The federal decision rejects the argument that worker safety at Umatilla Chemical Depot was a contractor's responsibility

02/10/04

The U.S. Army failed to provide enough medical care and leadership during a 1999 incident that sickened workers at Umatilla Chemical Depot, a federal judge decided.

The Army was negligent in at least six different ways, from not having a system to discover health threats to its failures to get sick workers to local hospitals efficiently, U.S. District Court Judge Dennis Hubel wrote in a "Findings of Fact" statement released late Friday.

The decision does not consider what damages, if any, the Army must pay for its negligence. But it rebuffs the Army's assertion that it had properly delegated its worker-safety responsibility to a contractor, Raytheon Co., and should be immune from the worker lawsuit.

Hubel's action paves the way for a second phase of the workers' lengthy court battle, which will seek to establish what sickened the workers and what damages the Army might owe them. The two sides will discuss how to proceed Feb. 27.

"Four years of denying responsibility is now history," said James McCandlish, the Portland lawyer representing the workers. "The Army needs to step forward and reassure the community that it's on our side (and) take responsibility."

The suit follows a mysterious illness that affected dozens of laborers building a chemical weapons incinerator at the depot Sept. 15, 1999. Umatilla Chemical Depot holds stores of lethal nerve agents, among them Sarin and mustard agents.

Workers reported symptoms such as breathing trouble, chest pain and nausea. Ultimately, 34 went to the hospital. Some say they remain sick from the event, which they fear involved one of the chemical agents stored in closed bunkers at Umatilla.

Sickened workers sued the Army and Raytheon, which built the incinerator designed to destroy the weapons. The company settled with the workers last year.

The Army is not commenting on the ruling because the trial is still going on, Umatilla spokeswoman Mary Binder said Monday. But she said the service's investigation into the incident found no evidence that chemical weapons were involved -- the same conclusion reached by state, federal and Raytheon investigations.

Hubel said he will hear evidence on what caused the workers' sickness in the coming trial phase. That phase also will decide whether the Army should have decontaminated the workers and area, in case chemical weapons were involved.

For now, he established that the Army had a responsibility to respond more aggressively than it did in 1999 to emergencies that could possibly involve chemical agents.

Specifically, he found the army was negligent for not having a communication system to discover such emergencies; not promptly moving to assess the situation and its cause; not taking command of the emergency response; not communicating well with medics at local hospitals; not diagnosing the cause of the injuries; and not properly transporting the sick workers.

Hubel sided with the Army on two points, saying it was not required to give chemical weapons antidotes to workers or carry out real-time monitoring of the base's air following the incident.

Andy Dworkin: 503-221-8239; andydworkin@news.oregonian.com