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By ELANA SCHOR of Greenwire
Published: September 9, 2010

National Guardsmen from three states who charge defense contractor KBR Inc. with exposing them to a carcinogenic chemical during the Iraq war scored a win in an Oregon federal court last week — and more high-profile help for the soldiers’ plight could be coming soon on Capitol Hill.

“This is not just a one-day story,” Rep. Earl Blumenauer (D-Ore.) said of the service members now suffering health problems that they link to contact with hexavalent chromium, the heavy metal famously fought by activist Erin Brockovich. “This is one we’re all going to learn from.”

A federal magistrate ruled Aug. 30 that 21 Oregon Guardsmen could continue their fraud and negligence suit against KBR, finding that the contractor waited months to inform the soldiers of their exposure to a corrosion-fighting compound that included hexavalent chromium. The Oregon group is joined by Guard veterans in West Virginia and Indiana, as well as a British Air Force member, who have also taken on KBR in court, prompting a vigorous defense from the company.

Blumenauer, along with 11 House members and seven senators, has endorsed a bipartisan bill that would require the military to notify soldiers of any potential exposures to hazardous chemicals during their service. But he plans to open a new legislative front after court filings in the Oregon case revealed that KBR’s contract with the Army included an indemnification clause that could leave the government responsible for any damages awarded to the Guardsmen.

One day after the Oregon veterans notched their preliminary victory, Secretary of the Army John McHugh told Blumenauer that the KBR contract that governed the Guardsmen’s work in restoring Iraqi oil supplies, said to be worth up to $7 billion, was the only Army arrangement that included an indemnification clause for work performed since 2001.

McHugh indicated that an assertion of indemnity by KBR would not necessarily lead to federal liability for the Guardsmen’s chemical exposure: “If a contractor were to assert a claim under such a provision, the Army would carefully scrutinize whether the events underlying the claim fall within the specified scope of the hazardous risk.”

That explanation has not satisfied Blumenauer, who is vowing to push for the declassification of the KBR contract. McHugh’s assurances about indemnification were fairly narrow, Blumenauer explained, given that “there are other authorities issuing contracts than the U.S. Army” for work in Iraq and Afghanistan.

Asked to comment on potential indemnification language included in contracts with other branches of the military, a Pentagon spokeswoman pointed to federal acquisition regulations that provide for the inclusion of such provisions with the approval of relevant officials and provided that the contracts in question define the nature of the “unusually hazardous or nuclear risks” facing the private-sector company.

KBR spokeswoman Heather Browne declined to comment on whether indemnification language was included in any of its other Pentagon contracts and whether the company would seek government assistance should it be found liable in the Oregon case.

Blumenauer said he plans to introduce a bill requiring congressional notification when any contractor is reimbursed by the military under indemnification provisions. Asked how quickly progress could come on any pending proposals related to the hexavalent chromium case, which senators publicly investigated in 2008 and 2009, the Oregon lawmaker acknowledged that “it may be a long shot.”

Still, he added, “there may be a vehicle going through [Congress] that we can attach something to. I’d rather get some action than a hearing where people can say, ‘We’ll come back to it next year.’”

The legal clash continues

Despite the unclear time frame for Washington action, further movement in the courts may come even more slowly. David Sugerman, a Portland attorney representing the Oregon Guardsmen, said a trial date has not yet been set and that he plans to take “a lot of depositions” of KBR officials.

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Original Huffington Post Article

A Pentagon deal to grant one of America’s largest military contractors immunity from harming soldiers and civilians in Iraq was a unique arrangement, according to Army Secretary John McHugh.

As previously reported in Huffington Post and the Oregonian, taxpayers may be on the hook to compensate more than 150 military veterans who claim that a Halliburton subsidiary knowingly exposed them to cancer-causing chemicals in Iraq.

As part of a lawsuit filed by 26 Oregon National Guard soldiers who claim that they suffered health problems through exposure to hexvalent chromium while patrolling a water treatment plant near Basra in Iraq, it was revealed that contractor Kellogg Brown Root demanded and received legal immunity in return for taking over the $7 billion project in 2003.

In the wake of the disclosure in early August, Rep. Earl Blumenauer (D-Ore.) demanded some answers about the deal, including whether other military contractors have been granted similar immunity deals.

On Tuesday, McHugh responded to Blumenauer, explaining that KBR has not asserted its claims under the contract’s indemnification clause. And he added that no other Army contract with KBR, which most recently was awarded a $2.8 billion deal from the Pentagon, contains such a deal.

McHugh added that “no other Army contracts awarded since 2001 to other companies for services provided in a contingency operation contain indemnification provisions.” McHugh explained that the Army considers the use of such provisions “only in extraordinary circumstances involving unusually hazardous risks.”

