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Military Law

Oct. 8, 2020

Veterans today face a new Agent Orange: burn pits

Increasingly, our armed forces are imperiled by toxic hazards that have adverse effects on their health. Those who served in Iraq and Afghanistan got to experience burn pits.

Moore eileen web

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

In a former life, Justice Eileen Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal and the Cross of Gallantry with Palm. She is a member of Vietnam Veterans of America. Since 2008, she has chaired the Judicial Council' Veterans and Military Families Subcommittee. She is a member of the American Bar Association's Standing Committee on Armed Forces Law, is an advisor to the California Lawyers Association's Military and Veterans Committee and the Orange County Veterans & Military Committee as well as a founding member of USVets' Women's Advisory Committee. She is the author of two award-winning books, Race Results and Gender Results.

For decades, the Navy procured equipment containing asbestos, hurting sailors who often developed cancer. In 1966, a U.S. Air Force bomber and tanker collided over Spain when attempting inflight refueling, exposing 1,600 service members to plutonium. In Vietnam, the military used Agent Orange as part of its chemical warfare program, resulting in such illnesses as leukemia and Hodgkin's lymphoma in military personnel and birth defects such as spina bifida in their children. Service members who served in the Gulf War came home with enduring chronic illnesses after exposure to certain pesticides. When Navy sailors were dispatched to Japan after its Fukushima Daiichi Nuclear Power Plant exploded following the 2011 tsunami, they were exposed to radiation.

Increasingly, our armed forces are imperiled by toxic hazards that have adverse effects on their health. Those who served in Iraq and Afghanistan got to experience burn pits.

What are burn pits?

Overseas bases necessitate the management of waste. When the United States went into Iraq and Afghanistan, the military determined incinerators, landfill or recycling were not feasible means of waste elimination. Instead, burn pits have been used. According to two commanding generals' testimonies and military documents, a federal court determined in In re KBR, Inc., Burn Pit Litigation, 893 F.3d 241 (2017), that the military directed the following items to be burned in the pits: plastic water bottles, animal carcasses, dining facility trash, woven fiber filters and oil filters may be burned in open pits. Since the military has heavily depended on civilian contractors to support it mission, waste management has been largely performed by civilian companies under the direction of the military. Despite the commanders' testimonies that only certain items were to be burned in the pits, a civilian employee provided a declaration in the federal court action that "if something was not specifically prohibited, then it was allowed to be burned."

A 2019 New York Times article about burn pits includes an interview with Ryne Robinson, a Marine who served in Iraq. Robinson said everywhere he went in Iraq during his year-long deployment, he saw burning trash pits. Some were as large as municipal dumps, filled with abandoned military vehicles, synthetic piping and discarded combat meals. Robinson said the smell was horrendous. Other service members said the burn pits were ignited with jet fuel.

Little or no oversight by the Department of Defense

A 2019 Public Contract Law Journal article says burn pits in the Middle East were regularly used for waste management, at least until 2010, and the Department of Defense had little oversight. Rather, the department relied on local deployed commanders to balance poorly defined environmental concerns against more immediate security and mission considerations. The article further states the department considered only the immediate costs of waste disposal and ignored the longer term costs of indiscriminate open-air burning. The 2010 National Defense Authorization Act, Pub. L. No. 111-84, Section 317, 123 Stat. 2190, required the Defense Department to develop regulations restricting the use of burn pits, but the Public Contract Law Journal article reports that burn pits persisted for several more years.

Health consequences to burn pits

In the short term, service members and veterans exposed to burn pits report irritation of the nose, eyes and throat, headaches, nausea and difficulty breathing. When he came home to Indiana, Robinson suffered from terrible headaches, which his doctors attributed to post-traumatic stress disorder. But after he had a seizure in 2018, he was diagnosed with a glioblastoma brain tumor. Robinson's June 1, 2020, obituary says he died after a long, courageous battle with brain cancer.

After Robinson was diagnosed with a brain tumor, his wife told New York Times reporter Jennifer Steinhauer that she wondered why the Department of Veterans Affairs grilled her about her husband's deployment. The VA asked questions about exactly where the Marine had been in Iraq. She didn't know what that had to do with his tumor. So, she started to do her own research, and realized that many other families, including former Vice President Joseph R. Biden Jr., believed that such tumors stemmed from breathing toxic fumes from the open-air trash fires that were standard on American military bases in the desert war zones. Indeed, the former vice president told CBS News last May 20 that his son Beau volunteered because he thought he had an obligation to go, "and because of exposure to burn pits -- in my view, I can't prove it yet -- he came back with stage four glioblastoma." Beau died in 2015.

The 2019 Public Contract Law Journal article states that Major Beau Biden spent his deployment at Camp Victory and Joint Base Balad, both of which operated multiple open-air burn pits to dispose of waste with no environmental safeguards. Biden returned home from Iraq in 2009, but only eight months later suffered a stroke. His health continued to deteriorate, and he was diagnosed with brain cancer in 2013.

Issues involving health consequences of burn pits probably won't be decided in the courts

Long before burn pits were used in the armed forces on a massive scale, court decisions had precluded most lawsuits against the military or those working under its direction. In Feres v. United States, 340 U.S. 135 (1950), the U.S. Supreme Court held that service members may not sue the military for the negligence of others in the armed forces after sustaining injuries incident to service. In Chappell v. Wallace, 462 U.S. 296 (1983), Black Navy seamen brought a race discrimination claim against their military superiors as individuals, apparently in an attempt to plead around the ban against suing the military for acts incident to service set forth in Feres. They lost their case under the Feres doctrine. In Boyle v. United Technologies Corp., 487 U.S. 500 (1988), the Supreme Court held that the manufacturer of a Sikorsky helicopter used by the military could not be held liable under the doctrine of military contractor defense.

