Supreme Court strikes down Washington law related to Hanford workers
ECA Staff | 6/21/2022
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Today, the U.S. Supreme Court called a workers’ compensation law enacted in 2018 in Washington State unconstitutional, as it applied only to certain workers at a federal facility in the State who were “engaged in the performance of work, either directly or indirectly, for the United
States.”
The facility in question is the Hanford Site, part of the former nuclear weapons complex and current Department of Energy cleanup site. Most workers at the site involved in cleanup are federal contract workers—people employed by private companies under contract with the Federal Government. A smaller number of workers involved in the cleanup include State employees, private employees, and federal employees who work directly for the Federal
Government.
As compared to Washington’s general workers’ compensation scheme, the 2018 law made it easier for federal contract workers at Hanford to establish their entitlement to workers’ compensation, thus increasing workers’ compensation costs for the Federal Government.
The United States brought suit against Washington state, arguing that Washington’s law violates the Supremacy Clause by discriminating against the Federal Government. The District Court concluded that the law was constitutional because it fell within the scope of a federal waiver of immunity contained in 40 U. S. C. §3172. The Ninth Circuit affirmed. The Supreme Court disagreed.
Held: Washington’s law facially discriminates against the Federal Government and its contractors. Justice Stephen Breyer delivered the unanimous opinion of the Court.
In the opinion, the Court first ruled that the case is not moot. A case is not moot unless it is impossible for the Court to grant any effectual relief. The Court found that it is not impossible for the United States to recover money if the Court rules in its favor, and thus it is within the jurisdiction of the Court to issue a ruling.
The opinion went on the discuss arguments pertaining to the Supremacy Clause. The Constitution’s Supremacy Clause generally immunizes the Federal Government from state laws that directly regulate or discriminate against it. Congress, however, can authorize such laws by waiving this constitutional immunity.
A state law discriminates against the Federal Government or its contractors if it “single[s them] out” for less favorable “treatment,” or if it regulates them unfavorably on some basis related to their governmental “status.” The Supreme Court found that Washington’s law violates these principles by singling out the Federal Government for unfavorable treatment. The law explicitly treats federal workers differently than state or private workers, and imposes costs upon
the Federal Government that state and private entities do not bear. The law thus violates the Supremacy Clause unless Congress has consented to such regulation through waiver.
Congress waives the Federal Government’s immunity “only when and to the extent there is a clear congressional mandate.” Washington argues that Congress has waived federal immunity from state workers’ compensation laws on federal lands and projects through §3172(a), which says that “[t]he state authority charged with enforcing and requiring compliance with the state workers’ compensation laws . . . may apply [those] laws to all land and premises in the State which the
Federal Government owns,” as well as “to all projects, buildings, constructions, improvements, and property in the State and belonging to the Government, in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.”
The Court found, however, that one can reasonably read the statute as containing a narrower waiver of immunity than Washington read, namely, as only authorizing a State to extend its generally applicable state workers’ compensation laws to federal lands and projects within the State. Section 3172’s waiver thus does not “clear[ly] and unambiguous[ly]” authorize a State to enact a discriminatory law that facially singles out the Federal Government for unfavorable
treatment.
The Supreme Court also held that Washington’s arguments to the contrary are unconvincing.
Washington emphasizes that the waiver statute allows a State to apply its workers’ compensation laws to federal premises “as if the premises were under the exclusive jurisdiction of the State.” But those words follow the phrase “in the same way and to the same extent” and, read together, the language could plausibly be interpreted to allow only the extension of generally applicable workers’ compensation laws to federal premises. The statute thus does not clearly and
unambiguously permit the discrimination contained in Washington’s “federal workers only” law.
Washington next points to other congressional waivers of intergovernmental immunity that explicitly maintain the constitutional prohibition on discriminatory state laws. But the fact that Congress more explicitly preserved the immunity in other contexts does not mean that Congress clearly waived it in §3172(a).
Finally, Washington relies on Goodyear Atomic Corp. v. Miller, a case decided by the Supreme Court in 1988 that stated “the activities of federal installations are shielded by the Supremacy Clause from direct state regulation unless Congress provides "clear and unambiguous" authorization for such regulation.” That decision, however, said nothing about laws—such as the one here—that explicitly discriminate against the Federal Government. If anything,
statements from Goodyear Atomic tend to support, not undermine, the Supreme Court’s decision today.
To read the full syllabus and Supreme Court opinion, please click here.
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SAVE OUR DATES
September 21-23, 2022
NEW VENUE: CRYSTAL GATEWAY MARRIOTT IN ARLINGTON, VA!
We are pleased to host the 2022 National Cleanup Workshop at the Crystal Gateway Marriott in Arlington, VA. Join us to discuss a new era of cleanup success. Hear from senior DOE officials, local government officials, and industry leaders about DOE's cleanup priorities, the future of the workforce, and more.
Additional information on registration and hotel room blocks is available here. We look forward to seeing you in September!