And McHugh explained that “no congressional notification was provided in connection” with the indemnification provision.

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Original Huffington Post Article

Original Article at Huffington Post

Veterans 1, KBR O

It is time once again to tune in to the latest epsiode, oops, I mean development, of the long running farce, oops, I mean legal case, involving KBR and Oregon National Guard soldiers.

Yeterday there was significant pro-veteran ruling in the Oregon KBR Qarmat Ali litigation.

I have previously written about this and open air burn pits KBR ran on dozens of U.S. bases in Iraq and Afghanistan in February, April and June.

In a 29-page ruling the federal district court in Oregon considered the motion by KBR and co-defendants Overseas Administration Services, Ltd. and Service Employees International, Inc. to dismiss the suit for lack of subject-matter jurisdiction and rejected it.

U.S. Magistate Judge Paul Papak wrote that on March 3, 2003 – before combat operations began in Iraq – the U.S. Army Corps of Engineers entered into a “Restore Iraqi Oil” (RIO) contract) with KBR. Under it, KBR and its subsidiaries agreed to provide services to the U.S. military in connection with efforts to restore the infrastructure underlying the Iraqi oil industry. Also under the RIO contract, the U.S. Army Corps of Engineers issued various “task orders” for KBR to perform. Combat operations in Iraq began on March 19, 2003. On March 20, 2003, the Corps of Engineers issued “Task Order 3,” which governed the services to be provided by KBR and its subsidiaries at Qarmat Ali and other facilities. Under Task Order 3, the U.S. military would declare a given worksite to be “benign” before KBR would begin operations there.

A lot depends on what you mean by “benign.” In a footnote the judge wrote:

The parties dispute the meaning of the term “benign” for purposes of Task Order 3. According to the deposition testimony of Robert Crear (retired Brigadier General of the U.S. Army Corps of Engineers) and of Gordon Sumner (retired U.S. Army Corps of Engineers Contracting Officer and regional director of contracting), “benign” referred to freedom from combatant activity and from nuclear or chemical weapons, and did not foreclose the possibility of environmental hazards, including hazardous (but not weaponized) chemicals. Support for this interpretation can be found in the provisions of Task Order 3, which suggest that pronouncement of a site as “benign” did not, for example, foreclose the need for environmental assessment. Nevertheless, defendants take the position that a “benign” designation necessarily meant freedom from known hazards, including environmental hazards, and support for defendants’ position may also be found in the language of Task Order 3, which indicates that a facility must be cleared of environmental and industrial hazards before it may be pronounced “benign.” Because I do not find this issue to be material to the analyses I am called upon to undertake in connection with the political question doctrine, the government contractor defense, or the combatant activities exception, the parties’ dispute over the definition of “benign” need not be resolved at this stage of these proceedings.

In the underlying facts portion of his ruling the judge wrote:

Task Order 3 provides that KBR was responsible for providing the Corps of Engineers with an environmental assessment of any facility in which it undertook operations. The obligation to provide such assessments included the obligation to report and evaluate any environmental hazards. According to Sumner’s and Gen. Crear’s deposition testimony, KBR was not merely permitted but required under Task Order 3 and the RIO contract to take all necessary precautions to safeguard personnel who might potentially be exposed to environmental hazards at worksites, including the wearing of protective gear and/or the closing down of operations at any unsafe site.

In his analysis the judge noted that the defendants argue that this court lacks subject-matter jurisdiction by operation of the political question doctrine, by operation of the so-called “government contractor defense,” and by operation of the combat activities exception to the Federal Tort Claims Act. For background on this see my January post.

The parties dispute the meaning of the term “benign” for purposes of Task Order 3. According to the deposition testimony of Robert Crear (retired Brigadier General of the U.S. Army Corps of Engineers) and of Gordon Sumner (retired U.S. Army Corps of Engineers Contracting Officer and regional director of contracting), “benign” referred to freedom from combatant activity and from nuclear or chemical weapons, and did not foreclose the possibility of environmental hazards, including hazardous (but not weaponized) chemicals. Support for this interpretation can be found in the provisions of Task Order 3, which suggest that pronouncement of a site as “benign” did not, for example, foreclose the need for environmental assessment. Nevertheless, defendants take the position that a “benign” designation necessarily meant freedom from known hazards, including environmental hazards, and support for defendants’ position may also be found in the language of Task Order 3, which indicates that a facility must be cleared of environmental and industrial hazards before it may be pronounced “benign.” Because I do not find this issue to be material to the analyses I am called upon to undertake in connection with the political question doctrine, the government contractor defense, or the combatant activities exception, the parties’ dispute over the definition of “benign” need not be resolved at this stage of these proceedings.

