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Fort Detrick asks judge to dismiss contamination lawsuit

By SYLVIA CARIGNAN | The Frederick News-Post, Md. | Published: March 2, 2016

FREDERICK, Md. (Tribune News Service) — The Army is asking that complaints by current and former Frederick residents who sued Fort Detrick for wrongful death and suffering be denied.

Frederick residents and Randy White’s family, along with members of the Kristen Renee Foundation, filed a class-action lawsuit in August claiming that Fort Detrick’s failure to clean up contaminated soil and groundwater caused the illnesses and deaths of their relatives.

The plaintiffs are seeking $750 million for wrongful death and pain and suffering. U.S. Attorney Rod Rosenstein, representing the Army's interests, asked Monday that the case be dismissed.

In online court documents, Rosenstein argued that the government has no particular duty to respond to hazardous substances and the Army can use its own judgment to decide whether to clean up. 

Decades ago, the Army dumped sludge from its former decontamination plants, ashes from its incinerators, potentially radioactive sludge from a sewage disposal plant, drums of the industrial solvent trichloroethylene, chemical materials, biological materials and herbicides at Area B.

The area is a Fort Detrick property roughly bordered by Shookstown Road, Rocky Springs Road and Kemp Lane.

The hazardous substances were likely buried at Area B in unlined pits five or six decades ago. Rosenstein argued that the Army made a sensible decision at the time to bury the substances and continues to make sensible decisions about cleaning them up.

In the early 2000s, Fort Detrick spent millions to dig out the contents of one of those pits. But further "intrusive" actions were considered too expensive because of the cost of ensuring public safety, "estimated at almost a billion dollars," Rosenstein argued.

In 2008, the Army capped the tops of the remaining pits for a price of $5.5 million. Local residents are still concerned that the bottoms and sides of the pits continue to drain toxins into the groundwater.

At each meeting of the Fort Detrick Restoration Advisory Board, when the Army briefs local stakeholders on its current cleanup activities, residents have been frustrated at the decades-long process of finding the remaining toxins on Area B. 

The Army continues to investigate the size and location of a plume of chemicals that may have spread through groundwater from the military property.

Some in the Frederick community believe that many cancer cases in the residential neighborhoods around Fort Detrick were caused by that contamination, though the state has been unable to verify the existence of a cancer cluster.

Randy White, founder of the Kristen Renee Foundation, said many people who learned about the cancer cluster possibility in a Feb. 14 News-Post story are now contacting the foundation about their experiences with cancer and terminal illness related to Fort Detrick.

Because of the recent influx of attention to the issue, White said, he is unsure of the number of people currently involved in the class-action lawsuit, but estimated it to be close to 200.

In the past two months, 6,300 people have signed a petition asking Maryland's senators to take another look at a possible cluster.

Rosenstein argued in court documents that local residents' claims of suffering were vague, and "allege unspecified acts of negligence by Fort Detrick that caused unspecified injuries and occurred at unspecified times."

If dismissed, this case would follow a long pattern of denied complaints. 

A developer’s $37 million lawsuit against Fort Detrick was dismissed in January.

The developer, Waverley View Investors LLC, owns a property totaling 92.8 acres near the installation. Its lawyers argued that Fort Detrick was responsible for cleaning up contaminated groundwater that had flowed under their property.

Rosenstein is asking the chief judge who dismissed that case to do the same with this case. 

Current and former local residents also filed more than 100 claims of wrongful deaths and illnesses caused by Fort Detrick, seeking a total of $3.8 billion.

The garrison denied those claims last March.

Rosenstein is arguing that Fort Detrick has sovereign immunity from these types of lawsuits, and White said that's not a surprise.

"Fort Detrick can huff and puff, and they can say that they’re going to deny every lawsuit," White said. "Our legal team is sharp as they come. We're going on five years now of fighting this, but ... we're not going to stop."

©2016 The Frederick News-Post (Frederick, Md.)
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