9th Cir. Upholds Presumption for Federal Nuclear Site Contractors

Frank Ferreri

Seattle, WA (WorkersCompensation.com) – Workers cleaning up federal nuclear sites may face a number of long-term work-related health issues prompting workers’ compensation claims.

Thanks to a ruling from the 9th U.S. Circuit Court of Appeals, U.S. v. Washington, No. 19-35673 (9th Cir. 08/19/20), some of those workers can rely on a presumption of compensability to build their case against federal government employers at a site in Washington State.

Nuclear Site, Presumption

From 1944 to 1989, a now-decommissioned nuclear production site in the Evergreen State produced nearly two-thirds of the nation’s weapons-grade plutonium and also generated “significant amounts of highly radioactive and chemically hazardous waste.”

Cleaning up the site, which produced 270 billion gallons of contaminated groundwater, 25 million cubic feet of buried or stored solid waste, 2,300 tons of spent nuclear fuel, and 20 tons of plutonium bearing materials, has, over the years, involved some 100,000 U.S. Department of Energy contractor employees.

As is expected at nuclear sites, these employees have faced exposure to radioactive substances and hazardous chemicals.

Federal law allows private contractors working on federal land, such as those contracted by the U.S. Department of Energy to clean up the Washington site, to pursue state workers’ compensation claims.

With this in mind, the state passed a law that, for workers at the site, established a presumption that certain conditions and cancers are occupational diseases. The presumption applies for a worker’s lifetime. This presumption is rebuttable with “clearing and convincing” evidence that something not related to working at the site caused the condition.

The federal government, contending that the state law went too far and violated the doctrine of intergovernmental immunity, sued the state in federal court. Intergovernmental immunity refers to principles under which state laws generally aren’t allowed to legally harm the federal government.

Losing its case in District Court, the government appealed to the 9th U.S. Circuit Court of Appeals.

Federal Law

Under 40 USC 3172, states may apply their workers’ compensation laws to federal lands and projects in the same way they would if the premises were only under state law.

The 9th Circuit upheld the lower court’s decision and rejected the government’s argument that 40 USC 3172 doesn’t allow states to pass laws that single out federal agencies or their contractors.

“The plain text of [Section] 3172 does not purport to limit the workers’ compensation laws for which it waives intergovernmental immunity to only those that are ‘generally applicable,’” the 9th Circuit reasoned. “We are not free to add text to a statute that is not there.”

Similarly, the court rejected the government’s argument that the state law discriminatorily applied only to site workers who work for the federal government, without any application to state or private entities that performed work there. According to the 9th Circuit, 40 USC 3172 doesn’t allow the government to make such an argument.

“Congress codified the federal interest in [Section 3172],” the court wrote. “This statute authorizes the states to apply workers’ compensation laws to federal land located in the state without limitation and thus permits the distinction that [the Washington law] draws.”

The 9th Circuit underscored that 40 USC 3172 authorizes states to apply their workers’ compensation authority to federal lands as they would to their own lands. As a result, the court concluded that the Washington law fell within the scope of 40 USC 3172 and didn’t violate the doctrine of intergovernmental immunity.

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