Veterans ask court to reinstate lawsuits over open burn pits

Veterans and their families asked a federal appeals court Wednesday to reinstate dozens of lawsuits alleging that a government contractor caused health problems by using burn pits during the wars in Iraq and Afghanistan.

More than 60 lawsuits allege that KBR Inc. — a former Halliburton subsidiary — dumped tires, batteries, medical waste and other materials into open burn pits, creating harmful smoke that caused gastrointestinal illnesses, neurological problems, respiratory problems, cancers and other health issues in more than 800 service members.

The lawsuits, which were filed in multiple districts around the country and then consolidated, also alleged that at least 12 service members died from illnesses caused by the burn pits.

Last year, a judge in Maryland dismissed the lawsuits, finding that the U.S. military made all of the key decisions and had control over KBR's use and operation of burn pits. The lower court found that analyzing military decision-making during war is a political question not appropriate for judicial review.

In arguments before the 4th U.S. Circuit Court of Appeals, a lawyer for the service members asked the court to reverse that ruling and allow the lawsuits to move forward.

Attorney Susan Burke said the military contracted with KBR to provide support services in Iraq and Afghanistan. She said KBR repeatedly violated the terms of its contract to handle waste disposal.

Burke said KBR operated burn pits at 119 locations when it only had permission to use the pits at 18 sites. She said the contractor also disobeyed a military directive against burning hazardous materials.

At all 119 locations, KBR "negligently burned substances they were directly told not to," Burke said.

KBR's attorney, Warren Harris, urged the three-judge panel to uphold dismissal of the lawsuits.

Harris said KBR operated only 31 burn pits, while the remainder were operated by the military.

"The decision to use burn pits was made by the military," Harris said.

He said the military decided where the pits would be located, what hours they would operate and what would be burned.

In his 2017 ruling dismissing the lawsuits, U.S. District Judge Roger Titus said the military recognized that there were certain health risks associated with burn pits, but balanced those risks "against the greater risk of harm to military and other personnel should other methods of waste management be utilized."

Titus found that the use of open burn pits "was a quintessential military decision made by the military, not KBR, and was a decision driven by the exigencies of war."

The 4th Circuit panel did not indicate when it would rule.