In the underlying facts portion of his ruling the judge wrote:

Task Order 3 provides that KBR was responsible for providing the Corps of Engineers with an environmental assessment of any facility in which it undertook operations. The obligation to provide such assessments included the obligation to report and evaluate any environmental hazards. According to Sumner’s and Gen. Crear’s deposition testimony, KBR was not merely permitted but required under Task Order 3 and the RIO contract to take all necessary precautions to safeguard personnel who might potentially be exposed to environmental hazards at worksites, including the wearing of protective gear and/or the closing down of operations at any unsafe site.

In his analysis the judge noted that the defendants argue that this court lacks subject-matter jurisdiction by operation of the political question doctrine, by operation of the so-called “government contractor defense,” and by operation of the combat activities exception to the Federal Tort Claims Act. For background on this see my January post.

The judge proceeded to detail other cases where district courts have found the political question doctrine inapplicable to tort actions brought against government contractors in the military context.

In regard to KBR’s claims that various legal tests argue in favor of applying the political question doctrine he wrote that he found their arguments unpersuasive. He wrote, “the matter fundamentally at issue here is defendants’ performance of its contractual obligations to the government and to the plaintiffs rather than the advisability of any governmental policy-related decision.”

But the guts of the decision, which is undoubtedly giving all PMC legal counsels’ nighmares, is this:

Defendants here assert that their “provision of engineering and logistical support services at Qarmat Ali” took place pursuant to the specifications of a contract with the government, and that they did not exceed their authority under those specifications. On this basis, defendants argue that they were merely “executing the will of the United States” and are entitled to the benefits of derivative sovereign immunity. The evidentiary record belies both of defendants’ assertions.
The rationale underlying the government contractor defense is easy to understand. Where the government hires a contractor to perform a given task, and specifies the manner in which the task is to be performed, and the contractor is later haled into court to answer for a harm that was caused by the contractor’s compliance with the government’s specifications, the contractor is entitled to the same immunity the government would enjoy, because the contractor is, under those circumstances, effectively acting as an organ of government, without independent discretion. Where, however, the contractor is hired to perform the same task, but is allowed to exercise, discretion in determining how the task should be accomplished, if the manner of performing the task ultimately causes actionable harm to a third party the contractor is not entitled to derivative sovereign immunity, because the harm can be traced, not to the government’s actions or decisions, but to the contractor’s independent decision to perform the task in an unsafe manner. Similarly, where the contractor is hired to perform the task according to precise specifications but fails to comply with those specifications, and the contractor’s deviation from the government specifications actionably harms a third party, the contractor is not entitled to immunity because, again, the harm was not caused by the government’s insistence on a specified manner of performance but rather by the contractor’s failure to act in accordance with the government’s directives.

Assuming without deciding that the Ninth Circuit would apply the government contractor defense to the provision of the kinds of services KBR contracted to provide in Iraq under RIO and Task Order 3 [...] – analysis of the RIO contract and of Task Order 3 fails to establish that the defendants’ actions alleged to have caused plaintiffs’ injuries were taken in direct compliance with any “reasonably precise” government directive. Quite to the contrary, defendants were contractually obliged to perform an environmental assessment of Qarmat Ali and to report any environmental hazards to the Army Corps of Engineers. Defendants were under no contractual obligation to put their employees or
third parties providing security in connection with defendants’ operations into situations involving the risk of environmental harm, to refrain from requiring employees or third parties to use appropriate protective gear and clothing when placed into such situations, or to withhold material information regarding such risk from persons placed into such situations.

Moreover, assuming arguendo that the government’s specifications regarding defendants’ obligations in connection with operations to be performed in an environmentally contaminated worksite were sufficiently precise to trigger the defense, plaintiffs have offered evidence tending to establish that the defendants violated those contractual duties, by failing to report the contamination at Qarmat Ali and by permitting the Oregon National Guard to perform duties at the site without appropriate protective gear.

Because defendants did not conduct operations at Qarmat Ali in accordance with precise government specifications and without independent discretion as to the manner in which the operations were to be performed, defendants are not entitled to the government contractor defense. See Hanford Nuclear, 534 F.3d at 1000. Defendants’ motion to dismiss is therefore denied to the extent premised on the government contractor defense.

In other words, the “we were just following orders” defense is looking even lamer than ever.

Original Article at Huffington Post

Please visit Oregonlive.com for full story

Published: Monday, August 30, 2010,
Julie Sullivan, The Oregonian

A federal judge ruled Monday that a lawsuit by Oregon Army National Guard veterans against war contractor Kellogg Brown & Root can proceed.

The decision makes the federal court in Portland the apex of a legal battle that stretches from Oregon to West Virginia, and from Indiana to Texas, over who is responsible for exposing American soldiers to a known cancer-causing chemical early in the Iraq war.

