Words by Bridget Foster.
That question may come before the United States Supreme Court if the former Halliburton company Kellogg, Brown and Root (KBR) has its way. The Houston-based company is facing several class-action and individual lawsuits alleging negligence in its operation of burn pits for the military on bases throughout Afghanistan and Iraq. The company was responsible for waste disposal and burn pit operation for about a third of the military’s bases.
KBR is claiming they should be granted the same immunity from lawsuits stemming from war zone injuries that the US government enjoys and has petitioned the US Supreme Court to hear arguments in the case of Alan Metzgar et. al. v. KBR, which is a collection of class action and individual lawsuits. Attorneys for KBR argue that the case should be heard by the Supreme Court because it addresses issues of constitutional law on combatant activities and contract support.
A U.S. District Court in Maryland had dismissed the lawsuits last year, upholding KBR’s claims of immunity. However, in March of this year, the 4th U.S. Circuit Court of Appeals ordered the case to be sent back to its original court for reconsideration for further investigation. According to the federal appeals court, the district court had failed to sufficiently explore whether the military had “permitted or required KBR to deviate from the contract provisions in certain circumstances or [collect evidence supporting same].” The appeals court ruled that KBR would be entitled to immunity only if it could be proved that “it adhered to the terms of its contract with the government.”
The hundreds of plaintiffs in the case say the smoke from the open-air burn pits spewed toxins such as dioxin and other volatile organic compounds from the burning of trash, human waste, battlefield waste, hazardous waste, biomedical waste and items that were listed on “do not burn” lists. The lawsuits allege, among other things, that KBR failed to take steps to minimize the smoke from the pits and used the open-air pits instead of incinerators. The plaintiffs in the suits allege that inhalation of the acrid smoke has resulted in respiratory illnesses, neurological disorders and rare cancers. KBR has denied the allegations of burning illegal materials, citing a lack of evidence to support the claims, outside of anecdotal reports.
Last year on January 10, 2013 President Obama signed a law requiring the VA to create and maintain a database called the Open Air Burn Pit Registry to identify and monitor veterans who inhaled pollutants spewing from the Afghanistan and Iraq burn pits. The VA was given until January 10, 2014 to establish this registry, yet almost 4 months later, the registry is still non-existent. According to the VA’s website, the registry’s launch “has been postponed to spring 2014 to allow adequate time to develop and test the system’s software and hardware, as well as to ensure data security and accessibility.” The VA has yet to announce a launch date for the registry and neither Congress nor the President have put forth any comprehensive plans to provide treatment or research programs for servicemembers exposed to the burn pits.
As a matter of fact, in the burn pit section of its public health website, the VA maintains that exposure to smoke or fumes from the trash sites does not correlate with long term health problems, based on research reported in October 2011 by the Institute of Medicine. It’s worthy to note that the scientists who conducted the “research” based their conclusions on sampling data that had been collected in 2007 and 2009 from the open air pit at Joint Base Balad in Iraq, and not on any new data they collected themselves.
If the Supreme Court denies KBR’s motion to hear the arguments in the lawsuit, the case will continue to be heard in the Maryland U.S. District Court. The court is expected to announce its decision in June or October.