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By Mike Francis, The Oregonian The Oregonian

KBR asks federal judge to dismiss case brought by Oregon soldiers

Lawyers for defense contractor KBR Inc. asked a federal judge in Portland Friday to dismiss the suit brought by a group of Oregon National Guard soldiers who said the KBR knowingly exposed them to a carcinogenic compound while they served in Iraq in 2003.

U.S. District Judge Paul Papak heard the arguments for two hours Friday morning, then said he would rule on KBR’s request in the coming weeks.

Friday’s arguments, while delivered in calm and measured tones, included some stinging accusations. KBR’s lawyer said the soldiers’ primary medical expert is “a junk scientist who cannot be trusted.” And the soldiers’ lawyer said KBR committed “fraud” in its conduct at the Qarmat Ali water treatment plant and in its actions afterward.

While KBR is technically asking the judge to dismiss the entire case brought by 34 Oregon National Guard soldiers, KBR lawyer Geoffrey Harrison of the Houston law firm of Susman Godfrey acknowledged that he expects some subset of the group will survive the legal challenge and proceed toward trial.

That trial is currently scheduled for June 5, but that date appears to be “in severe jeopardy,” said Jeffrey Eden of Portland’s Schwabe, Williamson & Wyatt, also representing KBR. Judge Papak agreed that a delay is likely because of the need to work through a variety of legal challenges brought both sets of lawyers.

Lawyers for the soldiers said they worry that KBR’s filings could delay the case “for years.” Said soldiers’ lawyer David Sugerman of Portland, “we need to get this case to trial.”

The lawsuit’s roots lie in the spring and summer of 2003, when Oregon National Guard soldiers and other U.S. and British troops provided security for KBR contractors who were trying to restore a damaged water treatment plant that was used to help produce Iraqi oil.

Among the substances at the plant was a carcinogenic compound called sodium dichromate, used to prevent corrosion.

Some of the Oregon soldiers have shown symptoms, from nosebleeds to skin rashes, that their lawyers say was caused by exposure to the chemical. And they say their exposure to sodium dichromate increases their risk of developing cancer.

KBR argues that they haven’t proven that.

-Mike Francis

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By Mike Francis, The Oregonian

The federal judge hearing the case brought by 34 Oregon National Guard soldiers against military contractor KBR Inc., has ruled that an expert opinion produced by the soldiers can be used in the trial, currently scheduled for June.

But Magistrate Judge Paul Papak said the amended expert report produced by the soldiers’ lawyers was so late that the plaintiffs should absorb any new legal costs incurred by KBR as it responds to it.

The judge also acknowledged that the late report and the responses it will require may force a delay in the trial date.

The soldiers accuse KBR of negligence and fraud stemming from their exposure to a carcinogenic compound found at a water treatment plant in Iraq. The soldiers were assigned to provide security for KBR workers at the site in 2003.

In a separate matter, the body that governs Internet naming protocols, the ICANN Uniform Domain Name Dispute Resolution panel, rejected an argument by KBR that the web site kbrlitigation.com misuses the company’s trademark. Kbrlitigation.com is a site carrying content produced by the Houston law firm of Doyle, Raizner LLP, which represents the Oregon soldiers.

The panel’s full decision is available here:

National Arbitration Forum Decision on kbrlitigation.pdf

San Antonio

By Lindsay Wise | Houston Chronicle

The final convoy of U.S. troops in Iraq — soldiers from Fort Hood — drove over the border to Kuwait last week, whooping and cheering, as the United States declared an end to the war.

But remaining behind are thousands of civilian contractors — about half of them armed.

State Department officials have said they expect that 5,000 security contractors will be needed in Iraq next year to protect U.S. diplomats.

A “life support” team of an additional 4,500 contractors will cook, clean and provide transportation and other services.

Their continued presence in Iraq — as well as in Afghanistan, where there is almost one contractor for every service member — demonstrates how much the U.S. government has come to rely on private companies to provide “war services” abroad.

In Afghanistan, 105,000 U.S. troops are supported by about 101,000 civilian contractors.

Only 23,000 of those contractors are U.S. citizens. About 50,000 are Afghans, and 27,900 come from other countries.

The reality is that the United States no longer can conduct large or sustained military operations or respond to major disasters without heavy support from contractors, according to a report released in August by the congressionally chartered Commission on Wartime Contracting in Iraq and Afghanistan.

The report revealed that at least $31 billion — and possibly as much as $60 billion — has been lost to contract waste and fraud. It concluded that the government was relying too much on contractors and that major reforms were needed.

