11/13/2010 12:00 am ET | Updated May 25, 2011

Exposing Troops to a Carcinogen Is Not Part of Supporting the Troops

I truly did not intend to write about KBR for two consecutive days in a row. But as the saying goes, when it rains, it pours.

We have a new development in the Qarmat Ali lawsuit which I last wrote about on October 22. This is the case where U.S. National Guard troops from Indiana, Oregon, South Carolina, and West Virginia were exposed to sodium dichromate, a known and highly potent carcinogen at the Qarmat Ali water treatment facility in Iraq.

The ever laudable Ms. Sparky already has an excellent post about this and I'll get back to that later.

But as The Oregonian first reported:

Documents exchanged in an Oregon lawsuit suggest that Kellogg, Brown and Root managers had medical tests proving workers at an Iraqi water treatment plant had "significant exposure" to a cancer-causing chemical, and managers worried about KBR's liability as a result.

The minutes of an Oct. 2, 2003 meeting about blood and urine tests from workers at the Qarmat Ali plant contradicts KBR's long-standing claims that there was no medical evidence of harm. The documents also indicate KBR's top health, safety and environmental manager knew plant workers continued to use the toxic chemical long after health alarms were raised. While piles of the corrosion fighter containing hexavalent chromium blew in the desert wind, the workers inside mixing the material wore gas masks.

You can find the minutes here.

Now bear in mind that ever since the law suit was filed against KBR it has steadfastly denied any wrongdoing and stated there is no proof of health problems from exposure to hexavalent chromium at Qarmat Ali. This, despite the fact that hexavalent chromium is recognized as a human carcinogen via inhalation [Note: Hexavalent chromium refers to chemical compounds that contain the element chromium in the +6 oxidation state. Virtually all chromium ore is processed via hexavalent chromium, specifically the salt sodium dichromate.].

Now I ask you to go and read the entire minutes in their entirety just so people don't say I am cherry picking selected excerpts to prove a point. That said, consider the remarks at the very beginning. These are said by Chuck Adams, who was KBR's HSE Manager for Team RIO [Restore Iraqi Oil] South.

We are here to talk about the problem and share information so that we are all on the same page
Around May-June we identified what chemicals were present
Around July realized that Sodium Dichromate was in more places than supposed to be, basically open to atmosphere, scattered all over the water treatment plant
Sodium Dichromate has been banned in the USA, no longer used for Water injection
Sodium Dichromate has been identified as a high carcinogen
Started doing testing to assess potential problem. Results showed high levels of Chrome III and Chrome VI
Air samples results did not show threat
Urine and blood sample showed elevated of chromium, meaning that there was a significant exposure
Started doing some sealing in the area but people were breaking the seals.
Wet back to do re-sealing
Cannot allow personnel to be exposed, the company will be liable if let this happen.

Now think about that last point for a moment. How, in good conscience can anyone at KBR now claim that there is no proof of health problems from exposure to hexavalent chromium when six years ago its own Health, Safety Environmental Manager was warning of the liability to the company if it continued to allow people to be exposed to it?

I mean you don't have to be Mr. Spock to see the illogic in that.

Unless, of course, you are KBR, in which case it whines, oops, I mean argues, that the culprit is clear: it is the fault of the plaintiff's lawyers who "improperly are attempting to influence public opinion, and the opinion of potential jury pools, by selectively disclosing only a few documents out of the many thousands of documents produced in this case." I am reminded of the old classic truth, "When the law is against you, argue the facts. When the facts are against you, argue the law. When both are against you, call the other lawyer names."

I'm guessing that it is only a matter of time until KBR starts arguing that the lawyers for the National Guardsman are engaging in lawfare, which is defined as a form of asymmetric warfare waged via the use of domestic or international law with the intention of damaging an opponent.

But you can read KBR's full response here.

Now as I've noted in the past part of KBR's defense is to channel the Nuremberg Defense, i.e., it was just following orders. Putting aside the fact that this is germane to regular soldiers and the law is hazy on its applicability to contractors and that it is an ethically deplorable rationale, there is at least a grain of truth in it, which it brings us back to Ms. Sparky's post. Many of her readers are particularly well informed, as they have often worked as contractors themselves.

They point out that:

KBR had a Contracts Administrator to communicate to DCMA [Defense Contracting Management Agency] Contracting Officers to ask what they should have done about the situation - clarify. Where is that communication KBR ? What did DCMA tell the company to do ?
There are pieces missing, but this memo should lead to a few depositions being taken from those in attendance - some of whom have probably already claimed they knew nothing.


A Contracting Officer would still need to make a determination about this chemical. Who was the contracting officer in charge of that contract ? We want to know their name (s) Where is his or her deposition?

Indeed, increasingly it seems a case of what did KBR know and when did it know it. Perhaps we should start calling this case Qarmat Aligate

It is a good thing that KBR isn't a member of the trade group that used to be called IPOA ). Otherwise IPOA might have to rethink its traditional talking point that thanks to contractors "Iraq and Afghanistan are the best supported, best supplied military operations in history."