Across Iraq, Afghanistan, and other areas of Southwest Asia, United States military bases use open-air pits to burn and dispose of waste.1 These “burn pits” are used to dispose of a variety of materials, including chemicals, medical and human waste, munitions and other unexploded ordnance, and discarded food. Many U.S. military bases are set up in areas without infrastructure and, as a result, lack a proper trash disposal system.2 For example, a report issued by the United States Army Public Health Command concerning a burn pit at Joint Base Balad, a major logistics air base in north central Iraq, indicates that the Balad burn pit was used to prevent the possibility of exposing service members to combat should they have to exit the secured perimeter of the base to dispose of waste.3 The report also indicates that the Balad burn pit was used to improve the overall sanitary conditions on the base.
While burn pits may be one of the few viable and safe methods of waste disposal on U.S. bases abroad, growing attention is being given to possible health risks of exposure to toxic chemicals emitted by the burning waste.
Health Concerns Related to Burn Pit Exposure
For years there has been somewhat of a debate over the extent of the injuries caused by burn pit exposure. The Department of Veterans Affairs (VA) has focused its attention on acute and temporary health issues caused by burn pit exposure. The VA indicates that health concerns related to burn pits include temporary eye irritation, cough, breathing difficulties, and rashes.4 The report by the United States Army Public Health Command concerning the Balad burn pit states that smoke exposure can cause acute symptoms such as an irritated respiratory system, reddened eyes, and a cough.5 However, the Public Health Command’s report also acknowledges that service members exposed to burn pits may experience long-term health effects, some of which may result from combined exposure to burn pit smoke, industrial pollutants from the surrounding areas, and natural elements such as sand and dust.6
One of the earliest major studies concerning health complications resulting from burn pit exposure is the report issued by the Institute of Medicine (IOM) (now the National Academies of Sciences, Engineering, and Medicine – Health and Medicine Division (HMD)) on October 31, 2011.7 Using air sampling data from Joint Base Balad, the study found some evidence of reduced lung function resulting from burn pit exposure, but found insufficient evidence of exposure leading to respiratory illness and other diseases.8 The study also suggests that exposure to dust and pollution in Iraq and Afghanistan may pose a greater health risk than exposure to burn pits.9 However, this study notably did not include any assessment of health information from actual service members, and thus highlighted a need for a longer-term study on service members who were actually deployed at Joint Base Balad and other bases abroad.10
Since the IOM study was published, the VA has indicated that it will conduct further long-term studies to assess the potential health concerns resulting from burn pit exposure, based in part on the recommendations contained in the study.11 As suggested in the IOM study, future research is highly needed in order to fully understand the scope of potential health risks caused by exposure; however, there will be difficulties in obtaining accurate information due to complex factors such as pre-disposition to respiratory diseases, lack of burn pit location data, and incorrect self-reporting of exposure dates. Without such research, there are increasing concerns that burn pit exposure will continue to contribute to health issues, including more serious complications like brain tumors and constrictive bronchiolitis.12
The Airborne Hazards and Open Burn Pit Registry
In response to concerns that veterans were suffering from respiratory issues as a result of burn pit exposure, Congress directed the VA in 2013 to establish a registry for service members who may have been exposed to adverse effects of burn pits used during deployments.13 In June 2014, the VA opened the Airborne Hazards and Open Burn Pit Registry (Registry).14 The Registry is available to service members who deployed to operations in Southwest Asia at any time on or after August 2, 1990, or were deployed to Afghanistan or Djibouti on or after September 11, 2001, including conflicts in Iraq, Afghanistan, Kuwait, and Saudi Arabia.15 This timeframe includes those who served in Operation Iraqi Freedom, Operation Desert Shield, and Operation Desert Storm.16 According to the VA, over 170,000 service members have completed the Registry’s questionnaire.17 After completing the Registry questionnaire, service members have the option of obtaining a free in-person medical examination related to enrollment in the Registry.18
