Federal judge affirms AG authority to sue Department of Energy
OLYMPIA — A federal judge rejected the U.S. Department of Energy’s motion to dismiss a lawsuit by Attorney General Bob Ferguson over longstanding worker safety issues at the Hanford Nuclear Reservation.
U.S. District Court for the Eastern District of Washington Judge Thomas Rice ruled today that Ferguson has the authority to bring the lawsuit, rejecting Energy’s argument that, among other things, the federal agency is not endangering a sufficient number of Washingtonians to allow the state to sue.
“This motion was just another example of the federal government’s culture of indifference to worker safety at Hanford,” Ferguson said. “Rather than continuing to evade responsibility with procedural motions, the federal government and their contractor should focus on protecting Washington workers.”
Ferguson filed a lawsuit in September 2015 against Energy and its contractor, Washington River Protection Solutions (WRPS), alleging that hazardous tank vapors pose a serious risk to workers at Hanford. Today’s ruling means that lawsuit can proceed.
After more than 50 workers were exposed to toxic tank vapors earlier this year, Ferguson asked a federal court to immediately order Energy and WRPS to implement enhanced safety and vapor monitoring measures.
The Attorney General filed a motion for preliminary injunction in the U.S. District Court for the Eastern District of Washington. Hanford Challenge, an advocacy group promoting worker health and safety, and UA Local 598, filed a similar motion in their own worker safety lawsuit.
Those motions are still pending a ruling from the court.
A trial before Judge Rice is set for Sept. 18, 2017, but workers cannot wait that long to have a safe workplace. By pursuing a preliminary injunction, the Attorney General and Hanford Challenge seek to prevent further harm to Hanford workers by implementing certain protections now, in advance of trial.
Additional documents related to the motion for preliminary injunction are available here.
The parties are all asking the court for the following immediate relief:
- Mandatory use of supplied air at all times for all personnel working within the perimeter fence lines of the tank farms;
- During waste disturbing activities, establishment of an expanded vapor control zone not less than 200 feet outside the perimeter fence line of the affected tank farms, and effective barricading of all roads and access points to prevent entry into the expanded zone;
- Mandatory use of supplied air for all personnel working inside a vapor control zone, including the expanded zone described above; and
- Installation and use of additional monitoring and alarming equipment in affected tank farms during waste disturbing activities, to include optical gas imaging cameras, optical spectrometers, optical stack monitors, and VMD integration software, to warn workers when toxic vapors are being emitted.
From the state’s brief:
“This year’s exposures are far from isolated events. For decades, workers have gotten sick from inhaling poisons from the tank farms. Energy has studied the problem over, and over, and over. Each study it has commissioned since 1992 included recommendations for protecting workers from chemical vapors. But the recommendations have not been adequately implemented, little has changed, and workers continue to get sick. Preliminary injunctive relief is needed to break this pattern now, until a full adjudication of the State’s claim can be made."
Hanford Challenge and UA Local 598 are represented by the Smith and Lowney firm, Terrell Marshall Law Group, both based in Seattle, and Public Justice, a national public interest law firm based in Washington, D.C.
Hanford’s 177 underground storage tanks contain more than 50 million gallons of toxic waste, the byproducts of decades of plutonium production.
Over a span of just a few days in late April and early May 2016, at least 48 Hanford tank farm workers were exposed to vapors emitted from the tanks, with 56 exposed by the end of June. Within minutes to hours of breathing in these toxic fumes, workers experienced nosebleeds, chest and lung pain, headaches, coughing, sore throats, irritated eyes, and difficulty breathing.
The long term effects of these exposures are not yet fully known, but past vapor exposures from the tank farms have caused permanent lung damage and brain damage in workers, among other debilitating conditions.
Hundreds of workers have been similarly exposed since the early 1980s. Since that time, at least 19 reports have been issued about tank vapors and exposures, yet workers continue to get sick.
The Department of Energy’s own study, the Tank Vapors Assessment Team Report, completed just 18 months ago, again warned that not enough was being done to protect workers from harm. Yet instead of fully implementing its own recommendations from the report, Energy and WRPS reduced safety measures at the tank farms, including reductions in the use of supplied air.
The latest round of exposures came after these safety reductions.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.
Peter Lavallee, Communications Director, (360) 586-0725; PeterL@atg.wa.gov