The appeals court in the Burn Pit Litigation noted that as of 2017, 63 separate complaints have been filed by service members since 2008, alleging they suffered harms from being exposed to smoke from open air burn pits and impure water. Those cases were consolidated and transferred to the District of Maryland for pretrial proceedings. The operative complaint alleged civilian contractors Kellogg, Brown & Root, LLC and Halliburton Company failed to design, manage and operate the burn pits safely or to treat and monitor water qualities. In these cases, there was some evidence the civilian defense contractors at times varied from the military's directions.

A federal trial court in Maryland, mindful that our Constitution entrusts the president and Congress, not the courts, with the power to resolve political questions, held that the cases were not justiciable and the civilian contractors were shielded through derivative sovereign immunity. The 4th U.S. Circuit Court of Appeals reversed and remanded for further development of a record. When the matters were again before the 4th Circuit in 2017, the appeals court agreed the cases involved nonjusticiable political questions. They were ordered dismissed. The Supreme Court denied a petition for certiorari.

The VA and burn pits

In 2013, Congress directed the Department of Veterans Affairs to establish and maintain a health registry for service members who may have been exposed to toxic emissions from open burn pits in Southeast Asia since 1990 and Iraq and Afghanistan since 2001. According to the VA, as of Aug. 20, 2020, 212,829 service members and veterans completed the registry questionnaire. The VA's website informs registry participants they are contributing to research on airborne hazards and health, helping to improve the quality of care for veterans.

The New York Times article states that from mid-2007 through the end of November 2018, the VA had processed 11,581 disability compensation claims with at least one condition related to burn pit exposure, and of those, 2,318 claims were granted.

It looks as if Iraq/Afghanistan veterans will have just as tough a row to hoe in proving burn pits caused their diseases as Vietnam vets had in proving Agent Orange caused theirs. In Wayne v. Shulkin (2018 WL 798418), the VA denied a veteran's claim, concluding "[a]lthough ... the [v]eteran reports having developed inhalation problems due to chemical exposure in Iraq, he is not service connected for any respiratory disorder." The United States Court of Appeals for Veterans Claims affirmed denial of the claim.

In Marte-Mendez v. Wilkie (2019 WL 122070), an Army veteran served in Iraq and thereafter developed a brain tumor. He filed a claim with the VA, contending the brain tumor was the result of environmental hazards he was exposed to in Iraq. His claim was denied at the Regional Office. He went through the internal VA appeals process and his claim was denied there as well. The veteran found a doctor who concluded "that burn pits and oil fume exposure caused Marte-Mendez's cancer." The VA again denied his claim. The Court of Appeals for Veterans Claims remanded the matter for further proceedings.

To make matters tougher for veterans disabled from burn pit exposure, on Sept.11, 2020, the National Academies of Sciences and Engineering issued a press release. It says that limitations in existing health studies have resulted in insufficient evidence to determine whether U.S. troops' exposure to burn pit emissions in the Middle East can be linked to adverse health outcomes.

The agent orange of our generation

The website for Iraq/Afghanistan Veterans of America states that burn pits are "the Agent Orange of our generation" and an "urgent and growing threat that will impact an entire generation." IAVA keeps track of its membership's reports about burn pits, and 86% report exposure to burn pits or other toxins. Of those exposed, 89% report symptoms that are or may be related to burn pits or other toxins. Sadly only 53% of those exposed are registered in the VA's burn pit registry.

IAVA views burn pits and other airborne toxicants as a critical, urgent and growing threat that will impact an entire generation. The veterans organization is heavily involved in Washington, working with legislators to develop a presumption of exposure to burn pits, drive public awareness about burn pits, hold the Department of Defense accountable for injuries due to toxic exposures and strengthen the VA's registry tracking.

Conclusion

The Public Contract Law Journal article says the Defense Department acquisition authorities viewed burn pits as the most cost-effective waste disposal method, considering only the immediate costs of waste disposal, but ignoring the long term human costs. This situation is somewhat reminiscent of the "Let 'em burn" memo concerning the Ford Pinto. In 1968, Ford Motor Company engineers opined it would cost more to make the vehicle safe than it would to settle with burn victims. According to an April 30, 2001 Los Angeles Times article, a General Motors engineer estimated that the fiery deaths were costing GM only about $2 per vehicle. The article says the implication was that the cost of paying off injured victims was not enough to justify the expense of changing the vehicle's design. See also Grimshaw v. Ford Motor Company, 119 Cal. App. 3d 757 (1981).

But the big difference between the military's procurement decisions without giving much consideration to personnel safety and the Ford Pinto debacle is that people hurt by the Pinto had the opportunity to sue Ford Motor Company. As we in the legal profession have observed, there's nothing like a huge verdict to induce an enterprise to seriously study safer alternatives.

Nonetheless, there may be principled national security reasons for shielding the military from a barrage of lawsuits. At the same time, there are solid moral and ethical grounds for guarding the health of military personnel. Since service members cannot sue the military when it poisons them, the very minimum of what the military should do is to give at least as much consideration to their health as it gives to the cost of items procured and methods of mission selected. The Washington Post quoted entertainer Jon Stewart on Sept. 15: "War after war after war, we treat them as expendable. And when they come home, we're done with them." 

#359914

Ben Armistead

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