Washington state's top lawyer said Wednesday that he plans to sue the federal government over the longstanding failure to protect workers from toxic chemicals at the Hanford Site, where millions of gallons of radioactive and chemically toxic waste is stored.
This is the first time in state history that the Attorney General has initiated legal action against the US Department of Energy on behalf of Hanford workers and their health and safety. In announcing his action, Bob Ferguson said the state isn't going to take this disregard for the well-being of the workforce anymore.
"It is not acceptable for the federal government to expose workers in the state of Washington to known health dangers. I won't accept it. The time for study is over. It is now time to act," said Ferguson.
Ferguson's legal action is aimed at stopping future vapor exposures through significant improvements in worker safety protocols at the 586-square-mile site in southeastern Washington.
What the action fails to do is shine a light on a worker's compensation system that is focused on clearing sickened workers for duty and denying them the benefits designed to help employees who've been injured on the job. Workers are left to fight the government to pay for medical treatments, diagnostic procedures and medications, despite the documented short- and long-term adverse health effects of breathing chemical vapors discharged from aging waste tanks at Hanford.
The vapor exposure problem at Hanford is not new. For decades, workers have required medical attention after being exposed to some of the 2,000 known chemicals contained in the 177 radioactive waste tanks at the site.
But an unprecedented number of exposures starting in March, revealed by KING 5, brought the problem back into focus. So far this year, at least 54 Hanford workers have required medical attention after breathing in the toxic fumes. Some of these workers continue to report serious health problems months after the exposure. Yet to date, nearly every worker exposed in 2014 has had his or her application for workers compensation denied.
One of those workers is Steve Ellingson, a radiation specialist, who sought treatment at a hospital in Richland after he inhaled toxic vapors on March 19 in one of Hanford's tank farms during routine work.
"I'm still suffering the effects," Ellingson said recently. "I've said it before and I'll say it again. I breathed something out there in a tank farm and it affected my life and I know there are other people still being affected."
Although Ellingson continues to experience shortness of breath, fatigue and irritated vocal chords, the state of Washington notified him in August that his worker's compensation claim would close on September 5. After that he was on his own to pay for medical visits, treatments, diagnostic procedures such as a CT scan and medications, including a steroid inhaler.
"You're as good as you can be medically. Medically, you're sound and that's why we're closing your claim," Ellingson said, describing the message he got.
Unlike most workers in Washington state, Hanford's employees are not covered by the worker's compensation system overseen by the state's Department of Labor and Industries. Instead, they are part of a self-insured system funded by the U.S. Department of Energy.
The federal government pays a contractor -- Penser North America -- to administer the program. Penser staff evaluate workers compensation claims and advise the state's L & I whether to accept or reject them.
The physician paid by Penser to review Ellingson's case determined "there's no evidence of work related impairment." The doctor concluded that the 26 year Hanford veteran "most likely encountered an irritating odor" from an "unknown source." Ellingson, the doctor said, was fit for duty.
That physician is Larry Smick, a Penser contractor who lives and works in Bremerton. He never met Ellingson in person before issuing his finding. His conclusions were based on the review of his medical file provided to him by Penser.
Interviews with former workers, and reviews of emails and other documents obtained by KING 5 show that Smick has a longstanding history of dismissing Hanford workers harmed by chemical vapor exposures.
In 2002, a Hanford electrician reported burning lungs, chronic nose bleeds and a gag reflex after breathing toxic fumes at work.
"My voice is still not the same," said the worker, Steve Lewis.
Lewis went to the on-site medical clinic, where Dr. Larry Smick was the top doctor at the time.
Smick determined that Lewis's symptoms were likely the result of a pet or other allergy. Lewis said he was surprised by that finding, especially since Smick appeared to be sympathetic during his evaluation. Lewis also said he does not have a history of allergies.
Smick and the workers compensation system at Hanford were also the subject of a federal investigation in 2000 after emails surfaced in which Smick directed medical clinic staff to stop helping workers with their compensation claims.
"Please do not encourage workers to file worker's compensation claims," Smick wrote. "We could be invited off the site [i.e. the clinic could lose its contract with the Dept. of Energy] if that behavior continues."
The investigation by the Energy Department's Inspector General found that the clinic's practices and protocols were "consistent with standard occupational medical practices," but faulted Smick's employer for "weaknesses" in its administrative protocols. Dr. Smick told KING the report "exonerated him".
A 2003 report by the Government Accountability Project detailed what it said was a culture of minimizing worker claims at the medical clinic. That report, "Knowing Endangerment," specifically noted Smick's role in controlling which staff evaluated workers and how their cases were classified in clinic records.
