Attorneys attempt to prove McClellan veteran chemical exposure

·10 min read

Jun. 26—After the federal government signed Fort McClellan's death certificate in 1995, a Florida-based engineering firm interviewed a troupe of veterans and civilian contractors who'd either served or worked at Anniston's Army post.

They even spoke with residents who lived nearby. Interviewers sought mundane recollections and specific facts: what was stored where, what happened there, did that event take place.

Those recorded memories, some of which are unsubstantiated, offered a unique glimpse into Fort McClellan's environmental legacy.

Soldiers during World II tossed hand grenades into creeks to harvest fish, a respondent recalled. Another remembered fill dirt used on the tee boxes at the post golf course occasionally included discarded bullets. A large spill of a radiological isotope used in chemical-school training happened around 1968, a veteran remembered.

That wasn't all.

Throughout more than a hundred pages of documented recollections, veterans, civilians and residents told representatives from Environmental Science & Engineering commonplace details of military life. But they also saw goats killed during chemical training exercises wrapped in tarps and hurriedly buried in landfills; soldiers relocating the post canine kennel after dogs burned their paws on spilled mustard agent; "German gas and nerve agent scientists" developing chemical weapons while imprisoned in Anniston; and a leaking, one-gallon canister of mustard agent that forced several post roads to be closed and vigorously decontaminated.

The U.S. Army Environmental Center hired the Florida firm to document sitewide environmental conditions at Fort McClellan in advance of the imminent closure of its main post in 1999. The Army's goal: determine what cleanup needed prioritization. Today, the 1,030-page "Final Environmental Baseline Survey," published in January 1998, is an exhaustive record of empirical facts and unproven recollections.

It's also key to the efforts of some Fort McClellan veterans to convince the U.S. Department of Veterans' Affairs that they were poisoned while in Anniston. More importantly, law firms are wielding it as a weapon when they assist veterans with their VA disability claims.

"When we get a veteran on a Fort McClellan case, we say, 'Hey, it's going to be years, and I'm talking four or five years to get it up to the board and hopefully win there,'" said Matthew Hill, managing partner of Hill & Ponton, a Florida-based disability law firm that specializes in military claims. "But we feel like we finally found the evidence we need to prove the science, and the VA has nothing to rebut that except denials."

On its website, the VA admits that personnel "may have been exposed to one or more of several toxic materials, likely at low levels" at Fort McClellan, but it does not consider Anniston service time — either as a permanent post or as a trainee — as a basis for a disability claim. One aim of the recently filed Honoring Our Promise To Address Comprehensive Toxics Act of 2021 in Congress is to require the VA to document Fort McClellan veterans' health claims, which could open a pathway to medical treatment.

Without a health registry or a VA presumption of toxic exposure for Fort McClellan, soldiers claiming Anniston-related health issues are trying to navigate the department's stringent claims and appeals process. In an email, a VA spokesman told The Star that because there is no registry, Fort McClellan disability claims are handled on a case-by-case basis and not tracked by location — making the VA unable to know how many Fort McClellan veterans have filed claims or, likewise, how many have had their claims approved.

"It would be extraordinarily difficult to try to pull and separate out data from thousands of records indicating the location(s) of these claims," the VA's Randal Noller wrote.

That difficulty isn't keeping disability attorneys from taking veterans' claims to the VA.

"We push it, we keep on going, and if we have evidence and they don't, the VA doesn't win on just 'Because I said so,'" Hill said.

Attorneys and the Fort McClellan veterans

Fort McClellan's 81-year resume included the training of infantry and artillery units as well as a number of diverse missions: the Women's Army Corps, the U.S. Army Chemical Center and School, the Department of Defense Polygraph Institute and the Military Police School. That variety, along with its proximity to the PCB and lead industrial-pollution sites in western Anniston, has provided fuel for the common online refrain that past Fort McClellan duty is intertwined with failing health.

Hill & Ponton is but one of the firms that either specialize in veteran disability claims or actively seek Fort McClellan veterans as clients.

In Providence, R.I., Chisholm, Chisholm & Kilpatrick includes several Fort McClellan-related videos on its website. The Nebraska-based Berry Law firm specializes in veterans' issues and features a Fort McClellan page on its website. Since 2015, the Mobile firm of Gardberg & Kemmerly's website has included a blog post that tells veterans that despite the VA's lack of presumption regarding Fort McClellan, "If you are a veteran who was stationed at Fort McClellan, you should know that you may have been exposed to these dangerous materials." Bosley & Bratch, a Florida firm, features a similar blog post on its site.

Legal advertisements targeting Fort McClellan veterans are allowed in large part because of a 1977 Supreme Court ruling (Bates v. State Bar of Arizona) that upheld law firms' right to advertise their services. That ruling turned the practice of law into the business of law, said Sam Monk, the longtime circuit and district court judge who now is legal counsel for Jacksonville State University.

"It used to be that lawyers did not advertise," Monk said. "The state bars generally prohibited it. But then the U.S. Supreme Court — in what I think is a ruling as destructive as Citizens United was — said, no, (legal advertising) is protected, commercial free speech."

