Court compels Army to turn over documents

By Frank (F. Ellsworth) Lockwood
Published in Hermiston Herald
August 13, 2002
(Also posted at www.cwwg.org)


HERMISTON - The United States District Court has ordered the Army to turn over documents pertaining to the workers injured by mysterious fumes at Umatilla Chemical Agent Disposal Facility (UMCDF) on Sept. 15, 1999.

No one from chemical demilitarization has been able to give a definitive answer as to what sickened workers in the building known as the MDB, causing some 30 of them to seek medical attention at nearby hospitals.

In February, the victims of the Sept. 15, 1999 incident filed what is called a "Motion to Compel." A motion to compel is a pleading which asks the court to tell someone, in this case the Army, to produce certain materials. The motion was filed because the Army refused to produce 58 requested documents, instead claiming a "deliberative process privilege." The order compelling discovery of 58 documents was signed by U.S. Court District Judge Dennis Hubel on April 3.

Past courts have refused to apply the shield when government misconduct or bad faith is at issue. The ill workers' case involves "the Army's credibility and the public's need to rely on accurate government fact finding and reporting," the plaintiffs' memorandum says. Disclosure of the documents would assist in restoring the public's faith in the management of the chemical weapons stockpiled at Umatilla, memorandum claimed.

On the other hand, if the documents prove that the contractor, Raytheon, now called Washington Demilitarization, knew that the air monitoring tests inside the Munitions Demilitarization Building detected chemical agents, then Raytheon's failure to notify, properly treat and decontaminate the injured employees could be "evidence of negligence or worse."

Workers hope the documents will reveal which defendants knew that Raytheon refused the Army Depot clinic's help, and who was responsible for that refusal. They also contend that air monitoring was conducted in the wrong rooms in the MDB, and the documents may show which, if any, defendants knew that. Also sought was information which would reveal which defendants knew why the RTAP monitoring units, stationed minutes away from the MDB, delayed for over three hours before beginning air monitoring at the site of the accident.

Depot officials, as well as depot workers privately, have told The Hermiston Herald that the Army did not treat the incident as if it were a nerve gas incident because it was impossible, they say, that nerve gas could have been involved.

The plaintiffs' memorandum claimed that, though the United States and the contractor, Raytheon, published separate investigation reports, the investigations were interrelated in a complex way.

The implication was that the reports by the U.S. Army Corps of Engineers, the depot, the Program Manager for Chemical Stockpile Demilitarization, and Raytheon Demilitarization depended upon each others' information, instead of drawing their own conclusions independently.

"These entities were reviewing and providing editorial comments on each other's draft reports, and were complexly linked together in the incident investigation," investigators for the workers reported.

Also involved in depot safety was Science Applications International Corporation (SAIC). SAIC regularly conducted safety reviews at the UMCDF construction site and reported the results to the Army, but e-mail from Loren Sharp, plant manager for Raytheon at the time, is expected to indicate that Sharp influenced SAIC investigator Leslie Hutchinson to make unspecified change his report.

Hutchinson alone, among investigators, discussed prior similar exposure incidents the week of Sept. 15, 1999 though the Army and SAIC are thought to have been "well aware" of the similar, smaller, incidents occurring around the time of the big incident.

Plaintiffs have alleged that the investigation was fraudulent. Each of the compelled 58 documents relates in some manner to the investigation of the incident. "These documents are the best evidence to prove or disprove this allegation," argued James McCandlish, attorney for the plaintiffs. McCandlish also wanted to access any personal copies of the investigators' reports, which could have handwritten notes that shed more light on the incident.

"The liability of the construction company defendants and SAIC will, in large part, be determined by what information each of them were aware of (fraud), or should have been aware of (negligence)," the plaintiffs' memorandum states, and the Army has an interest in shielding these contractors from liability, because they have indemnified Raytheon and SAIC is an agent of the Army, not an independent contractor for liability purposes.

Attorneys for the workers will try to prove that the Army hid the results from the public when gas was detected, that the Army misrepresented the results, thus clearing chemical agent as a cause, and that the Army falsely asserted the equipment was not sufficiently sensitive to rely on the admitted detections, but later spent several million dollars to stop the leaks where by agent had a clear path to the environment.

The suit also alleges the Army made false claims about wind direction during the incident. The Army records the wind speed and direction every 15 minutes at several stations located around the UMCD, but the actual records were not included in the reports, the memorandum states. The Army at first claimed the wind was blowing the wrong direction to have blown any agent in the direction of the MDB, but wind reports, later obtained through the Freedom of Information Act, indicated otherwise.

"The wind records do not exonerate chemical agent as a cause of the incident," the memorandum claims.

The Army issued a public press release at 2:30 p.m. on the day of the incident, stating that chemical agent was not the cause of the incident, although air monitoring for chemical agent inside the MDB did not begin until 3:10 p.m., and the results were not available until 3:45. (The incident had occurred about 11 a.m.)

Workers say they were assured the igloos were "air tight" and that chemicals could not escape. Later, the DEQ contended that vents and drains presented an open path to the environment, and required them to be modified.

Plaintiffs and their families say they continue to suffer the after effects of the September incident: damaged lungs, reactive airway disease, skin rashes and lethargy and more.

Meanwhile, attorneys amended the complaint for the third time, on June 17. Among other things, the amended complaint attempts to plea fraud claims with greater specificity and to reflect facts that had been learned by discovery up to that time. A fourth amended complaint is expected in the future.

The full discovery is expected to either confirm some concerns, or dispel them as "merely suspicions."
Frank Lockwood may be reached at 567-6457 or by e-mail at flockwood@hermistonherald.com