Penser North America declined KING 5's request for an on camera interview to answer questions about why Smick continues to review Hanford workers' claims. In a prepared statement, the company said it does not make a final determination of a worker's claim. That decision, the company said, is made by the Washington Department of Labor and Industries.
An L&I spokesperson confirmed that to be true, but noted that the department's determination is based entirely on the information provided by Penser.
Dr. Smick declined an interview but also sent a statement saying that he does not feel pressure from his employer to rule against workers' claims. He said he makes a fair assessment based on information provided to him by Penser.
The Department of Energy's Richland office declined to comment for this story.
What are the vapors?
The vapors are discharged by nuclear waste accumulated over decades from the messy process used to make plutonium for the U.S. nuclear arsenal. Uranium fuel rods from nuclear reactors were dissolved with caustic acids to obtain the small amount of plutonium contained in them. A total of 56 million gallons of sludge generated over decades remains to be permanently treated and stored. Highly radioactive, the self-heating waste vents gases to the atmosphere without warning, through filters that are capable of blocking radioactive particles but not toxic chemicals.
Expert panel finds claims being denied on faulty science
In a report released in October, a panel of experts hired by the US Dept. of Energy and its contractor that manages the tank farms, Washington River Protection Solutions, was highly critical of Hanford's vapor program, as well as the medical case evaluation process after a worker is exposed. The expert committee, called the Tank Vapor Assessment Team (TVAT), paid at least $2 million for their expert review, opined that workers are being denied benefits based on faulty science and that the system needs to be redesigned to better help sick workers.
The team found that deciding whether or not an illness or injury is work related is currently being determined by inaccurate information and assumptions. They suggest that every worker's comp claim decision should be re-evaluated using accurate data.
"Relying primarily upon long-term monitoring, after-the-fact grab samples, or non-chemical specific direct readings is inadequate," wrote the TVAT team. "Given the current limitations in the understanding of vapor exposures, the relationships between exposure and symptom onset, and reported symptoms….a presumption of work-relatedness is consistent with Occupational Safety and Health Administration (OSHA) guidance. Previous medical determinations should be re-visited based on a more thorough understanding of the uses and limitations of the monitoring data."
Penser North America evaluates claims in accordance with Washington Revised Code Title 51. It is up to the Washington State Department of Labor and Industries (L&I) to allow or deny claims. In the event of claim denial, a worker can file a future claim if they feel they develop a work-related condition. In accordance with Washington State law, the allowance or denial of claims by L&I is based on the opinion of doctors, usually the worker's doctor, and state law.
In some cases, Penser requests an independent examination by an L&I approved doctor, such as Dr. Smick. The independent examination conclusions are provided to the worker's doctor. In the event the worker's doctor disagrees with the independent examiner's opinion, an additional independent medical examiner is appointed. The opinions of the worker's doctor and the independent medical examiners are provided to L&I to make a coverage determination. L&I is the only agency with the authority to allow or deny claims.
I have been asked by North American Pensor to review the industrial hygiene data to that is collected during/after an "vapor event" to assess if there is any objective evidence of a toxicant and if so, would the dose (level of exposure) be sufficient to cause an adverse heath effect. These levels are published by OSHA and are known as permissible exposure limits. I have a Master's degree in Industrial Hygiene and a second Master's in Environmental Science as well as being Board Certified in my specialty of Occupational Medicine. I also have some knowledge of the Hanford site being a staff physician there for nine years retiring in 2004. I am asked to both qualify and quantify the vapor data sent to me....so far that has been difficult but I have to depend upon the data that is sent to me. I know that the people at Hanford are really trying to get a handle on the vapor situation. I feel more pressure to do it right than to please any particular party. I just want to do a good job and be fair to both sides when I am asked to review a case. Sometimes my sense of medical integrity has caused problems in that one's decision or medical opinions are disappointing or rejected by one side or the other. That is a role that an occupational medicine physician sometimes has to accept unlike a family physician who is always the patient advocate. I think Pensor [sic] uses other physician to review these cases. ...
I do not really feel any pressure nor did I at Hanford when I was a staff physician there. I always base my reports on the medical evidence before me and the exposure data that has been collected. If there is no quantification or qualification of exposure then one cannot link an adverse health effect to an unknown. There are steps that one must take in assessing a case. It is not easy and takes some training and experience. Maybe Hanford will get better an qualifying those vapor smells and events and then one can be more confident in predicting adverse health effect from them. I know they have a new committee to work on the problem.
From time to time, as medical directors would come and go (they do not last long at Hanford) I would be pulled up to be the acting medical director. This was a role I did not cherish as I am clinically orientated and love working with patients more than doing administrative work. I would go back to a staff physician as soon as someone would accept the job as medical director.