Notable on several firms' websites are inaccuracies or mischaracterizations regarding Fort McClellan and the city of Anniston. Until recently, one site included a video in which an attorney repeatedly claimed the Environmental Protection Agency shut down Fort McClellan. (A Base Realignment and Closure committee recommendation closed Anniston's post, not the EPA.) Another firm's site claims that "Monsanto settled a lawsuit with the town of Anniston, Alabama, for $700 million," which didn't happen. Monsanto and its spinoff, Solutia, settled not with the city but with 20,000 current and former Anniston residents.

Another common claim on the sites mentions the dumping of "thousands of gallons" of Agent Orange at Fort McClellan, which a McClellan Development Authority representative vehemently denies and the VA website does not substantiate.

However, the 1998 baseline study does include a 1977 U.S. Army Toxic and Hazardous Materials Agency report that lists two Agent Orange chemical ingredients being used as herbicides at Fort McClellan from 1974 to 1976.

Monk, an Army veteran who served in the Vietnam War, would not comment on law firms that advertise for Fort McClellan veterans' business, though in a general sense he did characterize those that advertise for clients in injury and disability cases as "assembly line-type legal practice."

Nevertheless, firms that assist the injured often provide a valuable service "when government fails to regulate bad conduct by criminal laws or regulatory enforcement" through civil courts, Monk said. That process "does serve society by not only compensating those injured but deterring injurious conduct in the future."

Because the Supreme Court has ruled that in most cases military personnel cannot sue their service branch for damages, VA disability claims often are veterans' best option.

For law firms seeking veterans as clients, advertising is a necessary requirement.

"It's a business," Monk said.

Empirical data and the skeptics

The crux of this argument — veterans against the government — pivots on the empirical, the provable. The VA believes toxic groundwater sickened personnel at Marine Corps Base Camp Lejeune in North Carolina and presumes exposure with duty there. It does not believe toxic exposures poisoned veterans at Fort McClellan.

Attorneys such as Hill are convinced the VA is wrong. "As you very well know," he told The Star, "there are so many problems that are at that base." His concerns, he said, include the chemical school, the western Anniston environmental pollution, and the use of herbicides and pesticides on the main post and Pelham Range.

In fact, several firms that court Fort McClellan veterans believe herbicides and pesticides were excessively used on Anniston's main post and may have exposed personnel to high levels of toxic substances.

The 1998 environmental baseline study did document widespread use of chemicals against roaches, ants and wasps and as a weed-control device throughout the post.

One of Fort McClellan's civilian contractors told the study's authors that "pesticides were used on all of Main Post and Pelham Range," and the forestry staff used decontamination trucks to apply them in liquid form. Roundup was sprayed along roadways from a 300-gallon tractor-mounted tank, he recalled. (Bayer, which absorbed Monsanto in 2018, has since settled with thousands of litigants in Roundup-related disability cases.) Another civilian contractor recalled a 1980s-era mishap that spilled herbicides into Cane Creek and killed fish.

However, the study also includes data and interviews that appear to document reasonable use of pesticides and herbicides. Bob Safay, an entomologist at Fort McClellan who supervised pesticide use there from 1981 to 1983, reported that pesticides were used inside buildings against "roaches and other pests" and most were stored appropriately in specific buildings. Personnel who applied the chemicals were licensed per military and state guidelines, he said. The civilian contractor who recalled the fish kill also stated that there was "no facility-wide application of any chemical" at the post.

"Mr. Safay," the survey said, "does not believe that facility-wide application of pesticides has caused contamination at Fort McClellan."

Today, the Alabama Department of Environmental Management and other assorted agencies consider what is now called "McClellan" safe for civilian redevelopment, though unexploded ordnance remains in the Mountain Longleaf National Wildlife Refuge. Anniston's former Army post is now home to thousands of workers, residents, retirees, students and parks-and-recreation athletes.

The pre-closure 1998 baseline study wasn't designed to be a continually updated document, says Jason Odom, legal counsel for the McClellan Development Authority. Instead, it was a singular picture in time, a snapshot of Anniston's post before it closed.

"The Army did its baseline study to determine what cleanup needed to be done at McClellan," Odom said, "whether it was materials of explosive concern, whether it was lead at ranges, whether it was groundwater cleanup, and that is how they determined the money that was put aside ... that the MDA has used to clean up the main post areas.

"They did not give us money to conduct never-ending or annual sitewide surveys. They gave us money to do the cleanup, and that is what the MDA has spent the money on."

Attorneys who cite the lack of a post-closure baseline study may not be aware of the Fort McClellan Information Repository, which is available online and at Jacksonville State University's McClellan Center Library. The repository includes granular, project-specific documentation of the MDA's cleanup activities at McClellan and is updated monthly.

Odom, who served in the Army's Judge Advocate General's Corps, does not believe the overuse of herbicides and pesticides created a lingering toxic-exposure crisis at Fort McClellan. Why? Because, he said, of "all of the cleanup work that I've seen, the lack of evidence that I've seen of the kind of contamination that is being complained of by these outside agencies. I'm confident enough of it that I live there."

The VA, meanwhile, is resolute: Fort McClellan veterans did not suffer from widespread, elevated levels of toxic exposure. Nevertheless, the VA's Noller wrote in an email, the department "continues to encourage any veteran who believes he or she was subject to toxic exposure to file a claim."

Phillip Tutor — ptutor@annistonstar.com — is a Star columnist. Follow him at Twitter.com/PTutor_Star.

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