“The U.S. military can’t move, fight or sustain itself without contractor support today,” said Steven Schooner, a law professor at George Washington University who has studied contractor fatalities.

The dependence on contractors also means that the American public underestimates the human cost of war, Schooner said.

At least 2,871 contractors have been killed and more than 74,000 injured overseas since 2001, according to Labor Department data.

Pentagon reports show that 6,317 troops died during the same period.

Houston-based KBR, once the largest U.S. contractor in Iraq, declined to comment and refused to disclose the number of KBR employees killed and injured in the wars in Iraq and Afghanistan.

Four years ago, KBR told the Houston Chronicle that 97 KBR workers had died in Iraq.

The Labor Department data shows no deaths for KBR or Halliburton, KBR’s former parent company. But it does list 127 deaths and about 29,000 injuries of workers for Service Employees International Inc., a KBR subsidiary located in the Cayman Islands to avoid paying federal taxes.

The department’s statistics are based on the number of insurance claims filed with its Division of Longshore and Harbor Workers Compensation. Workers who do not seek compensation are not counted, so the data likely underreports the number of civilian contractors killed or injured.

“Most people seem to agree that the numbers are significantly low,” Schooner said. “Nobody knows how many deaths haven’t been reported to the Labor Department.”

Schooner questioned whether Americans would be as complacent about the wars in Iraq and Afghanistan if contractor deaths were added to the official casualty figures. Doing so would bring the death toll closer to 10,000.

“Historically, the more we believe in what we’re fighting for, the more willing we are to tolerate sacrifice, but what the data shows is that in the modern era after World War II, as troop fatalities rise, the public’s willingness to continue fighting abroad drops,” Schooner said.

More contractors than troops died in Iraq in the past couple of years, yet their deaths went largely unnoticed, Schooner said.

Read more: http://www.mysanantonio.com/news/local_news/article/Soldiers-gone-but-contractors-remain-in-Iraq-2426228.php#ixzz1ho61bRpM

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New defense bill requires military to tell Congress when granting immunity to contractors

By Mike Francis, The Oregonian The Oregonian

KBR Inc. enjoyed government-guaranteed immunity from claims that might be brought by anyone claiming the contractor’s actions in Iraq caused injury or death, according to a newly declassified 2003 military contract. 

Doug Beghtel / The OregonianRep. Earl Blumenauer has been a leading voice in the push to force the military to disclose cases when it grants immunity to contractors.

But under the terms of the $662 billion defense appropriations bill Congress sent to the president Thursday, the military will be required in the future to inform the House and Senate Armed Services Committees when it grants immunity in such cases. If such language had been in effect when the KBR contract was signed, it wouldn’t have remained classified for 8-1/2 years.

“By forcing the Pentagon to conduct business with contractors out in the open, we are restoring a sense of public accountability for companies whose operations may endanger our troops,” said Rep. Earl Blumenauer, D-Ore., who along with Rep. Kurt Schrader, D-Ore., and Sens. Ron Wyden, D-Ore., and Jeff Merkley, D-Ore., have called for greater transparency in such contracts.

Army lawyers on Wednesday released terms of the amended contract under which the Army hired KBR to perform work to restore Iraq’s oil production in the early years of the Iraq war. Instead of standard language that excludes government liability for cases of “willful misconduct and lack of good faith,” the amended contract contains no such exclusion. Instead it says the government shall shield KBR from liability for claims by third persons “for death, personal injury, or loss of, damage to, or loss of use of property.”

The contract had been classified, but was released to lawyers whose clients include Oregon National Guard soldiers suing KBR after being exposed to potentially dangerous levels of a carcinogen at Qarmat Ali.

“By shining a light on these secret agreements,” Wyden said in a statement, “we are making sure that there will be no repeats of what happened to National Guard troops from Oregon and other states at Qarmat Ali in Iraq or anywhere else that troops are sent to protect private contractors.”

-Mike Francis

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KBR, Oregon soldiers back in federal court over medical claims Friday

By Mike Francis, The Oregonian The Oregonian

Fredrick D. Joe / The Oregonian 2009 | Oregon National Guard veterans Larry Roberta, left and Scott Ashby testify in 2009 before an Oregon House committee about a bill that would provide payments to Oregon Guard troops who develop cancer from exposure to hexavalent chromium. At right is the sponsor of the bill, Rep. Chip Shields.

Lawyers for military contractor KBR Inc. will ask a federal judge in Portland Friday to rule against a group of 34 Oregon Guard soldiers who say the contractor knowingly exposed them to a carcinogenic compound in Iraq in 2003.

