Defense Environment Alert
an exclusive biweekly report on defense policies
for cleanup, compliance and pollution prevention
Vol. 12, No. 22--November 2, 2004
WORKERS PLAN APPEAL OF RULING AT UMATILLA CHEMICAL STOCKPILE
Workers involved in constructing a chemical demilitarization plant will
appeal a federal district court ruling that found the Army was not responsible
for injuries they suffered during a 1999 incident, despite the Army's negligence
in failing to follow certain emergency response procedures, according to
an attorney for the plaintiffs.
The U.S. District Court for the District of Oregon issued the ruling in
Everett Akers, et al., v. United States of America, et al., Oct. 14. While
the court last February found the Army to be negligent by failing to follow
certain mandatory procedures in response to construction workers' acute illnesses,
it has now ruled against the workers on the issue of causation and whether
the Army failed to implement decontamination procedures.
"Plaintiffs have not shown by a preponderance of the evidence that the
Army's failures to immediately ascertain the cause of the September 15 incident,
implement decontamination procedures, intervene in and manage the medical
response, or communicate more effectively with [Good Shepherd Community Hospital],
caused or exacerbated their injuries," U.S. Magistrate Judge Dennis J. Hubel
says in his opinion. "The evidence establishes that the plaintiffs were
exposed to an unknown respiratory irritant on September 15, 1999. Plaintiffs
have not shown that the Army was responsible for their injuries." The decision
is available on InsideEPA.com. See page 2 for details.
At issue is the Army's response to a Sept. 15, 1999, incident at the Army's
Umatilla chemical weapons stockpile site in Oregon. Forty-nine construction
workers filed suit, alleging they were exposed to the nerve gas sarin and
mustard gas while constructing a chemical munitions demilitarization building
at the site.
On that day, dozens of workers experienced the acute onset of various ailments,
including upper respiratory tract and airway irritation, and in some cases
a metallic taste in their mouths. But Oregon state agencies, the Army and
its contractor have all contended that evidence indicates a chemical agent
release was not responsible, and the state agencies say their investigation
could not pinpoint a cause (Defense Environment Alert, Aug. 15, 2000, pl9).
The workers were treated by on-site emergency medical technicians employed
by the chemical weapons destruction contractor and were observed or treated
by the local hospital.
The court examined whether the Army's failure to implement decontamination
procedures caused injuries by increasing dose exposure time or because steps
were not taken to reduce harm. Specifically, it considered whether the workers
were exposed to sarin, mustard gas or an unknown respiratory irritant.
The court found no evidence of exposure to mustard gas or sarin. In closely
examining the sarin issue, it concluded that the workers' symptoms were inconsistent
with sarin exposure; observations of the surrounding environment, such as
a burning odor and a colored visual cloud, were inconsistent with sarin,
which is odorless and colorless; and the preponderance of evidence indicated
no leak from storage igloos occurred.
Rather, the court concluded the workers were exposed to an unknown respiratory
irritant through inhalation.
The Army's lack of an active role in the workers' treatment and transfer
to the hospital did not cause or exacerbate their injuries, the court determined.
It found that the medical procedures the contractor followed were appropriate
for exposure to a respiratory irritant.
A spokesman for the Army's Chemical Materials Agency says the Army is pleased
with the court's decision, noting that the Army has believed all along that
chemical agent was not involved in the incident.
The attorney for the plaintiffs declined to comment on the ruling.