Already, the Oregon case has opened a window into the government’s unprecedented use of private companies in Iraq and the lucrative contracts that have remained secret until now.

Beginning in May 2003, hundreds of U.S. and British troops guarded KBR workers as they worked to restore Iraqi oil flows. At a decrepit Qarmat Ali water treatment plant, piles of a toxic orange-yellow powder stained the soil, water and walls.

The powder was a rust-fighter, sodium dichromate, which contains hexavalent chromium. Exposure to 40 micrograms of hexavalent chromium per cubic meter — about the size of a grain of salt in about a cubic yard — has shown a high increase in lung, stomach, brain, renal, bladder and bone cancers

In 2009, 26 Oregon Guard veterans sued KBR, claiming its managers downplayed or dismissed the presence of the chemical.

U.S. District Magistrate Paul Papak denied KBR’s second motion to dismiss the suit. His fact-finding refutes three of KBR’s long-time assertions. He found:

KBR brought additional sodium dichromate to Qarmat Ali in June 2003, stored and worked with it. KBR has consistently claimed the chemical was left by Iraqis after Saddam Hussein’s overthrow.

KBR knew of the sodium dichromate before most of the soldiers ever arrived, warning a subcontractor — but not the U.S. military or soldiers — that areas of the water plant were contaminated. The Oregon Guard weren’t notified of the chemical until August 2003, two months after they had guarded employees at the plant.

KBR was contractually obligated to provide an environmental assessment at Qarmat Ali and report hazards. KBR says the Army was responsible for the assessment.

David Sugerman, the Portland consumer attorney representing the veterans, said, “We are very pleased.”

KBR spokeswoman Heather Browne said in an email, “We are disappointed with the ruling and we are in the process of reviewing the decision.”

Troops from four states and Britain claim they suffer health problems as a result of the exposure. At least two soldiers who were exposed to the chemical have died of cancer.

Earlier this summer, KBR attorneys moved to dismiss the Oregon case for lack of jurisdiction. They argued that the contractor was “merely executing the will of the United State.” They also claimed that KBR was acting as a combatant during wartime, and should receive the same legal protection the military.

But in a 29-page opinion, Judge Papak found that KBR’s work restoring Iraqi oil was a foreign policy goal rather than a combatant activity.

“The defendents operations were more akin to restoring the battlefield to productive use after the battle has ended than to aiding warriors to swing the sword,” Papak wrote, citing another case law in denying KBR’s claim.

Details of the 2003 Restore Iraqi Oil contract have already raised congressional concern. Earl Blumenauer, D-Ore., has written the Secretary of the Army demanding details of the agreement because American taxpayers — and not KBR — would pay if the war contractor is found to have harmed Oregon veterans.

There have been several important developments in the fight to uncover KBR’s conduct in knowingly exposing the men at KBR’s Qarmat Ali project to dangerous toxins.  But first, it is with great sadness that all of us express our condolences to Sabrina and the McManaway family on Mark’s passing.  The Indiana/Texas lawsuit was brought in Mark’s name, and we will continue the fight in his name and for his family and the men with whom he served.

Recent developments in a number of areas:

Discovering the truth: KBR has made several bids to block discovery into their actions at Qarmat Ali.  KBR has filed yet more motions to dismiss the suits, and as part of those motions, they have asked that all discovery be blocked while the judge considers the motions.  However, at a hearing on July 9, 2010, United States District Judge Vanessa Gilmore in Houston federal court rejected KBR’s demand that all discovery be blocked and its managers not be required to testify under oath about what they knew about the hazards to the men at Qarmat Ali, when they knew it, and what KBR management should have been doing from the beginning of KBR’s project to protect our soldiers, British troops, and the men actually on the ground at Qarmat Ali doing the work.  Even after that ruling, KBR has refused to comply with its discovery obligations, so another hearing with the Court may be necessary.

Oregon Hearing on KBR’s Immunity Claims: At a hearing on July 12, 2010 before Judge Paul Papak in federal court in Oregon, the Court heard KBR’s demand for immunity for any misconduct at Qarmat Ali. KBR asserted that it was engaged in “combatant activities” during the routine work of site inspection and restoration of Iraqi Oil over many months, as well as entitled to “political question doctrine” immunity as an agent of the United States Army.  Judge Papak was able to hear about the June testimony of retired Brigadier General Robert Crear, the Corp of Engineers officer in overall command of Task Force Restore Iraq Oil (RIO), who confirmed that Project RIO was neither a combat nor combat support tasking.  More significantly, recently uncovered internal KBR documents confirmed that KBR was told at the outset of the need to advise the Army immediately of hazards at any of the work sites, including Qarmat Ali, and Gen. Crear confirmed that KBR was entrusted with the direct responsibility for both identifying hazards at Qarmat Ali, including sodium dichromate, and ensuring that all the men at the site were properly notified and protected by KBR at KBR’s project.  Judge Papak has in the past ruled swiftly on motions, and we are hopeful we will receive a decision on these motions within the next 30 to 60 days.