When Congress instructed the VA to establish the Registry, it also ordered an independent review of the creation of the Registry and the use of its data.19 The VA subsequently asked the National Academies of Sciences, Engineering, and Medicine to conduct the assessment of the Registry in the initial months of its use.20 The National Academies released its report in February 2017 and made multiple recommendations on improving both the structure and use of the information collected by the Registry to increase participation in it and improve the potential utility of the information collected.21 These recommendations included eliminating questions related to former residences and non-military work, a plan for integrating data from the VA and Department of Defense to reduce the amount of input required by a Registry participant, and evaluating factors affecting non-completion of the Registry questionnaire in order to increase enrollment.22 The VA is currently working to incorporate the recommendations into the Registry, although it is unclear when the revisions will be completed.23
Recent Litigation Involving Burn Pit Exposure
In early 2018, a judge in the U.S. Department of Labor Office for Workers’ Compensation Programs ruled that burn pit exposure in Iraq led to lung disease.24 The case involved an employee of private contractor KBR Inc. (formerly a subsidiary of Halliburton Corporation), Veronica Landry, who claimed she was consistently exposed to toxic burn pit fumes while working at U.S. military bases in Iraq, near Mosul, in 2004 and 2005.25 Landry chose to file her case with the Department of Labor because she felt she could not turn to the VA as a private civilian contractor.26 After hearing evidence of the employee’s hospital visits and symptoms, including severe pain and wheezing, the judge found that she suffered from deployment-related lung disease.27 The court concluded that KBR and its insurance provider, AIG, were responsible for the employee’s past, present, and future medical bills relating to her illness.
While this case was considered a success for veterans’ advocates fighting for acknowledgement of the issues caused by burn pit exposure, the plaintiffs in a separate case against KBR originating in the U.S. District Court for the District of Maryland did not enjoy the same success.28 The plaintiffs (comprised of military personnel, civilian contractors, and surviving family members) sought to hold KBR liable for significant health problems allegedly caused by toxic fumes emitted from burn pits used by KBR in Iraq and Afghanistan.29 The District Court in 2017 held that the issues in the case involved a nonjusticiable political question because the military had sole control over the use and operation of the burn pits at issue.30 The Court determined that the decision to use the burn pits was a matter of “military wartime judgment,” and thus was not within the Court’s jurisdiction.31 The case then made its way to the U.S. Court of Appeals for the Fourth Circuit, which agreed that KBR was acting under the direction of the U.S. military when it used the burn pits for waste disposal and that the political question doctrine barred the suit from going forward.32 The plaintiffs appealed the Court of Appeals decision, but in January 2019 the U.S. Supreme Court declined to grant certiorari.33 In its denial, the Supreme Court did not take up the issue of whether the burn pits caused any medical ailments.34
Burn Pit Legislative Activity
The Supreme Court’s response to the appeal in the KBR case was met with disappointment from veterans’ groups that have been fighting for years to bring attention to health issues they believe are directly linked to burn pit exposure.35 However, Congressional attention to burn pit exposure is growing. Senator Amy Klobucher (D-MN) has referred to burn pit exposure as “our generation’s Agent Orange.”36 In February 2017, Senator Klobucher introduced the Helping Veterans Exposed to Burn Pits Act.37 The purpose of the Act was to direct the VA to establish a center for excellence dedicated to the prevention and treatment of health risks related to burn pit exposure in Iraq and Afghanistan, as well as other environmental exposures. The bill was referred to the Committee on Veterans’ Affairs, but was not signed into law.38 In the fall of 2018 Senator Klobucher and Senator Thom Tillis (R-NC) introduced new legislation based on the Helping Veterans Exposed to Burn Pits Act. While the new bill did not contain a clear directive for the center for excellence proposed by the Helping Veterans Exposed to Burn Pits Act, its provisions directed that funds allocated to the VA be used for research on toxic exposure from burn pits.39 The provisions were included in the Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act (H.R. 5895) and were signed by President Trump on September 21, 2018.40