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SAVE OUR DATES
August 3-5, 2022
Salt Lake City Marriott University Park
Recognizing the opportunity to address goals shared broadly among U.S. Department of Energy program offices and in frontline communities across the federal nuclear complex, the Energy Communities Alliance will host the ECA Forum: Hosting New Nuclear Development on August 3-5,
2022 at the Salt Lake City Marriott University Park.
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New GAO report highlights DOE opportunities for Hanford cleanup
ECA Staff | 6/16/2022
On June 14, the Government Accountability Office (GAO) released a report highlighting opportunities for the Department of Energy (DOE) to better ensure effective startup and sustained low-activity waste operations at the Hanford site in Washington state.
There are 54 million gallons of radioactive liquid waste being held in aging underground storage tanks at the Hanford site. To help treat some of this waste, DOE created the Direct-Feed Low-Activity Waste (DFLAW) program, and built and modified several waste treatment facilities. While these facilities are mostly complete, DOE faces challenges in starting operations.
For example, according to DOE risk management documents, there is a high risk of inadequate availability of replacement parts and operating supplies for certain facilities, which will likely delay the DFLAW program schedule and increase costs. In addition, some equipment is likely to be obsolete by the time DFLAW facilities are operational, which would potentially delay the DFLAW program schedule and increase cost. According to DOE risk planning documents,
several significant challenges may not be resolved by the end of hot commissioning using actual radioactive waste, and the start of normal DFLAW operations.
DFLAW program schedule and cost estimates do not fully follow best practices
DOE reviews and GAO assessments indicate that the DFLAW schedule and cost estimates do not reflect characteristics of reliable estimates. DOE estimates that it will complete the work to start DFLAW operations by December 31, 2023, at a cost of approximately $8.3 billion.
However, according to a January 2020 report by DOE’s Office of Project Management, many of the estimates that exist to complete facilities and systems and start DFLAW operations are based on immature and unproven designs or are characterized as rough estimates and, as a result, the estimates are of limited reliability.
According to DOE’s report, this causes a high level of uncertainty associated with budget forecasts for the year beyond the current fiscal year. Furthermore, in December 2020, DOE’s Office of Project Management concluded that DOE’s schedule to start DFLAW operations is optimistic and that the cost estimate to complete DFLAW facilities and systems is understated.
Furthermore, GAO analyses found that DOE did not fully follow best practices associated with the characteristics assessed for schedule and cost estimates.
DOE has substantially followed some, but not all, best practices for developing a schedule that reflects the comprehensive and well-constructed characteristics of a reliable schedule estimate for the DFLAW program, and DOE has partially met best practices for developing a comprehensive cost estimate.
DOE faces several significant challenges to starting DFLAW operations on schedule
GAO identified 11 risks that represent significant challenges that DOE faces in starting and operating DFLAW facilities and systems.
The table below lists these challenges and includes the (1) unmitigated and residual assessments that DOE used to rate the risk level of associated challenges; (2) approximate chances of the challenges occurring based on DOE subject matter professional judgment and evidence available; and (3) approximate potential impacts on schedule and cost.
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Several challenges may persist during DFLAW operations and could result in delays and increased cost
According to DOE officials, DOE has taken some steps to address the 11 significant challenges we identified. However, it is possible that several of the challenges associated with starting DFLAW operations may not be fully mitigated or resolved when DFLAW operations are scheduled to start, which may increase the cost of the program.
According to DOE’s risk planning documents and DOE officials, the following challenges may persist after DFLAW operations begin:
- Delayed evaluation approval for the disposal of DFLAW program treated waste
- Inadequate replacement parts and operating supplies for WTP Facility (a waste treatment plant at Hanford)
- Aging equipment is inoperable or obsolete
According to DOE reports, DOE’s aggressive strategy with optimistic scheduling for the WTP project does not provide the necessary schedule flexibility to address these and other challenges that are likely to occur.
Conclusions and recommendations
The report concludes that ensuring the resolution of all design and construction challenges and problems with facilities, systems, and components needed to start and sustain DFLAW operations would provide DOE with better assurance that the facilities needed for DFLAW meet nuclear quality and safety requirements. Furthermore, resolving challenges and problems by the end of hot commissioning will ensure that the costs to resolve challenges and problems do not fall on
DOE.
GAO also provides the following recommendations:
- The Assistant Secretary of Environmental Management (EM) should ensure that schedule estimates for the DFLAW program are developed and updated in accordance with GAO best practices.
- The Assistant Secretary of EM should ensure that cost estimates for the DFLAW program are developed and updated in accordance with GAO best practices.
- The Assistant Secretary of EM should ensure that the review of the contractor’s management system for DFLAW facilities is completed to verify compliance with DOE requirements.
- The Assistant Secretary of EM should ensure that existing challenges and problems identified in its review of facilities, systems, and components related to DFLAW are resolved by the end of hot commissioning.
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Read about DOE's High Level Waste Interpretation
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Interested in learning more? Read the ECA report “Making Informed Decisions on DOE's Proposed High Level Waste Definition” at www.energyca.org/publications
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