KBR’s “indemnity” demands for a bail out from the taxpayers: Recent testimony from KBR lawyer Christopher Heinrich has revealed that after securing the “no bid” contract KBR in March 2003, KBR demanded “full indemnification”, or taxpayer bailout, of any responsibility of KBR for any misconduct causing death or injury to our soldiers, Coalition forces, and civilian workers at KBR’s projects.  KBR made this demand after entering into the “no bid” contract, and apparently refused to honor its obligations to the government and the men and women serving in Iraq unless the government acceded to their demands.  This revelation has led to calls in Congress for answers about whether KBR actually made such a demand of the Pentagon, whether it was added-on after the fact to the no-bid contract, and whether anyone on behalf of the United States has agreed with KBR’s demand for reimbursement of any and all costs, including attorneys’ fees in justifying its conduct at Qarmat Ali.

VA Qarmat Ali initiative: The United States Department of Veterans’ Affairs has announced a new initiative at clinics in Oregon, Indiana, West Virginia, and other facilities providing care to impacted soldiers to more appropriately screen, document, and address the health effects on our soldiers.

West Virginia: The Court in the West Virginia suit dismissed the case there on the grounds that KBR does not do enough business in that state to exercise jurisdiction there.  This essentially is the same ruling that the Indiana judge made.  While we disagree with this ruling, we anticipate joining the West Virginia soldiers to the Houston suit shortly.

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Published: Thursday, July 22, 2010, 8:23 PM     Updated: Friday, July 23, 2010, 7:52 AM

Julie Sullivan, The Oregonian

The Department of Veterans Affairs is launching a Qarmat Ali registry to aggressively track and treat veterans exposed to a cancer-causing chemical in Iraq in 2003.

The national surveillance program will register hundreds of National Guard members who served at the Qarmat Ali water- treatment plant, looking for health problems associated with hexavalent chromium exposure, such as asthma and lung cancer.

The monitoring is a victory for nearly 300 Oregon Army National Guard members and for Sen. Ron Wyden, D-Ore. Wyden proposed such a registry March 22 after veterans with breathing and skin problems told him in an emotional meeting in Portland that VA staff did not understand the hazards of their assignment.

Ross William Hamilton/The Oregonian Senator Ron Wyden reacts as former Oregon Guard Sgt. Larry Roberta (cq) begins to cough at a February press conference. Wyden said he was so distressed by the veterans' concerns he asked the VA in a March letter to create a registry.

“This is a concrete step forward,” Wyden said. “But it is only a step.” He wants the VA to go further and presume a service connection that will increase access and benefits.

The program is more a medical monitoring program than a confirmation of health problems. The VA does not presume a veteran who served at Qarmat Ali is ill — nor that any specific diseases are linked to serving there.

But the Qarmat Ali Medical Surveillance program will standardize medical exams nationwide, focusing doctors’ attention on lung cancer and other related problems and help direct treatment. Among the steps: ear, nose, throat, lung and skin exams as well as regular chest X-rays, said Dr. Victoria Cassano, director of radiation and physical exposure for the VA’s Office of Public Health and Environmental Hazards.

Cassano said the registry connects veterans to a local coordinator and creates a long-term study group. She outlined the details to congressional staff and others Thursday, though the VA has not formally announced the program.

Oregon Democrats Reps. Earl Blumenauer and Kurt Schrader, and U.S. Sen. Jeff Merkley, all issued statements praising the new registry.

By Brian Bowling
PITTSBURGH TRIBUNE-REVIEW
Wednesday, July 21, 2010

Despite warnings that a spate of nosebleeds among guards was caused by hexavalent chromium, engineering firm Kellogg Brown and Root (KBR) allegedly covered up the “extreme ­danger”.

The firm blamed the conditions on dry desert air or a sand allergy, a court heard.

When a civilian medic raised concerns, he was flown out of the country, it was claimed.

KBR was then owned by Halliburton, the American conglomerate tasked with plugging the Deep Horizon oil well before the fatal explosion last month, which killed 11 workers.

Former RAF Sgt Andrew Tosh and six comrades from 26 Squadron had been deployed to the Qarmat water plant to guard civilian contractors.

The father-of-two is suffering from skin and chest problems he says were caused by hexavalent chromium.

Iraqi workers fleeing the allied invasion are thought to have deliberately scattered the substance, used as an anti-corrosive in pipes, around the site .

