Soldiers’ Toxic Chemical Cases Raise Private Contractors’ Liability Issues

Larry Roberta’s every breath is a painful reminder of his time in Iraq. He can’t walk a block without gasping for air. His chest hurts, his migraines sometimes persist for days and he needs pills to help him sleep.

James Gentry came home with rashes, ear troubles and a shortness of breath. Later, things got much worse: He developed lung cancer, which spread to his spine, ribs and one of his thighs; he must often use a cane, and no longer rides his beloved Harley.

David Moore’s postwar life turned into a harrowing medical mystery: nosebleeds and labored breathing that made it impossible to work, much less speak. His desperate search for answers ended last year when he died of lung disease at age 42.

What these three men — one sick, one dying, one dead — had in common is they were National Guard soldiers on the same stretch of wind-swept desert in Iraq during the early months of the war in 2003.

These soldiers and hundreds of other Guard members from Indiana, Oregon and West Virginia were protecting workers hired by a subsidiary of the giant contractor, KBR Inc., to rebuild an Iraqi water treatment plant. The area, as it turned out, was contaminated with hexavalent chromium, a potent, sometimes deadly chemical linked to cancer and other devastating diseases.

No one disputes that. But that’s where agreement ends.

Among the issues now rippling from the courthouse to Capitol Hill are whether the chemical made people sick, when KBR knew it was there and how the company responded. But the debate is more than about this one case; it has raised broader questions about private contractors and health risks in war zones.

Questions, says Sen. Evan Bayh, who plans to hold hearings on the issues, such as these:

“How should we treat exposure to potentially hazardous chemicals as a threat to our soldiers? How seriously should that threat be taken? What is the role of private contractors? What about the potential conflict between their profit motives and taking all steps necessary to protect our soldiers?

“This case,” says the Indiana Democrat, “has brought to light the need for systemic reform.”

For now, dozens of National Guard veterans have sued KBR and two subsidiaries, accusing them of minimizing and concealing the chemical’s dangers, then downplaying nosebleeds and breathing problems as nothing more than sand allergies or a reaction to desert air.

KBR denies any wrongdoing. In a statement, the company said it actually found the chemical at the Qarmat Ali plant, restricted access, cleaned it up and “did not knowingly harm troops.”

Ten civilians hired by a KBR subsidiary made similar claims in an arbitration resolved privately in June. (The workers’ contract prevented them from filing suit.)

This isn’t the first claim that toxins have harmed soldiers in Iraq and Afghanistan; there have been allegations involving lead, depleted uranium and sarin gas.

This also isn’t the first challenge to KBR, whose billions of dollars of war-related contracts have been the subject of congressional scrutiny and numerous legal claims.

Among them are lawsuits recently filed against KBR and Halliburton Co. — KBR’s parent company until 2007 — that assert open-air pits used to burn refuse in Iraq and Afghanistan caused respiratory illnesses, tumors and death. (KBR says it is reviewing the charges. Halliburton maintains it was improperly named and expects to be dismissed from the case.)

Earlier this year, several members of Congress asked Veterans Affairs Secretary Eric Shinseki to investigate potential burn pit hazards. He replied that his agency is conducting a health study of 30,000 Iraq and Afghanistan veterans and noted the VA “has learned important lessons from previous military conflicts” as it deals with environmental exposure questions.

Some veterans advocates say the military is more attuned to health risks than it was in Vietnam and the Gulf War, but still falls short.

“I’m a realist _–things are going to get burned, things are going to be blown up,” says Tom Tarantino, an Iraqi veteran and policy associate at the Iraq and Afghanistan Veterans of America. “But I think the DOD (Department of Defense) could do a better job at tracking what people are exposed to. If there’s a big pit outside your base, you need to know what’s going on and do tests … so if people start getting sick, they won’t spend years trying to figure out what’s wrong with them.”

This isn’t a natural fit, he concedes, since the Defense Department “is a war-fighting agency, not an environmental protection agency. But I think there’s a lack of information out there.”

This case stems from the chaotic start of the war in 2003 when a KBR subsidiary was hired to restart the plant, which had been looted of equipment, wiring, even metal roofing and siding. The Iraqis had used hexavalent chromium to prevent pipe corrosion at the plant, which produced industrial water used in oil production.

