Remember when rioters in Watts, Calif., began shouting "Burn, Baby! BURN!" in the turmoil of 1965? I'm sure they didn't have the following future in mind.
That would be the various lawsuits against KBR for operating burn pits in Iraq and Afghanistan. But we should all be paying attention to this and not just for the human toll it has taken on soldiers and contractors. It also says something disturbing about the ability of the federal government to exercise proper control over its private contractors.
An article, "Military Burn Pits in Iraq and Afghanistan: Considerations and Obstacles for Emerging Litigation" by Kate Donovan Kurera, in the Fall 2010 issue of the Pace Environmental Law Review provides the necessary insight.
For those who haven't been paying attention the last four years the background goes thusly:
Burn pits have been relied on heavily as a waste disposal method at military installations in Iraq and Afghanistan since the beginning of United States military presence in these countries in 2001 and 2003, respectively. Little attention was paid to the pits in Iraq and Afghanistan until Joshua Eller, a computer technician deployed in Iraq, filed suit in 2008 against KBR for negligently exposing thousands of soldiers, former KBR employees, and civilians to unsafe conditions due to "faulty waste disposal systems." Eller and a group of more than two hundred plaintiffs returning from their tours of duty, attribute chronic illnesses, disease, and even death to exposure to thick black and green toxic burn pit smoke that descended into their living quarters and interfered with military operations.
The plaintiffs assert that they witnessed batteries, plastics, biohazard materials, solvents, asbestos, chemical and medical wastes, items doused with diesel fuel, and even human remains being dumped into open burn pits. Defense Department officials say this waste stream contained items now prohibited pursuant to revised guidelines. Plaintiffs contend that KBR breached these contracts by negligently operating burn pits.
As of August 2010 there were an estimated two hundred and fifty one burns pits operating in Afghanistan and twenty two in Iraq. The most attention has focused on the burn pit operating at Joint Base Balad in Iraq, which was suspected of burning two hundred and forty tons of waste a day at peak operation
While the health impact of the pits is what the media focuses on, Kurera sees even more important legal issues: She writes:
The Burn Pit Litigation certainly raises larger issues concerning the import of environmental and safety standards utilized during wartime settings. However it is the litigation that seeks to answer a more fundamental question of who should be held responsible for the alleged injuries. While U.S. law expressly prohibits using burn pits for waste disposal, the use of burn pits in Iraq and Afghanistan highlights the disparity in the application of environmental laws, regulations, and standards at overseas military contingency operational bases. One paramedic in Iraq noted this contrast, stating, "there is no such thing as the EPA here," while another soldier blogged, "[t]here is no way on Earth [the operation of burn pits] would ever be allowed back home... but hey, we're not at home, so it must be OK, right?"
Although the lawsuit was not filed until 2008 military personnel were complaining about them years before, For example, "In a 2006 memorandum, Air Force Lt. Col. Darrin Curtis, a former bioenvironmental flight commander at Joint Base Balad, identified the burn pit as an "acute health hazard for individuals," and noted "it is amazing that the burn pit has been able to operate without restrictions over the past few years without significant engineering controls..."
While one can debate whether DoD regulations and other laws, both national and international were sufficient to deal with burn pits -- the issue here is what it means when contractors, instead of the regular military, operates them.
In the mid-1980s, DoD made a policy decision to use civilian contractors to provide the military with logistical and operational services through the Logistics Civil Augmentation Program ("LOGCAF").(FN54) LOGCAP contracts allow military units to focus on combat and mission related activities rather than expending military personnel and expertise on logistical and operational support services.(FN55) In addition, LOGCAP contracts allow the military to identify needs and issue task orders to contractors as required by exigent circumstances.(FN56) The majority of the military base operations in Iraq and Afghanistan utilize LOGCAP contracts.(FN57)
KBR's requirements and obligations are outlined in contract documents and the Statement of Work ("SOW"). The LOGCAP SOW states, in relevant part, "the contractor will ensure the safety and health of personnel, equipment and supplies..." while providing field services including "[f]ood [s]ervice, [m]ortuary [a]ffairs, [s]anitation to include [h]azardous [w]aste, [b]illeting, [f]acilities [m]anagement, [m]orale [w]elfare and [r]ecreation..." The SOW states that the contractor will "adhere to sound environmental practices and all applicable Environmental Protection and Enhancement laws and regulations"(FN61) and implement a hazardous materials/waste services plan and an integrated safety and health program that comply with "Army Regulations, NATO Status of Forces Agreements, and federal, state and/or host country/region laws and statutes." A former KBR logistics contract manager testified before Congress that KBR "management would brag that they could get away with doing anything they wanted because the Army could not function without them... KBR figured that even if they did get caught, they had already made more than enough money to pay any fines and still make a profit."
The problem for those suing is that they have "a number of legal hurdles ahead in order to successfully prevail in this litigation."
The claims Eller et al. have asserted include typical elements of toxic torts, such as issues of causation. But defendants like KBR and Halliburton, a government contractors, asserts various liability shields based on the theory that government immunity should be extended to them.
I won't review them here, other than to cite Kurera's conclusion:
What is clear, however, is none of the tests or standards discussed within this article are sufficient to address the liability of government contractors under military logistics and performance contracts in the wartime context. The FTCA, the Feres doctrine, and the Boyle decision could not imagine the scope of military contracting taking over roles that once were exclusively conducted by military personnel. The Boyle test is likely too narrow to address LOGCAP contracts dealing with waste disposal services, while Hudgens and Saleh have their own limitations. Although Hudgens addressed a maintenance services contract, the government specifications for conduct under this contract were still fairly well defined, allowing the court to effectively modify the Boyle test. Although the Boyle court suggested it should not matter what type of contract it is, the Boyle test is extremely difficult to apply because LOGCAP contracts by their nature lack the specificity of supply contracts. Application of Saleh presents limitations to the Burn Pit Litigation as well. The Saleh test applies to combatant activities; although burn pit operation and use occurred during wartime in a combatant zone, the activity itself is not combative.
The lack of a clear test for holding government military contracts liable under LOGCAP contracts poses significant issues for Plaintiffs in the Burn Pit Litigation. Although Plaintiffs intend to litigate this suit as a "garden variety toxic tort" case, the factual complexities will pose concern for a reviewing court in determining whether the negligence claims can be judged as such and not be influenced by the wartime context and setting.
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