Attorneys of the Houston firm of Susman Godfrey will argue that the soldiers’ lawyers have failed to prove that the troops’ medical symptoms were caused by exposure to the compound.

The soldiers sued KBR after they provided security for the contractors working to repair a water treatment facility at Qarmat Ali in southern Iraq.

In Friday’s hearing, KBR’s lawyers will argue before Judge Paul Papak that the plaintiffs have failed to prove that their medical symptoms, which range from skin irritation to severe gastrointestinal and respiratory distress, were caused by exposure to sodium dichromate in 2003. They will also ask the judge to strike the testimony offered by a Texas doctor and professor who filed a “tardy” report on the soldiers’ symptoms.

Lawyers for the soldiers,who include Michael Doyle of the Houston firm of Doyle Raizner and Portland attorney David Sugerman, will argue that evidence shows KBR knew of the dangers at the site and failed to inform the soldiers in a timely way. They are asking the judge to let the lawsuit, which is scheduled for trial in June, proceed.

The soldiers’ lawyers said they don’t expect a ruling Friday.

The Oregon soldiers, along with others from Indiana, South Carolina and West Virginia, as well as Royal British airmen, accuse the company of withholding information about the dangers of sodium dichromate, a powdery compound that contains hexavalent chromium. The corrosion-fighting compound was found to have tainted the soil at Qarmat Ali and was blowing freely about the site. Many of the soldiers now are afflicted with symptoms that can be associated with exposure to hexavalent chromium.

KBR has denied that it withheld information from those who may have been exposed. And it says the soldiers’ lawyers have ignored the fact that more than 87 percent of the soldiers did not report any symptoms of exposure in 2003.

The soldiers’ lawyers contend that KBR itself prevented the clear discovery of whether the soldiers had ingested dangerous levels of the compound by delaying notification and testing for the wrong chemicals. In their filing for today’s hearing, KBR lawyers call the assertion “outrageous.”

A separate case against KBR is being brought by Indiana and West Virginia soldiers in Texas. That trial is scheduled for next September.

Original Article on Houston Press

Declassified KBR Contract Shows How It Gets a Free Pass For Willful Misconduct

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Mike Francis, The Oregonian

Even if most Oregonians weren’t paying attention, the war in Iraq touched the state in many ways. The eight-plus years of military occupation were marked by courage, tedium, good deeds, sacrifice and sorrow. The Oregon National Guard sent about 5,300 people to Iraq, with many of them deploying more than once. And 111 troops with strong ties to Oregon and Southwest Washington died in Iraq or as part of Operation Iraqi Freedom.

The legacy of the war was felt at various times in every part of the state, from the smallest towns to the biggest cities. And for those who came home changed by the war, the effects will continue to be felt for years.

The first Oregon casualty in Iraq occurred March 22, 2003, when Army Reservist Brandon Tobler of Portland was killed when his 18-ton cargo truck collided with another vehicle in a nighttime convoy heading north toward Baghdad.

One day later, a small detachment of soldiers including Sgt. Donald Walters, who grew up in Salem, and Private Jessica Lynch was ambushed in Baghdad. Walters was among those killed — fighting to the end, Lynch later testified — and others were captured and held prisoner for 22 days. The survivors were freed in a raid by Special Operations forces. Walters was awarded the Silver Star posthumously.

After the March 2003 invasion, a contingent of Oregon National Guard soldiers were assigned to protect KBR contractors rebuilding a water plant at Qarmat Ali. While there, they where exposed to a free-floating particles of a carcinogenic compound called sodium dichromate. Some were sickened. They sued KBR, arguing that the contractor knew it was exposing the soldiers to health risks. KBR denies it and the litigation continues to this day.

June 4, 2004 was one of the worst days in Oregon military history, as a chain of explosives planted on the edge of Baghdad’s Sadr City took the lives of First Lt. Erik McCrae, Spc. Justin Linden and Sgt. Justin Eyerly, along with two New Jersey soldiers. Back in Oregon, Gov. Ted Kulongoski pulled out of a trade mission to Japan so he could attend the funerals, as he did with almost every Oregonian killed in the wars.

On June 29, 2004, a squad of Oregon Guard from the 2nd Battalion, 162nd Infantry Regiment forced their way into an Iraqi Interior Ministry compound, where a group of immigrant detainees are being beaten and, apparently, tortured by Iraqis. The Oregonians disarmed the Iraqis and rendered aid to the detainees. But they were ordered to leave the compound by their own higher command, as their foray occurred on the first day of official Iraqi sovereignity. The incident became political, with elected officials praising the troops and the Chairman of the Joint Chiefs finally joining in.

