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Trial to determine if ATK sold U.S. faulty flares developed in Utah

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Kendall Dye holds a faulty igniter for a flare that his former employer, ATK, produced for the government for use by the military in combat.

Kendall Dye holds a faulty igniter for a flare that his former employer, ATK, produced for the government for use by the military in combat.

Tom Smart, Deseret News

NORTH OGDEN — Kendall Dye remembers precisely when he found the e-mail that caused him to question his employer, ATK Thiokol, the aerospace and military contracting giant. He was working at home on a Saturday morning in 2005, poring over dozens of files.

The e-mail showed that ATK was warned years earlier that a military flare it produced might endanger American soldiers using it.

"I thought, oh my God," Dye recalls. "I couldn't believe that we knew." As far as he could tell, the company had ignored the warning.

At the time, Dye, an engineer at ATK, was investigating the safety of flares that his company sold to the U.S. Army and Air Force. What he found led him to file a lawsuit contending that ATK cheated taxpayers by selling fragile flares and, by doing so, knowingly put soldiers at risk.

The flares aren't the small, hand-held versions seen in war movies, but 3-foot-long, 36-pound aluminum tubes packed with propellant that burns at more than 3,600 degrees Fahrenheit, hot enough to melt steel.

When attached to parachutes, the tubes are released from the air and burn for several minutes, bathing a square mile of battlefield in bright or infrared light.

They are essential tools in the U.S. arsenal. Early versions of the devices were used in Vietnam, and they have been used on tens of thousands of combat missions since then, according to ATK.

They are so powerful that if one were to ignite accidentally — which, according to Dye, was possible — it could set off nearby ordnance, burn a hole in the hull of a warship or melt through the skin of an airplane high in the sky, according to his lawyers.

At a time when the country is fighting two wars and has more than 180,000 troops deployed in Iraq and Afghanistan, Dye's contentions may raise anew questions about the reliability of military contractors and the safety of their products.

Lawyers for ATK, which was acquired by Alliant Techsystems of Eden Prairie, Minn., in 2001 and is now called ATK Launch Systems, contend that the company did nothing wrong. They say that the flares have injured no one — an assertion no one has disproved. The ATK flares have also been redesigned since Dye first raised his concerns.

"ATK is proud of the fact that we provide the nation's armed forces with systems that consistently perform exactly to design in the battlefield," the company says in a statement. Although the Justice Department has signed on as a plaintiff in Dye's lawsuit — which seeks to recover tens of millions of dollars paid for thousands upon thousands of flares — ATK says the lawsuit is baseless.

"ATK has determined the allegations made by the Department of Justice ... to be wholly without merit," the company says.

But Dye has a different opinion. "Ethics and values got thrown out the window when there was a lot of money at stake," he says.

Should the government win at trial, it may be entitled to recover three times its damages; Dye's lawyers estimate that the total could reach well into the hundreds of millions of dollars.

That the government chose to join Dye's lawsuit — the Justice Department is not obligated to take up whistle-blower claims — suggests that the case is a strong one, said Danielle Brian, executive director of the Project on Government Oversight, a Washington watchdog group.

"It means that the government believes that the company knew that they were providing faulty products," Brian said. "This isn't a mistake. It's willfully making money off endangering soldiers. I can't imagine anything worse."

For decades, ATK has sold versions of its flares not only to the U.S. government, but also to the armed forces of other countries, including Canada, Italy, Colombia and Spain. The devices cost at least $700 each, and contracts for bulk purchases totaled millions of dollars.

In the late 1990s, military buyers complained that too often, the flares failed to ignite. ATK, which has a huge complex in northern Utah, permitted a team of engineering students at Utah State University to design an improved igniter. (The relationship developed after the university approached ATK seeking real-world projects for its students; the company, like others in the industry, often joined with universities to conduct research.)

Because the ignition mechanism was a relatively simple, mechanical device that used no proprietary technology, ATK officials thought that the project offered a low-risk learning experience.