In May 2018, Representative Raul Ruiz (D-CA) and Representative Brad Wenstrup (R-OH) created the Congressional Burn Pits Caucus with the goal of increasing awareness about burn pit exposure and advocating for health solutions for service members who may be negatively affected by health issues resulting from such exposure.41 In the same month, Representative Tulsi Gabbard (D-HI) introduced the Burn Pits Accountability Act (H.R. 5671). The bill required the Department of Defense to determine whether each member of the Armed Forces had served on a base where a burn pit had been used and whether the member had been exposed to toxic chemicals.42 The Act required the Department of Defense to share its findings with the VA. Additionally, the Act would have mandated that any service member deployed at a base where a burn pit was used be enrolled in the Registry, unless the service member opted out of enrollment. Similar to the legislation proposed by Senators Klobucher and Tillis, the Burn Pits Accountability Act had bipartisan support from Representative Brian Mast (R-FL) as well as the Iraq and Afghanistan Veterans of America (IAVA), an organization dedicated to veterans advocacy.43 The bill was introduced to the Senate in June 2018 by Senator Klobucher and referred to the Committee on Armed Services, but was not signed into law.44 In August 2018, Retired General David Petraeus wrote a letter to all members of Congress urging them to support the Burn Pits Accountability Act.45 In January 2019 Senators Klobucher and Tillis, along with Reps. Gabbard and Mast, re-introduced the Burn Pits Accountability Act. It has been referred to the Arms Services and Veterans Affairs Committees.46
Finally, in February 2019 Representative Joaquin Castro (D-TX) introduced two bills aimed at helping military veterans who may have suffered negative health consequences from burn pit exposure.47 The Family Member Access to Burn Pits Registry Act of 2019 (H.R.1001) primarily seeks to allow family members of deceased service members to participate in the Registry.48 The Burn Pit Veterans Revision Act of 2019 (H.R. 1005) seeks to address discrepancies between diagnostic codes used by the VA for obliterative bronchitis, a condition believed to be related to burn pit exposure, and disability compensation.49 Most recently, Representative Raul Ruiz (D-CA) introduced a bill requiring the Registry to be updated with an enrollee’s cause of death.50
In addition to legislation targeting burn pit exposure, the House and Senate Committees on Veterans’ Affairs have plans to review the process used to add diseases to the VA’s list of presumed service-connected illnesses.51 This review could pave the way to adding burn pit-related health issues to the list, although probably not for some time, given the complexity in determining a causal link between an illness and exposure to burn pits during deployment.52
More attention is being paid to the possible health risks and concerns potentially caused by exposure to military burn pits abroad. With a variety of burn pit-related bills in Congress, there may soon be updates to the Registry and additional funding made available for research into the possible risks associated with burn pit exposure. While litigation of this issue has produced wins and losses, given that the KBR lawsuit in federal court did not reach the issue of whether burn pit exposure actually caused the injuries alleged, we may see revived efforts to link burn pit exposure to negative health effects unfold in the courtroom. Additional research and congressional oversight will hopefully lead to more answers and relief for service members exposed to burn pits while serving overseas.
- United States Department of Veterans Affairs, Burn Pits (last updated Jan. 29, 2019), https://www.publichealth.va.gov/exposures/burnpits/index.asp; United States Department of Veterans Affairs, VA’s Airborne Hazards and Open Burn Pit Registry (last updated Mar. 4, 2019), https://www.publichealth.va.gov/exposures/burnpits/registry.asp.
- Jennifer Steinhauer, Congress Poised to Help Veterans Exposed to ‘Burn Pits’ Over Decades of War, N.Y. Times, Feb. 12, 2019, https://www.nytimes.com/2019/02/12/us/politics/veterans-burn-pits-congress.html.
- United States Army Public Health Command, Joint Base Balad Burn Pit (last visited Mar. 14, 2019), https://phc.amedd.army.mil/PHC%20Resource%20Library/Balad_Burn_Pit_JBB_FS_47-002-0214.pdf#.
- United States Department of Veterans Affairs, supra note 1.
- United States Army Public Health Command, supra note 3.
- The report does not suggest that the risk of long-term health effects from outside pollution is greater than that of burn pit exposure, only that exposure to multiple pollutants may also lead to long-term health issues. United States Army Public Health Command, supra note 3.
- United States Department of Veterans Affairs, Studies on Possible Health Effects of Burn Pits (last updated Apr. 20, 2018), https://www.publichealth.va.gov/exposures/burnpits/health-effects-studies.asp; The National Academy of Sciences, Publication: Long-Term Health Consequences of Exposure to Burn Pits in Iraq and Afghanistan (Oct. 31, 2011), http://www.nationalacademies.org/hmd/Reports/2011/Long-Term-Health-Consequences-of-Exposure-to-Burn-Pits-in-Iraq-and-Afghanistan.aspx.