Acting Oregon Guard Adjutant General Ray Byrne caused a stir when he told “60 Minutes” in October 2004 that he thought some Oregon troops have been forced to operate in inadequately armored vehicles. The complaint was echoed by elected officials in Washington, D.C., and Salem. In time, the unarmored Humvees were replaced by the fully armored variety.

In November and December 2004, Oregon soldiers from the 2nd Battalion, 162nd Infantry fought alongside other troops and Marines in what became known as “The Second Battle of Fallujah.” The military describes it later as “some of the heaviest urban combat” for Marines since 1968. Filmmaker and historian Gary Mortensen documents the Oregon troops’ involvement in a movie “This is War.” In January 2011, 30 members of the 2nd Platoon of Bravo Company were honored with the Presidential Unit Citation, an honor not awarded to an Oregon Guard unit since World War II.

The wars leave many severely wounded, surviving explosions and shootings that would have killed troops in earlier wars. Traumatic brain injury, often caused by explosions that rock military vehicles, becomes known as the signature injury of the wars. It is invisible and frequently hard to diagnose. Many other troops are forced to adjust to a postwar life with artificial limbs.

In June 2006, one soldier was killed in an ambush south of Baghdad and Pfc. Thomas Tucker of Madras and Pfc. Kristian Menchaca of Houston were captured. Later, troops found their mutilated bodies. An Army investigation faulted the command that sent them alone in one vehicle to guard a bridge for 36 hours.

Then-Sen. Gordon Smith became the first leading Republican to speak out against the war in Iraq, declaring in a floor speech in December 2006, “I, for one, am at the end of my rope when it comes to supporting a policy that has our soldiers patrolling the same streets in the same way being blown up by the same bombs day after day. That is absurd. But, we have no business being a policeman in someone else’s civil war.” By so saying, Smith joined the criticisms of such Democrats as Gov. Kulongoski, who said in October 2006 that the Iraq war was “out of control” and “I don’t think this is good for America.”

The Tigard-based 41st Brigade was sent to Iraq for a year in 2009-2010. At 2,500 troops, it was Oregon’s largest deployment since World War II. The troops spent the year running convoys and guarding military facilities.

Oregon’s most painful inheritance of the war in Iraq may be its aftereffects, many of which are hidden from public view. A rash of divorces, cases of substance abuse, employment problems, financial difficulties, emotional damage and suicide forced the military to grapple with a hard-to-understand toll from the war. The Oregon National Guard formed a reintegration team that now works around the state in an effort to anticipate and prevent the most serious problems. But it can’t catch everything.

By: Paul J. Nyden

CHARLESTON, W.Va. — On Monday, U.S. Sen. Jay Rockefeller asked the U.S. Department of Defense to make sure 122 members of the West Virginia National Guard — as well as Guard members from other states including Oregon and Indiana — receive health care after being exposed to sodium dichromate, a cancer-causing chemical, while on duty at the Qarmat Ali water treatment plant in southeastern Iraq.

West Virginia National Guard members serving in Iraq back in 2003, Rockefeller said, were not notified of their exposure to sodium dichromate until early 2009.

Last month, the DOD’s Inspector General released a highly critical report, entitled, “Exposure to Sodium Dichromate of Qarmat Ali Iraq in 2003.”

The report criticizes failures by the DOD and by Kellogg Brown and Root, a major contractor hired by the U.S. military to work in Iraq and other countries.

About 1,000 U.S. Army soldiers and civilian employees were exposed to the chemical at the Qarmat Ali plant.

“DOD military, civilian and contractor personnel did not effectively address environmental hazards found prior to beginning work to restore to service the water treatment plant at Qarmat Ali, Iraq, in 2003,” the IG report states.

“The delay occurred because KBR did not fully comply with occupational safety and health standards required by the contract, and Task Force Restore Iraqi Oil [TFRIO] failed to enforce contractor compliance.”

The DOD ‘s response to initial reports in 2003 about the cancer-causing chemical “lacked urgency and was incomplete.”

The IG report adds that “DOD military, civilian and contractor personnel did not effectively address environmental hazards found prior to beginning work to restore to service the water treatment plant at Qarmat Ali.

“As a result, the government was made vulnerable to potential health care liabilities for individuals exposed to contamination.”