It’s the same chemical linked to poisonings in California in a case made famous in the movie “Erin Brockovich.”

Hexavalent chromium _–a toxic component of sodium dichromate –can cause severe liver and kidney damage and studies have linked it to leukemia as well as bone, stomach, brain and other cancers, according to an expert who provided a deposition for the civilian workers.

The chemical “is one of the most potent carcinogens know to man” and it can “enter every cell of the body and potentially produce widespread injury to every major organ in the body,” said Max Costa, chairman of New York University’s Department of Environmental Medicine.

KBR, however, says studies show only that industrial workers exposed to the chemical for more than two years have an increased risk of cancer — and in this case, soldiers were at the plant just days or months.

The company also notes air quality studies concluded the Indiana Guard soldiers were not exposed to high levels of hexavalent chromium. But Costa says those tests were done when the wind was not blowing.

Both soldiers and former workers say there were days when strong gusts kicked up ripped-open bags of the chemical, creating a yellow-orange haze that coated everything from their hair to their boots.

“I was spitting blood and I was not the only one doing that,” recalls Danny Langford, who worked for the KBR subsidiary. “The wind was blowing 30, 40 miles an hour. You could just hardly see where you were going. I pulled my shirt over my nose and there would be blood on it. I also saw the soldiers. They had blood splotches on their masks.”

Larry Roberta, a 44-year-old former Oregon National Guard member, remembers a strange metallic taste and dust everywhere. He sat on a bag of the chemical, unaware it was dangerous.

“This orange crud blew up in your face, your eyes and on our food,” he says. “I tried to wash my chicken patty off with my canteen. I started to get sick to my stomach right away.”

Roberta had coughing spells and agonizing chest pains, he says, that “went all the way through my back. Whenever I breathed, the pain got more sharp. … Every day I went there, I had something weird going on.”

Russell Kimberling, a former Indiana National Guard captain, had severe sinus troubles that forced his evacuation to Germany. After returning, he became alarmed one August day in 2003 while escorting some officials to the plant in the southern Iraqi city of Basra.

“I jumped out of the truck and I turned around and they (KBR staff) had full chemical gear on,” he says. “I looked at some of my soldiers and said, ‘This can’t be very good.”‘

“They could have told us to put chemical suits on,” Kimberling adds. “There are so many things that could have been done.”

Ed Blacke, hired as plant health, safety and environmental coordinator, says he became worried after workers started having breathing problems and a former colleague sent him an internal KBR memo outlining the chemical’s dangers. Blacke says when he complained at a meeting, he was labeled a troublemaker and resigned under pressure.

“Normally when you take over a job, you have a briefing _–this is what’s out there, here’s what you need for protective equipment,” says Blacke, who testified at a Senate Democratic Policy Committee hearing last year. “There was nothing, nothing at all.”

Blacke and Langford were among those whose civil claims were resolved in arbitration.

Kimberling is among nearly 50 Guard veterans –most from Indiana, a smaller number from Oregon and West Virginia — who’ve sued.

Mike Doyle, the Houston lawyer representing the soldiers and civilians, maintains KBR knew as early as May 2003 the chemical was there, but didn’t close the site until that September.

“Once they (KBR) found out about it, they didn’t tell anybody and they did everything to conceal it,” he contends. “You have (KBR) managers in Houston, in Kuwait City who knew about this. Their staff was getting reports and soldiers and civilians who were in the field were told, ‘No big deal. There’s nothing to worry about.”‘

The lawsuit cites minutes of an August 2003 KBR meeting that mentions “serious health problems at the water treatment plant” and notes “almost 60 percent of the people now exhibit the symptoms.”

In a recent wide-ranging interview with The Associated Press, KBR chairman William P. Utt suggested the company be given some latitude with its military contracts.

“We think there ought to be some consideration given in many of these claims to the same protections the government has from these suits that exist,” he said.

He also said KBR has been unfairly targeted in war zones. “People think there’s an opportunity here in Iraq, let’s paint it on KBR, then we’ll worry about making the facts precise or correct later,” Utt said.

As for the water plant, KBR says once it learned of the chemical, it took precautions to protect workers, notified the Army Corps of Engineers and led the cleanup. It says the Corps had previously deemed the area safe.

KBR also points to Army tests of 137 Indiana Guard soldiers that showed no medical problems that could be linked to exposure, as well as a military board review that found it unlikely anyone would suffer long-term medical consequences.