- United States Department of Veterans Affairs, supra note 7.
- However, the study acknowledged that lack of information concerning pollution levels limited the study’s ability to assess the effects of burn pit emissions on pollution levels. Institute of Medicine of the National Academies, Long-Term Health Consequences of Exposure to Burn Pits in Iraq and Afghanistan (Oct. 28, 2011), http://nationalacademies.org/hmd/~/media/Files/Report%20Files/2011/Long-Term-Health-Consequences-of-Exposure-to-Burn-Pits-in-Iraq-and-Afghanistan/VA%20Briefing%2010-28-2011.pdf.
- The National Academy of Sciences, supra note 7.
- Veterans Affairs Department, Initial Research on the Long-Term Health Consequences of Exposure to Burn Pits in Iraq and Afghanistan, Federal Register (Feb. 4, 2013), https://www.federalregister.gov/documents/2013/02/04/2013-02264/initial-research-on-the-long-term-health-consequences-of-exposure-to-burn-pits-in-iraq-and.
- Steinhauer, supra note 2. Many of the health risks alleged to be caused by burn pit exposure are not included on the VA’s list of presumed service-connected illnesses, making it impossible for veterans to receive disability compensation for their illnesses. 38 C.F.R. § 3.309, available at https://www.law.cornell.edu/cfr/text/38/3.309; United States Department of Veterans Affairs, Disabilities That Appear within 1 Year after Discharge (last accessed Apr. 16, 2019), https://www.va.gov/disability/eligibility/illnesses-within-one-year-of-discharge/.
- The Burn Pits Registry Act was included in the Dignified Burial and Other Veterans' Benefits Improvement Act of 2012, which was signed into law on January 10, 2013. S.3202 - Dignified Burial and Other Veterans' Benefits Improvement Act of 2012 (last accessed Apr. 10, 2019), https://www.congress.gov/bill/112th-congress/senate-bill/3202/text; Udall-Corker Burn Pit Registry Signed Into Law, Press Releases (Jan. 10, 2013), https://www.tomudall.senate.gov/news/press-releases/udall-corker-burn-pit-registry-signed-into-law; The National Academy of Sciences, Assessment of the Department of Veterans Affairs Airborne Hazards and Open Burn Pit Registry (Feb. 2017), http://www.nationalacademies.org/hmd/~/media/Files/Report%20Files/2017/Burn-Pits-highlights.pdf.
- United States Department of Veterans Affairs, 10 Things to Know About Burn Pits 1 (Mar. 2016), https://www.publichealth.va.gov/docs/exposures/ten-things-to-know-fact-sheet.pdf#.
- United States Department of Veterans Affairs, About the Registry (last updated July 20, 2017), https://veteran.mobilehealth.va.gov/AHBurnPitRegistry/index.html#page/about.
- United States Department of Veterans Affairs, Registry for Veterans and Service Members, Public Health (last visited Mar. 11, 2019), https://www.publichealth.va.gov/exposures/burnpits/registry.asp.
- United States Department of Veterans Affairs, Airborne Hazards and Open Burn Pit Registry (last visited Mar. 11, 2019), https://veteran.mobilehealth.va.gov/AHBurnPitRegistry/#page/home.
- United States Department of Veterans Affairs, Airborne Hazards & Open Burn Pit Registry (Sept. 2014), https://veteran.mobilehealth.va.gov/AHBurnPitRegistry/docs/burn-pit-registry-fact-sheet.pdf; United States Department of Veterans Affairs, supra note 14, at 2.
- The National Academy of Sciences, supra note 13.
- The National Academy of Sciences, Publication: Assessment of the Department of Veterans Affairs Airborne Hazards and Open Burn Pit Registry (last updated Feb. 5, 2019), http://www.nationalacademies.org/hmd/reports/2017/assessment-of-the-va-airborne-hazards-and-open-burn-pit-registry.aspx; The National Academy of Sciences, supra note 13.
- The National Academy of Sciences, supra note 13.
- The full list of recommendations can be found in the National Academy’s Highlight Report. The National Academy of Sciences, supra note 13.
