Things You Didn't Know About But Were Afraid To Ask About Trusting Your Car To The Man Who Wears The Star Taking Into Account Philip Morris v. Emerson
A pal of mine had a private car parked on a siding in Ringoes, New Jersey. There was a low level mob type of the kind in which New Jersey abounds, who rented a building in back of the maintenance barn for the railroad, and he ostensibly was in the business of relining hopper cars, but his real business was getting rid of hazardous waste for people who had a problem with disposal.
My friend, at the time a lab technician for Tenneco, was paranoid as hell about hazardous chemistry because the Tenneco plant he worked at used lots of monomer vinyl chloride, which is nasty stuff, known to cause liver cancer, and highly flammable as well. The vapors, being heavier than air would pool in low places and blow up every so often when something would ignite them-as happened one time in the break room when the refrigerator started up. Another time, so he told me, some of the stuff ignited in a steel vessel which promptly tore itself up by the roots and launched itself over a building and came crashing down in the parking lot a couple of hundred feet away. But I digress.
So my pal sneaks back to the A-Line Industries building and takes some samples. Turns out it was nothing but TiO2-harmless stuff used as the pigment in landlord white paint base. But one day he shows up and A-Line is gone, lock, stock, and nameless 55 gallon drums filled with who knows what. And then this story eventually came out.
The following is a recital of the facts in Philip Morris v. Emerson.
Here's the facts recital from Emerson.
[***16] From the early 1960's to 1969, Texaco, Inc. (Texaco) conducted experiments on rocket fuels and filaments in a laboratory [*388] facility it owned in Richmond, using a liquid known as pentaborane. Pentaborane is highly toxic to humans; a pharmacologist who had investigated the characteristics and effects of pentaborane for the United States Air Force, described it as a "supertoxic" chemical. Brief exposure to five parts of pentaborane to a billion parts of air is fatal. Pentaborane is 2,000 times as deadly as hydrogen cyanide, the gas commonly used for execution in gas chambers. A dose of pentaborane sufficient to cause death is scarcely more than a dose which causes no harm. Indeed, if the odor of the compound is sufficiently strong to be detected by humans, minimal exposure to the gas is fatal.
Pentaborane is highly reactive to oxygen and will ignite when it reaches a concentration of about 2% in air. Both the liquid and the vapors from pentaborane cause serious bodily injury. Any person working with pentaborane gas should either use chemical hoods capable of isolating the pentaborane gas or wear a self-contained breathing apparatus. Taking special precautions, the United [***17] States government and its contractors have used and disposed of large quantities of pentaborane in its space rocket program without injury.
[**272] Texaco obtained pentaborane in small, pressurized cylinders approximately eight to 12 inches long and two to three inches in diameter. When pentaborane is under pressure, special care must be taken to contain the liquid chemical to prevent it from vaporizing rapidly into the atmosphere. Texaco buried chemicals in 19 pressurized cylinders, at least three of which contained pentaborane, with a number of other chemicals in a pit near one of its Richmond laboratory buildings. Burial of such cylinders is considered a dangerous practice because there is a risk that the cylinders will deteriorate and leak, allowing the contents to escape, and because the cylinders later may be dug up and the contents accidentally released by persons attempting to dispose of them.
Texaco sold its Richmond facility to Philip Morris Incorporated (Philip Morris ) in 1978, but failed to disclose to Philip Morris that it had buried chemicals in a number of pits on the property. Some time later, Texaco advised Philip Morris of the chemical burials, but did not reveal that [***18] the pits contained pressurized cylinders.
In August of 1980, when Philip Morris began constructing another building on the property, its excavating contractor uncovered [*389] chemical waste, including the 19 cylinders, in the burial pits. After the cylinders were removed from the pits, they were taken to the laboratories of Environmental Laboratories, Inc. (ELI) at another location in the Richmond area. When the cylinders were cleaned, many of them were found to be corroded. Thirteen cylinders had no labels identifying the contents, but six were marked as follows: two were labeled B5H9 (the chemical formula for pentaborane), two were labeled BCL3 (the chemical formula for borane trichloride), one was labeled 1-defluoro-2, 2-dichloroethylene, and one was labeled fluorine. The cylinders were assumed to contain chemicals under pressure. All chemical experts in these cases agreed that a cylinder with unknown contents should be treated as if it contained the most dangerous chemicals known.