Even limited exposure can provoke lung, stomach, brain, prostate, bladder and bone cancers, which can take up to 20 years to develop . The RAF men have joined nearly 100 Americans in a class action law suit against KBR for gross negligence and legal ­malice.

 “If I knew then what I know now I would not have gone on the site and would not have taken my men in there,” said Mr Tosh, 44, from his home in Lincoln last night.

“I believe KBR management misled the militaries of the US and the UK.

“Too many of the men who served at Qarmat Ali were sick whilst there or became ill later. This cannot be coincidental.”

Texas-based KBR made ­billions of dollars through US government “no-bid contracts” in Iraq after the 2003 invasion.

It received an extra bonus for the speedy restoration of Qarmat Ali plant which supplied water to oil fields near Basra.

Two US guards at the plant have died of cancers “attributable to their exposures in whole or in part to their exposures at Qarmat Ali”, alleged the lawsuit filed in West Virginia this week.

Many more have contracted illnesses ranging from persistent rashes and nose bleeds to tumours, it added.

Court papers say KBR’s south Iraq health safety environment officer was told about the contamination on site in May 2003 but nothing was done to protect workers or clean up the site .

By August, 60 percent of ­people at Qarmat Ali showed symptoms of acute poisoning, including continuous bloody noses (a symptom of hexavalent chromium poisoning known as “chrome nose”) spitting up blood, coughing, irritation of the nose, eyes, throat and lungs, and shortness of breath.

Ed Blacke, an American civilian medic based at Qarmat Ali, discovered bags of sodium dichromate, which contains hexavalent chromium, had been opened and their contents spread all over the plant.

He was flown out of Iraq after raising his concerns at a staff meeting.

KBR denied it was responsible for the presence of the toxic chemicals at the site and said it would “vigorously” defend all the cases.

A Ministry of Defence spokesman said: “An Army Environmental Monitoring team conducted a survey in ­September 2003 and found that there was a limited risk that ­personnel had been exposed to some levels of sodium dichromate earlier in their duties.

“The personnel affected were ­identified and the fact of possible exposure was recorded in their medical records.”

UK troops join former US Guards in ‘toxic’ exposure lawsuit against KBR

By Rajini Vaidyanathan
Reporter, BBC Radio 4’s PM

Sodium dichromate has been linked a range of illnesses

Seven former British soldiers are suing an American defence firm, accusing it of exposing them to dangerous levels of toxic chemicals in Iraq.

The men were providing security at a water plant near Basra where sodium dichromate was discovered.

They claim that its operator, Kellog Brown and Root (KBR), failed to protect them from the substance.

The men join 98 US soldiers suing KBR. It denies the allegations, saying necessary precautions were taken.

“If I’d have known what I now know, I would not have gone on that site and I would not have made my men operate on that site,” says Andy Tosh.

The former regiment sergeant served in several combat zones but it is his time in Iraq in 2003 which has left him worried for his future.

“I’m used to risking my life or defending the right cause if you want to call it that. But again that’s against things you would expect.

“You join the military to do a job, not to get exposed to a toxic chemical through a contractor,” he adds.

The lawsuit he and his former colleagues have joined relates to the time they spent providing security at the Qarmat Ali water plant, which was pumping water to nearby oil wells.

‘Rashes and nosebleeds’

The plant was run by the defence contractor KBR, a company which until 2007 was part of the Halliburton oil corporation.

When the men began working on the site in May 2003 they noticed a reddish orange powder, some of it in bags, some of it in the drains and in the sand.

Former Sergeant Andy Tosh developed nosebleeds and other illnesses

Initially they thought little of it, but Sgt Tosh says he became concerned when he and some of his team developed rashes, nosebleeds, and breathing problems after coming into contact with the substance.

“In August I had a severe rash on my forearms and hands. I’ve operated all over the world, from South America to the Arctic, I’ve never had any rash like that before,” he says.

“I was that concerned that I did go and see the station medical officer in Basra.”

A few months after the men arrived, notices started to appear around the plant, explaining that the coloured powder was in fact a highly toxic substance – sodium dichromate, the same chemical which was brought to attention in the film Erin Brockovich.

“At the time the warning signs went out around a pump room where this sodium dichromate had been stored in bags previously, and then they said that the orange powder…was actually sodium dichromate.

“Later on, they moved us from where we were operating, but not very far, only 100 metres away from the site.

“Once the warning signs went up, we never saw any US national guards again, we were told that there was nothing to worry about, it’s all fine.”

Sgt Tosh says he believes the US guards left in fear for their safety.

During the time he remained on the site he says he saw KBR workers there, many of them wearing protective clothing.

Chemical exposure?

Sodium dichromate is a highly carcinogenic substance, used as an anti-corrosive.

