Oregon Guard suit against KBR goes forward on hexavalent chromium exposure
Published: Monday, August 30, 2010,
Julie Sullivan, The Oregonian
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.
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