When Philip Morris contacted Texaco for assistance in identifying and disposing of these cylinders, Texaco researched its files and gave Philip Morris the minimal information it found, but [***19] refused to assist further unless Philip Morris would execute "a hold-harmless agreement and give recognition that Texaco [was] not legally obligated to perform such service." Philip Morris did not execute such an agreement. Except for giving some subsequent information on the contents of some of the cylinders to one of Philip Morris ' contractors who was attempting to deal with the cylinders, Texaco did nothing further to assist in identifying or disposing of the chemicals. Texaco never notified Philip Morris, or any of its contractors, that any cylinder contained pentaborane.
For 15 months after their discovery, the cylinders remained at ELI while Philip Morris and two of the companies it hired to remove the chemicals from its premises unsuccessfully attempted to find a contractor willing to dispose of them. None of the disposal firms would accept the job without knowing the contents of the cylinders because federal safety regulations require the disposal firms to obtain this information before transporting toxic chemicals to another location for disposal. The contents of the pressurized cylinders could not be ascertained without extracting a small sample from each cylinder [***20] under controlled conditions for testing. Because the valves on many of the cylinders were corroded, it was feared that the valves would not close after they had been opened for sampling.
To avoid transporting the cylinders, a member of one of the waste disposal firms suggested disposal by exploding the contents [*390] on the premises of Philip Morris. Although this is an accepted method of disposal, Philip Morris rejected the proposal because it considered its property to be an unsatisfactory location for exploding the cylinders. Philip Morris continued to seek to have the chemicals neutralized at a location off its premises.
Browning-Ferris Industries (BFI), a large waste disposal firm, ultimately gave William Saddington, the chemical engineer [**273] at Philip Morris in charge of the disposal of the chemicals, the names of two companies that might be able to assist Philip Morris. BFI made no representations concerning those companies' capabilities or experience, assuming Philip Morris would make the appropriate investigation.
Saddington contacted A-Line Industries (A-Line), one of the two firms whose names BFI had furnished, and James Kachur, one of the two owners of A-Line, came [***21] to Richmond to confer with Saddington. After looking at the cylinders and measuring them, Kachur gave Saddington a brochure describing A-Line's previous activities and experience and told Saddington he had developed a device for the opening and sampling of the contents of deteriorated cylinders, prior to their neutralization and disposal.
The device was a heavy duty pipe 12 inches in diameter with a heavy duty flange welded into the top, which contained a removable top equipped with a valve and pressure gauge. A half-ball with a valve in it was welded to the bottom of the pipe. Another flange was inserted in the side of the pipe, which permitted a hydraulic plunger to be inserted into the pipe. When the top was sealed and all valves were closed, the pipe became an air-tight chamber. The small cylinders were to be placed in cradles designed to adapt to their various sizes (with the valve positioned opposite the hydraulic plunger) and inserted into the chamber. The hydraulic plunger or ram would then sever the valves of the cylinders and allow their contents to escape into the sealed chamber. The contents of the sealed chamber could be sampled by releasing a small amount of [***22] the chemical into a container through a valve at the bottom of the chamber. There was no integral mechanism for isolating the contents from the air after the sample came through the valve.
The chamber was intended to be a diagnostic tool for determining the contents of each cylinder. After the identity of the contents was determined, further action outside the chamber would be required to neutralize the chemical.
[*391] A few days before he came to Virginia, Kachur demonstrated the use of the chamber, using a non-hazardous gas, to George R. Weiss, the principal official in the State of New Jersey dealing with the handling, identification, and disposal of hazardous chemicals. Kachur hoped his chamber would be used to identify the unknown contents of a number of pressurized cylinders in the possession of the State of New Jersey. Weiss told Kachur that the testing device was not sufficiently developed for use. Weiss recommended substituting gaskets which were resistant to corrosive chemicals, as well as installing separate, self-contained manifold systems with the appropriate valves and devices to further analyze the chemical being tested. Weiss also warned Kachur that [***23] any person standing near the cylinder should be in a self-contained air mask until the material was identified. Weiss also suggested that Kachur conduct a number of tests on low-level toxic materials to check for potential pressure leaks to insure that the chamber could be safely used as a testing device for toxic chemicals.
Kachur told Weiss that he was going to Virginia in a few days to use the equipment on cylinders similar to those in New Jersey, and "hard technical data would be available soon." When Kachur mentioned that he would be dealing with diborane, a toxic boron compound related to pentaborane, but not as dangerous, Weiss warned him that "that stuff is bad," and Kachur said he would be careful.