Medical experts say it can cause nosebleeds, damage to the septum, breathing problems and even in some cases lung cancer.

In the 36-page lawsuit, the soliders claim that KBR “disregarded and downplayed” the dangers of being exposed to the chemical.

In response, KBR says the sodium dichromate was left at Qarmat Ali by Iraqi workers under Saddam Hussein’s regime and that it took action to make the site safe.

It adds that it notified the US Army Corps of Engineers of the presence of the substance and its dangers.

A statement from KBR goes on to say: “Air sample tests performed by the US Army Center for Health Promotion Preventative Medicine and the British Military and KBR showed no dangerous levels of airborne chromium hexalvelant.”

The defence contractor further contends that no medical data support the claims that soldiers and KBR workers suffered from nosebleeds and respiratory problems caused by sodium dichromate.

This is something almost 100 soliders in the United States dispute.

Ninety-eight former members of the US military are already suing KBR, claiming they have contracted serious illnesses from their time at the plant.

“I have a laundry list of health problems,” explains Larry Roberta, who served with the Oregon National guard.

“I only have 60% lung capacity, I have very low testosterone, I have two types of inhalers, I can’t walk a block with passing over.

“To me there’s no doubt the cause is sodium dichromate. That was the turning point exactly, that was when my health went like a car over a cliff.”

Mr Roberta says the orange dust was everywhere at the plant, and he even ended up eating it when it landed on his food.

“It’s just a real horrible, disgusting taste. It’s a real heavy metal taste. It’s like if you were to run outside and lick the lampost.”

Side-effects

The issue of chemical exposure at the Qarmat Ali water plant has been the subject of a number of hearings in the US Senate.

Dr Herman Gibb, an expert on sodium dichromate who gave evidence to those hearings, says it can take years for the side-effects of the chemical to manifest.

And that is the concern among the British troops who have filed the lawsuit.

“We just want our day in court,” explains John Gledhill, from Retford in Nottinghamshire.

“I want to know we can get some medical screening because there have been numerous national guardsmen over in America who were at the water treatment plant at the same time as us who’ve got symptoms.

I’ve got no symptoms at the minute, but it’s a carcinogenic compound so we don’t know what the future holds.”

In a statement, the Ministry of Defence says it takes “very seriously” any suggestion that troops may have been exposed to levels of sodium dichromate in Iraq in 2003.

But it goes on: “This was examined at the time and there was no cause for alarm…the results of sampling showed that levels of sodium dichromate were significantly below UK government and US Army guidance levels and should not have had any effect on the patrolling guard force.

“Should any new evidence come to light, we will obviously consider it.”

The ex-servicemen on the lawsuit are also calling for an enquiry into the matter at Westminster.

“It’s a bit of a silent risk,” says Jim Garth. “It’s something we knew nothing about.”

“Granted it wasn’t a British installation, but we were tasked with guarding this installation by our superiors – and it looks like this could be a killer as well as the other things in a war zone that can kill you.”

_____________________

Original BBC Report

_____________________

Please visit Oregonlive.com for full story

By Julie Sullivan, The Oregonian
Originally Published Oregonlive.com on May 19, 2010, 9:17PM

Photo by: Torsten Kjellstrand, The Oregonian - David Sugerman represents 21 Oregon Army National Guard soldiers in their lawsuit against KBR.

Oregon Army National Guard veterans suing the largest war contractor in Iraq today in federal court in Portland acknowledge they’re waging an improbable fight.

In February, the war contractor squashed a similar lawsuit by Indiana Guard who also claimed they were knowingly exposed to a cancer-causing chemical in Iraq in 2003.

Last June, the war contractor even knocked out a suit by 10 of its former employees — the people Oregon troops were guarding.

The 21 Oregon veterans suing Kellogg, Brown and Root include a postal clerk, a security guard and a soldier just back from a second tour to Iraq where he guarded KBR convoys. The men say they suffer breathing, stomach and other health problems from being exposed to hexavalent chromium at the Qarmat Ali water treatment plant.

They face a large and experienced defense team who’ve handled hundreds of personal injury claims filed against KBR since the invasion of Iraq over its burn pits, accidental electrocutions and alleged assaults.

Photo by Beth Nakamura, The Oregonian - Rocky Bixby is one of the veterans in the KBR lawsuit.

On the vets’ team: one tall Texan and a Portland trial lawyer in a solo firm.

Houston attorney Michael Patrick Doyle, who’s won millions suing corporations for negligence, is working with David Sugerman, who’s taken class-action suits and consumer cases. They took the case on contingency. After months of unpaid work, one soldier felt so guilty he gave Sugerman the only bill in his wallet: an Iraqi dinar.