- United States Department of Veterans Affairs, supra note 7.
- Veronica M. Landry v. Service Employees International, Inc. and Insurance Company of the State of Pennsylvania, Case No. 2017-LDA-00210/00211 (Dep’t of Labor Jan. 11, 2018), available at https://www.oalj.dol.gov/Decisions/ALJ/LDA/2017/LANDRY_VERONICA_v_SERVICE_EMPLOYEES_IN_2017LDA00211_(JAN_11_2018)_152555_CADEC_PD.PDF; Perry Chiaramonte, Court determines military burn pits caused lung disease in service members, Fox News Investigates (Feb. 15, 2018), https://www.foxnews.com/world/court-determines-military-burn-pits-caused-lung-disease-in-service-members.
- Editorial, The promise of health care for Iraq veterans, The Boston Globe (Feb. 24, 2018), https://www.bostonglobe.com/opinion/editorials/2018/02/24/the-promise-health-care-for-iraq-veterans/kaHFDHbRE0xVcgG2l2heBI/story.html; Nicole Wetsman, Garbage Burn Pits From Iraq Are Causing Lung Disease in Vets, The Daily Beast (Aug. 2, 2018), https://www.thedailybeast.com/garbage-burn-pits-from-iraq-are-causing-lung-disease-in-vets.
- Chiaramonte, supra note 24.
- The plaintiff in the Department of Labor case brought claims based on the Longshore Harbor Workers’ Compensation Act, while the KBR case in the Maryland federal court involved consolidated claims based in tort and contract law. Veronica M. Landry v. Service Employees International, Inc. and Insurance Company of the State of Pennsylvania, supra note 24, at 2; In Re: KBR, Inc., Burn Pit Litigation, 268 F.Supp.3d 778, 780 (D. Md. 2017), available at https://www.leagle.com/decision/infdco20170720949.
- In re: KBR, INC., Burn Pit Litigation, No. 17-1960 (4th Cir. June 20, 2018), available at http://www.ca4.uscourts.gov/opinions/171960.P.pdf.
- In Re: KBR, Inc., Burn Pit Litigation, supra note 28, at 804, 813.
- In Re: KBR, Inc., Burn Pit Litigation, supra note 28, at 810, 813.
- In re: KBR, Inc., Burn Pit Litigation, supra note 29, at 13, 15; Quil Lawrence, Veterans Claiming Illness From Burn Pits Lose Court Fight, NPR (Jan. 16, 2019), https://www.npr.org/2019/01/16/685657005/veterans-claiming-illness-from-burn-pits-lose-court-fight.
- Lawrence, supra note 32.
- Todd South, Supreme Court rejects appeal from veterans in burn pit lawsuit against KBR, Halliburton, Military Times (Jan. 14, 2019), https://www.militarytimes.com/news/your-military/2019/01/14/supreme-court-rejects-appeal-from-veterans-in-burn-pit-lawsuit-against-kbr-halliburton/; Lawrence, supra note 32.
- The case was a consolidation of 63 different complaints representing hundreds of service members; thus, the decision affected a great number of plaintiffs seeking compensation for their injuries. In re: KBR, Inc., Burn Pit Litigation, supra note 29, at 14.
- Steinhauer, supra note 2.
- S.319 - Helping Veterans Exposed to Burn Pits Act (last accessed Mar. 25, 2019), https://www.congress.gov/bill/115th-congress/senate-bill/319.
- All Information (Except Text) for S.319 - Helping Veterans Exposed to Burn Pits Act (last accessed Mar. 25, 2019), https://www.congress.gov/bill/115th-congress/senate-bill/319/all-info.
- Klobuchar, Tillis Bipartisan Legislation to Help Veterans Exposed to Toxic Burn Pits Headed to President’s Desk to Be Signed Into Law, News Releases (Sept. 13, 2018), https://www.klobuchar.senate.gov/public/index.cfm/2018/9/klobuchar-tillis-bipartisan-legislation-to-help-veterans-exposed-to-toxic-burn-pits-headed-to-president-s-desk-to-be-signed-into-law; Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019 Title 2 (2019), available at https://congress.gov/bill/115th-congress/house-bill/5895/text.