The students, under the supervision of their professors, came up with a system that used the force of a flare's opening parachute to snap a polycarbonate plastic bar, about half an inch long and a tenth of an inch thick. When the plastic broke, it activated a series of reactions that ignited the propellant. The students never tested the new system to see whether the flares might ignite if they were dropped or accidentally jostled; they couldn't conduct such a test because they did not have access to complete, live flares. Specifications called for the flares to be able to withstand a fall of 10 feet without igniting.

ATK didn't perform those so-called drop tests, either. The company contends that the flares had been used for a long time without any problems, and so neither the company nor its customers were concerned about accidental ignition. The company began shipping flares with the new igniter in 2000, according to government court filings.

The Air Force tested the flares for reliability at Eglin Air Force Base in Florida in June 2000, launching them from warplanes. The flares ignited 97 percent of the time, exceeding the Air Force's goal. But the Air Force did not perform tests to see whether the flares might accidentally ignite if dropped.

Citing pending litigation, an Air Force spokesman declined to comment.

Lawyers for ATK contend that the armed forces waived tests that would have determined whether the flares could meet the 10-foot standard. They have further argued that without the results of those tests, the government could not claim that the flares were flawed.

The first report of a potential problem surfaced in 2005, after the U.S. government and the armed forces of other countries had been buying the redesigned flares for five years. The Navy, evaluating whether to buy the devices, simulated accidentally dropping the flares, letting them fall from 40 feet. They ignited on hitting the ground. Flares also ignited after falling 30 feet and 20 feet, the Navy found.

Yet it was still possible that the flares met the 10-foot standard even if they did not meet the Navy's more stringent 40-foot requirement. It was up to Dye, who had recently been named manager of ATK's flare program in Utah, to figure out what was going on.

Dye decided to test the flares directly; the company says he never sought approval to conduct the tests and didn't document the results properly.

According to court documents, on Nov. 9, 2005, he and several colleagues took five flares to a testing site in ATK's complex.

They dropped a flare from 10 feet. It ignited.

They dropped a flare from five feet. It ignited, too.

By the end of the day, Dye and a safety engineer had warned employees to keep clear of the flares. Production stopped.

That afternoon, the company convened a "war room" of about a dozen experts to investigate the flares, Dye said, and he was part of the team. No formal notice was given to buyers of the flares; ATK asserts that a company official informally advised an Air Force representative.

No one, Dye said, wanted him to perform any more tests. In his view, there were simple questions that ATK had to answer to identify the extent of the problem. For starters, if the company's contracts for years had required flares to survive a 10-foot drop test, he said, "Did we do the test or did we not do the test?"

No one, he said, seemed to know. Two days after his drop tests, Dye asked a secretary for the keys to the office where copies of contracts were kept. He took the files covering the period shortly before and after the introduction of the new igniter and brought them to the windowless conference room where the team was working.

Dye says he remembered saying, "We need to get to the bottom of what happened."

At the end of the day, he carried the files to his pickup for the 45-minute drive from the desert to his house, and, that night, he started reading.

Dye said he grew increasingly concerned that the company was not going to fix flares equipped with the igniter he had tested. He decided to find a way to tell the government what he had found, and, on the Web, he learned of the False Claims Act.

That federal law permits private individuals to sue on behalf of the United States if they believe that they have inside knowledge of fraud against the government. At first, the lawsuits are kept secret, under court seal, while investigators look into the accusations and decide whether to join the case. If the government intervenes and recovers money, the whistleblower can receive up to 30 percent of the amount.

It is not clear how many of the thousands of flares at issue in the lawsuit are still in use; the U.S. Army stopped using them, according to Justice Department lawyers, and the Air Force restricted them to "emergency combat use." Lawyers for Dye say the government has mothballed at least 40,000 flares.

So far, ATK has retrofitted igniters in 14 flares that were sold to Chile and about 5,000 sold to Canada, according to a spokesman. And the company has offered to retrofit at cost the igniters in tens of thousands of flares sold to the U.S. government. The trial is set to begin in 2010.