made after June 7, 2018, without regard to the date of last injurious exposure or claim filing.

(6)(a) When a determination involving the presumption established in this section is appealed to the board of industrial insurance appeals and the final decision allows the claim of benefits, the board of industrial insurance appeals shall order that all reasonable costs of the appeal, including attorneys' fees and witness fees, be paid to the worker or his or her beneficiary by the opposing party.

(b) When a determination involving the presumption established in this section is appealed to any court and the final decision allows the claim for benefits, the 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.

ADDITIONAL RESOURCES

  • Hanford Workers Engagement Center  is a collaborative partnership that works to provide experience and solutions to help Hanford workers who were injured or became ill on the job. HWEC specifically provides help with claims or questions related to Beryllium sensitization or chronic beryllium disease; State of Washington Workers’ Compensation Program; DOE’s third party administration for the Workers’ Compensation Program; Energy Employees Occupational Illness Compensation Program Act (EEOICPA); Former workers medical screening; and Hanford contractor specific programs. Their website also provides additional resources. Their contact information is:

  • Nuclear Workers Institute of America is a nuclear worker advocacy group that volunteers its time (no cost to the worker) to help former and current nuclear workers with filing a claim under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). 

  • Hanford Challenge is an ally and resource to Hanford Nuclear Site workers, former workers, and their families. Contact us if you would like to know more.

[1] Photo is a screenshot taken from Governor Inslee Bill Signing Ceremony [2ESHB 1508 and SHB 1723], TVW starting at 7 minutes 40 seconds (03/07/2018).

[2] Presumption Law for Radiological Hazardous Waste for Workers, Health Care and Frontline Workers, WA DEPT. OF LABOR & INDUSTRIES at 3 and 5 (2022).

[3]  Chemical Vapor Exposures, HANFORD CHALLENGE (2014-2016).

[4]  Hanford continues to mislead workers about toxic vapors, KING5 NEWS (06/08/2016).

[5] Chemical Vapor Exposures, HANFORD CHALLENGE (2014-2016); Public Hearing: [...] SB 5940, SENATE LABOR & COMMERCE COMMITTEE at 01:09:40 - 01:24:57 (01/10/2018); Written Testimony on SB 5940, HANFORD CHALLENGE (01.10.2018).

[6]  Presumption Law for Radiological Hazardous Waste for Workers, Health Care and Frontline Workers, WA DEPT. OF LABOR & INDUSTRIES at 3 and 5 (2022). See also Jay Inslee Signs Legislation Aimed At Helping Hanford Workers, NW PUBLIC BROADCASTING (03/07/2018); Bill History HB 1723, WA STATE LEGISLATURE (2017-18).

[7] Governor, AG vow to fight Feds’ suit to repeal Hanford sick worker law, KING5 NEWS (12/11/2018).

[8]  Hanford continues to mislead workers about toxic vapors, KING5 NEWS (06/08/2016).

[9] Photo is a screenshot taken from Attorney general visits Tri-Cities to support ill Hanford workers, KING5 NEWS at 26 seconds (09/17/2021). 

[10] Substitute Senate Bill 5890 (March 11, 2022). Presumption Law for Radiological Hazardous Waste for Workers, Health Care and Frontline Workers, WA DEPT. OF LABOR & INDUSTRIES at 6 (2022).

[11] United States v. Washington et al., 596 U. S. No. 21-404 (2022). See also  Supreme Court overturns Hanford workers' comp law but protections still in place, KING5 NEWS (06/21/2022).

[12]  RCW 51.32.187 (2022).