Initially, Kachur suggested to Saddington that he would use the chamber to obtain a sample of the substance in each cylinder and then would analyze the samples, if necessary, to determine what they were in order to select the appropriate neutralizing agent, and Saddington agreed. Neither man discussed a method of isolating the sample from the air after it was drawn from the chamber. After Kachur identified the chemical, he planned to release the remaining contents of the chamber [***24] at a controlled rate by means of the valve at the bottom of the chamber connected to a hose, which would be extended [**274] some distance away to a 55-gallon drum containing an appropriate neutralizing solution. A pipe was to be attached to the end of the hose and inserted in the 55-gallon drum. The chemicals were to pass from the hose and pipe through holes drilled in the end of the pipe, and "bubbled" or "scrubbed" through the neutralizing solution. Thereafter, the contents of the drum were to be solidified and taken to a secure landfill.
[*392] After agreeing upon a price, Saddington hired A-Line to dispose of the cylinders in the manner Kachur had suggested. Saddington made no investigation into A-Line's reputation or experience in the disposal of pressurized gas cylinders, nor did he ascertain whether Kachur had ever successfully used the chamber to sample toxic chemicals.
When Kachur arrived at ELI's facility in Hanover County to do the work, Saddington agreed to a new plan Kachur proposed, which eliminated the sampling process. At trial, every witness familiar with principles of chemistry testified that it is important to identify the chemical in order to know what solution [***25] will safely and successfully neutralize it. Kachur gave no reason for the change of plan, and Saddington testified that he did not know why it would not be necessary to sample the contents before attempting to neutralize them.
When Kachur set up his operation in ELI's driveway, he positioned the chamber approximately eight feet from ELI's open garage door. Employees and business invitees of ELI and of Environmental Equipment, Inc. (Environmental Equipment), the two businesses occupying the adjacent building, customarily used the area to enter and leave the building and, therefore, were required to pass by the chamber and the neutralizing drum as Kachur did the work.
Steven Pond, one of the owners of ELI, allowed the operation to be done on ELI's premises because he said Saddington told him that he would be present the whole time to supervise the project. Saddington was present on the first morning, February 23, 1982, when Kachur began working, and Saddington testified he remained during most of the three days Kachur was there to ensure the operation was performed efficiently and safely. Saddington admitted he had authority to stop the work if he felt Kachur was not conducting [***26] it in a safe manner.
Saddington observed a number of incidents when he was overseeing Kachur's work which indicated that the operation was not being conducted as planned, but Saddington did not say or do anything. On the third day, Kachur had completed work on all cylinders except cylinder #12 which was the largest one, and which later was found to contain pentaborane. Saddington told Joseph Feyti, Kachur's co-worker, "I don't want to be around when you do that one." When Saddington left the work site for the day, [*393] he told Pond that the work was essentially finished and the men were cleaning up.
About 6:00 p.m. on February 25, 1982, Hubert C. Mentz, the owner of Environmental Equipment, saw Feyti and Kachur around the chamber without masks or gloves, and asked them what material they were working with. Feyti replied, "Damn if we know." When Feyti opened the valve at the top of the chamber, a white mist escaped. Shortly thereafter, Kachur removed the hose from the valve at the bottom of the chamber, and apparently drained a small amount of clear liquid into an open beaker. Kachur added water to the then unknown fluid in the beaker and mixed them together with his [***27] hand. Mentz noticed an odor similar to the smell of "burnt beans," and Feyti remarked that the odor smelled like "rotten eggs."
Kachur took the sample into ELI's laboratory, where he was overcome by the fumes and lost consciousness. William Anderson, an ELI employee, called the rescue squad.
When the rescue squad members arrived at the ELI office, they found Kachur lying unconscious on the floor, unresponsive to light and having difficulty breathing. They noted a faint sweet odor in the office and found Anderson seated on a chair nearby, but too confused to give them any [**275] information. * Feyti, who was still out in the driveway, was hyperactive and had white powder on his hands and a strong, pungent odor on his clothes. Feyti could tell the rescue squad members that the problem was some kind of chemical but that he did not know what it was. A number of rescue squad members became ill from breathing the pentaborane fumes while administering first aid and rushing the three victims to the hospital. Kachur later died without regaining consciousness.
* Anderson's injuries were so severe that he is now described as a "vegetable," living in a nursing home.
[***28] Using special equipment to protect themselves against the pentaborane, members of another disposal firm unsuccessfully attempted to neutralize the contents of what was later identified as cylinder #12 by passing it through a new caustic solution in the 55-gallon drum. Thereafter, the state hazardous materials emergency response officer arranged for the destruction of the cylinder by explosion at Camp A. P. Hill.