Seven senators — including Rockefeller and the late Sen. Robert C. Byrd, D-W.Va. — requested the Inspector General to investigate what happened at the water treatment plant in an Aug. 11, 2009 letter they sent to Inspector General Gordon S. Heddell.

The Qarmat Ali water treatment plant was built in the 1970s by the Union of Soviet Socialist Republics, the IG’s report notes.

Water processed in the plant was routinely distributed to 11 “cluster pumping stations” and also pumped underground to create pressure to drive oil reserves to the surface in Iraq.

Sodium dichromate was used to inhibit corrosion and extend the lives of those pipes, pumps and other water-distribution equipment.

Rockefeller said the new report “proves that the DOD’s and KBR’s actions prior to and after finding out about the presence of sodium dichromate were absolutely unacceptable — they can and must do better.

“This tragedy is yet another example of why we need to pass my bill to give the National Guard a seat on the Joint Chiefs of Staff,” Rockefeller said.

Dick Cheney, who was vice president under George W. Bush between 2001 and 2009, was president of Halliburton between 1995 and 2000. KBR, a Halliburton subsidiary, has received tens of millions of dollars in federal government contracts over many years, including years when Cheney was vice president.

“For those West Virginians who were affected by these chemicals, my office will work with anyone who was affected to get the treatment they need,” said Sen. Joe Manchin, D-W.Va. “For those West Virginians who were affected by these chemicals, my office will work with anyone who was affected to get the treatment they need.”

Rockefeller urged National Guard members who may have been exposed to the cancerous chemical to add their names to the Veterans Administration’s registry. The VA will then contact them about any new developments. The VA may be reached, toll free, at 800-749-8387 .

by Ry Rivard

CHARLESTON, W.Va. – A recent report faults a national defense contractor and U.S. military officials for failing to comply with and enforce workplace safety standards as Americans – including 122 members of the West Virginia National Guard – were exposed to a cancer-causing chemical in Iraq.

The report concludes a two-year investigation by the Department of Defense’s Office of the Inspector General. About 1,000 U.S. Army soldiers and U.S. Army civilian employees were exposed to sodium dichromate at the Qarmat Ali water treatment plant in southeastern Iraq, near Basra.

The chemical is an orange powder and a known carcinogen.

The report is the second on the incident. The first report was released last year and focused on government efforts to identify, monitor and care for those who were exposed – an effort that took several years.

The second part, released late last month, details how the exposure happened in the first place.

As the invasion of Iraq began in March 2003, the U.S. Army Corps of Engineers formed Task Force Restore Iraqi Oil. The task force partnered with defense contractor Kellogg, Brown & Root, known as KBR, to restore Iraq’s oil industry.

One of the hundreds of facilities that needed restored was the Qarmat Ali water treatment plant. Water from the plant was injected into the ground to drive oil to the surface.

Unbeknownst to U.S. officials, Iraqis who operated the facility before the war began apparently treated the pipes with sodium dichromate to prevent them from corroding.

Russell Powell, a Moundsville native who was deployed with the West Virginia National Guard as a medic, described the scene when soldiers and contractors first arrived weeks after the invasion. They found “a coating of orange colored dust throughout the facility,” Powell said.

“At that time no one knew or made any concerns of what the powder was,” Powell told a Senate committee in 2009.

At times, the dust was so thick there were “at least two inches” on his boots. Desert dust storms often came through, blowing the dust into the air.

“At no time were we offered any kind of protective clothing, masks, or respirators to protect us from the elements,” he testified. “During these storms or shortly thereafter soldiers in the company, KBR workers and myself would have severe nose bleeds, coughing up blood, a hard time breathing, nausea, and/or a burning sensation of the lungs and throat.”

The report doesn’t make mention of such vivid imagery but found that KBR didn’t rush to find out what the dust was. Nor did the military enforce workplace safety standards KBR had agreed to keep.

The response from KBR and the government was “delayed,” the inspector general’s report concluded.

The U.S. Department of Defense’s own response “lacked urgency and was incomplete.”

For instance, officials didn’t know what the dust was for months even after KBR had reason to suspect it was sodium dichromate.

U.S. troops began escorting Defense Department officials and KBR contractors from Kuwait to Qarmat Ali in April 2003. Members of the West Virginia, Oregon, South Carolina and Indiana National Guards provided escort at different times. From late April to sometime around the beginning of August, about 122 members of West Virginia National Guard’s 1092nd Engineer Battalion were part of the escort.

The report found that as they arrived in Iraq to help restore the oil industry, both KBR and the Army Corps’ oil task force focused on military threats – not threats posed by exposure to environmental hazards and industrial sites.