Today, KBR’s attorneys will argue it’s not responsibile. They blame the Army Corps of Engineers, which was in charge at Qarmat Ali. KBR’s local attorneys Jeffrey Eden and Stephen Deatherage will ask Magistrate Judge Paul Papak to stop discovery. They want Papak to rule — yet again– on whether the case should go forward in his U.S. District courtroom.

The case pits the Oregon veterans against the very Army they served in. For instance, the Army won’t release some records to their attorneys — only KBR.

“It’s overwhelming to know we’re going up against a company that has a lot of power and that the military seems to want to keep on their side, to work with in the future,” said former soldier Rocky Bixby, 43, a public safety officer at Oregon Health & Science University.

“It’s like stepping onto a freeway. You don’t know if you’re going to get run over or even make it out of there.”

The Oregon case against KBR offers a portal into the unprecedented privatization of war.

Since 2001, the government has paid private companies at least $150 billion to do work the military once did, from folding laundry to driving fuel trucks. Civilians working for contractors now outnumber military in Iraq and Afghanistan.

Last month, the Special Inspector General for Iraq Reconstruction reported just how radical the shift is. During World War II, the ratio of contractors to military was 1-to-7. In Vietnam, 1-to-6. In Iraq and Afghanistan, 1-to-1 or fewer.

Court documents, government reports, Congressional testimony and reporting by the Center for Public Integrity and U.S. newspapers describe KBR’s ascent:

Three weeks before the March 2003 invasion of Iraq, the Corps of Engineers contracted with KBR to fight Iraqi oil fires, without the usual bidding process or notification to Congress.

KBR was well connected.

Ties to Lyndon Johnson had helped the vintage Texas road-building firm, Brown and Root erect dams, military installations and off-shore oil platforms before it was acquired by oil giant Halliburton in 1962.

After the Persian Gulf war, then-Secretary of Defense Dick Cheney ordered a study to turn military support operations such feeding and housing troops to a private company. Brown and Root did the study, and was then chosen to carry out its plan for $2 billion. Cheney went on to Halliburton from 1995 to 2000, when he became vice president.

KBR lost the bid for the logistics contract in 1997 but won it back in late 2001, a 10-year contract worth $23 billion. In November 2002, KBR was asked to plan how to restore oil production in Iraq. Five months later, it won the no-bid contract to carry out its own plan. Three weeks later, the U.S. invaded Iraq.

But details of the contract remained secret until the non-partisan Center for Public Integrity sued the government and a year later, got the paperwork. They found 10 tasks had been added onto KBR’s original oil restoration contract. One task had ballooned in cost from $24 million to nearly $900 million in just six months. KBR eventually billed the government 2.5 billion.

Within weeks of the invasion, contractors reached the decrepit Qarmat Ali plant near Basra in southern Iraq. The plant provided the critical water pressure needed to extract oil from nearby fields. KBR moved swiftly to repair it.

National Guard soldiers from four states were ordered to protect the contractors traveling to Iraq oil sites. From April to June 2003, teams of Oregon soldiers accompanied KBR employees to pipelines, oil fields and Qarmat Ali. Just weeks after the Indiana Guard replaced the Oregonians, a new KBR safety officer arrived at the plant and was immedately concerned about the fine orange powder piled several feet deep that blew constantly in the desert wind. The corrosion fighter contained hexavalent chromium, one of the most potent carcinogens. Most of the soldiers and staff had sinus problems and bloody noses. KBR managers at first dismissed complaints, then inspected the plant wearing protective suits. The military immediately pulled out. KBR closed the plant, and the contamination was eventually paved over.

Still, the exposure and the men’s health problems remained hidden until KBR’s own employees told Senate Democrats about the hexavalent chromium during contractor oversight hearings on waste and abuse in 2008. The Senators concluded “the Bush Administration failed to follow long-established regulations for awarding contracts, mismanaged the performance of contracts it did award, and allowed contractors and Iraqi government officials to engage in fraudulent and wasteful conduct.”

Soldiers from across the country, learning the extent of the danger, also testified before Congress and began filing suit.

The Senate Democrats also concluded that KBR “knowingly” exposed troops and its own employees to sodium dichromate/hexavalent chromium.”

KBR, which spun off from Halliburton in 2007, become synonymous for poor performance: serving spoiled food, using contaminated water and burning trash in pits. The company also outraged the public by hiring workers through two shell companies in the Cayman Islands to avoid federal Social Security and Medicare taxes.

KBR denies harming troops or employees in Iraq and said it is proud of its work there.

“Ethics and integrity are the foundation of our business. The company in no way tolerates or condones illegal or unethical behavior. When questions about our work have been raised, KBR has provided information requested of us and worked to resolve the issues. We remain committed to providing the Army with high-quality, cost effective service,” spokeswoman Heather Browne said in a statement Wednesday.

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