But Bayh and Doyle say those tests were done too late to be valid and note that soil tests were taken after the contaminated area was covered with asphalt and gravel.

Doyle also disagrees with KBR’s contention that workers weren’t there long enough — weeks or months — to have elevated cancer risks.

It can take a long time for symptoms of illness to surface — five to 10 years or more for cancer. But some of those who say they were exposed are already ill.

Gentry, a retired lieutenant colonel who commanded the Indiana Guard unit, is in the late stages of lung cancer, which has spread to other parts of his body, according to his friend, Christopher Lee.

Gentry hasn’t sued, but in a December 2008 deposition he recalled complaining to his superiors after his soldiers were told by KBR workers the orangish sand was a cancer-causing chemical. He said it was “very disappointing” that KBR managers didn’t share that information.

“I’m dying because of it,” he said.

While acknowledging he wasn’t 100 percent certain that’s why he has cancer, Gentry — who served a second tour in Iraq — said his doctor “believes the most probable cause was my exposure to this chemical.”

KBR’s actions, he said, had put “my men at risk that is unnecessary.”

The Indiana, West Virginia and Oregon National Guards have sent hundreds of letters to soldiers notifying them of possible contamination and urging them to seek medical attention. The Oregon Guard also set up a Facebook page and reports about 15 soldiers have reported medical symptoms.

Bayh has introduced a bill calling for a special medical registry that would require the Department of Defense to notify all military members of exposure to potential toxins — and provide comprehensive medical care. (It would be limited to those serving after Sept. 11, 2001.)

A similar notification measure was approved Thursday in the U.S. House, an amendment to the defense authorization bill introduced by U.S. Rep. Kurt Schrader, an Oregon lawmaker.

All these measures come too late for 1st Sgt. David Moore, who served with Gentry.

He thought his persistent cough in Iraq would stop when he
returned home. Instead, breathing became difficult; he eventually
needed a chair in the shower because he could no longer stand, says
his brother, Steve. Moore had nosebleeds, too, and boil-like rashes behind his ears and on his back, arms and legs. He went from doctor to doctor.
“None of them could ever figure out what it was,” his brother says.

By late 2007, the one-time construction worker — who had been “strong as an ox,” and ran 31/2 miles every other day — couldn’t even venture outside, Steve Moore says. But he didn’t give up.

“He was always upbeat,” his brother says. “He said, ‘They’ll figure it out, they’ll figure it out.’ He thought that until the last time I talked to him. You could see the fear in his eyes. They had him on 100 percent oxygen and he still couldn’t breathe. He requested to be put on a ventilator so they could figure it out.”

Moore died in February 2008. The cause was lung disease. His death was ruled service-related. His brother believes it was hexavalent chromium.

Larry Roberta, the former Oregon Guardsman who needed stomach surgery after his return, still has physical and emotional problems: Post traumatic stress. Mood swings. Nose polyps. Chest pains. Migraines that can keep him bedridden for days.

He takes two inhalers — he can’t walk a block without them — and high blood pressure medicine every day and testosterone shots every two weeks.

“I have 100 percent disability,” he says. “I’ve got a long laundry list of things that happened to me while I was there. If you add it all up, I’d be almost 200 percent disabled.”

Roberta recently testified before Oregon lawmakers, urging them to set aside money for Guard members who develop cancer from exposure to the chemical.

His wife, Michelle, says her husband’s illness has dramatically changed his outlook.

“He has no ambitions for life anymore,” she says. “At his age, that makes me very sad. I worry about him every day.”

Kimberling, the former Indiana Guardsman, struggles as well.

The father of two young children — he’s a pharmaceutical salesman in Louisville, Ky. — says he hasn’t been able to get life insurance because his possible exposure is mentioned on his medical records.

Sometimes, he says, it’s hard to sort out his real aches from his fears.

“I feel like I’m a 38-year-old in a 60-year-old’s body,” he says. “There are a lot of things that seem to be going south a lot quicker than they should. Sinus problems … pain in my joints that I’ve never felt before.

“I’m not sure if it’s the anxiety of finding out about it or not. I kind of know and feel it’s just a matter of time before it catches up with me.”

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Kimberly Hefling in Washington, D.C., contributed to this report.