- President Donald J. Trump Signs H.R. 5895 into Law, Statements and Releases (Sept. 21, 2018), https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-signs-h-r-5895-law/.
- Rep. Wenstrup, Rep. Ruiz Launch Bipartisan Congressional Burn Pits Caucus to Raise Awareness and Find Solutions, Updates (May 1, 2018), https://wenstrup.house.gov/updates/documentsingle.aspx?DocumentID=400283.
- H.R. 5671 – Burn Pits Accountability Act, Summary (last accessed Mar. 26, 2019), https://www.congress.gov/bill/115th-congress/house-bill/5671?r=3.
- PHOTOS & VIDEO: Reps. Gabbard and Mast, IAVA Lead Bipartisan Bill to Evaluate US Troops Exposure to Toxic Burn Pits, Press Releases (May 17, 2018), https://gabbard.house.gov/news/press-releases/photos-video-reps-gabbard-and-mast-iava-lead-bipartisan-bill-evaluate-us-troops; About Us, IAVA (last accessed Mar. 26, 2019), https://iava.org/about/.
- S.3181 - Burn Pits Accountability Act, Summary (last accessed Mar. 26, 2019), https://www.congress.gov/bill/115th-congress/senate-bill/3181.
- Travis Horr, GEN Petraeus Urges Congress to Support Burn Pits Accountability Act, IAVA (Aug. 21, 2018), https://iava.org/blogs/gen-petraeus-urges-congress-to-support-burn-pits-accountability-act/.
- S.3181 - Burn Pits Accountability Act, Actions (last accessed Apr. 15, 2019), https://www.congress.gov/bill/115th-congress/senate-bill/3181/all-actions; H.R.5671 - Burn Pits Accountability Act, Actions (last accessed Apr. 15, 2019), https://www.congress.gov/bill/115th-congress/house-bill/5671/all-actions; Urgent Burn Pits Legislation Re-Introduced in 116th Congress, IAVA (Jan. 17, 2019), https://iava.org/press-release/urgent-burn-pits-legislation-re-introduced-in-116th-congress/.
- Castro Introduces Two Measures to Help Veterans Affected by Burn Pits, Press Releases (Feb. 6, 2019), https://castro.house.gov/media-center/press-releases/castro-introduces-two-measures-help-veterans-affected-burn-pits.
- The bill was introduced in the House and referred to the House Committee on Veterans’ Affairs on February 6, 2019, and referred to the Subcommittee on Health on March 1, 2019. H.R.1001 - Family Member Access to Burn Pit Registry Act, Text (last accessed Mar. 26, 2019), https://www.congress.gov/bill/116th-congress/house-bill/1001/text.
- The bill was introduced in the House and referred to the House Committee on Veterans’ Affairs on February 6, 2019, and referred to the Subcommittee on Disability Assistance and Memorial Affairs on March 1, 2019. H.R.1005 - Burn Pit Veterans Revision Act, Text (last accessed Mar. 26, 2019), https://www.congress.gov/bill/116th-congress/house-bill/1005/text.
- The bill passed the House and was read in the Senate for the second time on March 7, 2019. Dr. Ruiz Announces Progress on Burn Pits Bill Honoring Fallen Veteran Jennifer Kepner, Press Releases (Mar. 1, 2019), https://ruiz.house.gov/media-center/press-releases/dr-ruiz-announces-progress-burn-pits-bill-honoring-fallen-veteran; H.R.1381 - Burn Pit Registry Enhancement Act, Text (last accessed Mar. 26, 2019), https://www.congress.gov/bill/116th-congress/house-bill/1381/text.
- Steinhauer, supra note 2.
- Most recently, an updated study report was released by the National Academy of Sciences concerning a possible link between exposure to Agent Orange and the development of hypertension. The National Academy of Sciences, Veterans and Agent Orange Update 11 (2018) (Nov. 2018), https://www.nap.edu/resource/25137/111318_VAO_2018_highlights.pdf; Veterans of Foreign Affairs, National Academies Link Hypertension, MGUS to Agent Orange Exposure (Nov. 15, 2018), https://www.vfw.org/media-and-events/latest-releases/archives/2018/11/national-academies-link-hypertension-mgus-to-agent-orange-exposure.