A Life 'Trashed' in Cyanide Tank
Long Prison Term Predicted in Environmental Crime
By Tom Kenworthy
Three years ago, while working at Evergreen Resources, a ramshackle industrial chemical reprocessing plant in his small home town of Soda Springs, Idaho, Dominguez climbed down into a 25,000-gallon steel tank and, at the direction of his employer, began cleaning out the sludge at the bottom. The Scott Dominguez who was hauled out of the tank an hour later by fire department rescue crews would never be the same as the Scott Dominguez who went in, a vital young man fond of skiing, hunting and baseball.
The 36-foot-long tank into which Dominguez descended that day had once held cyanide. Later, it had held phosphoric acid. The combination, exacerbated when Dominguez began chipping away at it and hosing it down with water, produced hydrogen cyanide gas, the same lethal chemical used by Nazi Germany to gas Jews at Auschwitz. Working without any safety equipment, Dominguez was overcome and, despite the frantic efforts of co-workers, could not be carried up a ladder out of the tank. Firefighters eventually cut a hole in the side and pulled him free.
Today, Dominguez still has the ready smile for which he was known before his accident. But it is sometimes frozen on his face by the brain damage he suffered. Dominguez talks with great difficulty, struggling to utter a simple yes or no. Both his fine and gross motor skills are severely impaired. To shower, shave and brush his teeth in the morning is sometimes a three-hour ordeal. At night, he is unable to roll over in his bed, and his mother often must assist him several times an hour. He can walk, but he often stumbles. When he lifts his spoon to his mouth, or tries to cast a fishing line as he used to, he gets "stuck," says his mother, Jackie Hamp.
For all his physical and mental difficulties, Dominguez is aware of what happened to him. He knows he will never get well. And he knows who is responsible for imprisoning his mind and weakening his body. When he is asked about these things, tears well up and trickle down his cheeks.
Sometime next month, Dominguez will struggle up the steps of the United States courthouse in this southeast Idaho city to attend a sentencing hearing for Allan Elias, the owner of Evergreen Resources who last spring was convicted of violating a federal hazardous-waste law and of falsifying a worker safety permit. It took the jury just five hours to find Elias guilty on four counts related to Dominguez's injury, despite the best efforts of a battery of high-powered defense lawyers. Federal prosecutors expect that Elias will be sentenced to the longest prison term ever imposed in an "environmental crime," perhaps 15 years or longer.
The Justice Department made prosecution of Elias a high priority, determined to send a message to others that callous disregard of worker safety and environmental laws will not be tolerated. "Allan Elias, as much as anyone I have prosecuted in nine years at the Justice Department, fits the prototype of the environmental criminal," said David Uhlmann, the assistant chief of the department's environmental crimes division who helped prosecute Elias.
"He is someone who has disregarded environmental laws at his facilities for years. He is also someone who disregarded worker safety laws at his facilities for years," Uhlmann said. "The tragic consequences of his blatant disregard of the law is that a then-20-year-old man's life has been ruined."
Over the last generation, the United States has erected a comprehensive legislative and regulatory safety net to prevent industrial accidents like the one that devastated Dominguez. The Resource Conservation and Recovery Act governs the handling and disposal of hazardous industrial chemicals. The Occupational Safety and Health Administration regulates workplace safety.
According to state and federal regulators who testified at his trial, Elias paid little heed to those laws and regulations. Both at Evergreen Resources, which manufactured fertilizer from the waste products of a nearby Kerr-McGee vanadium plant, and at a Pocatello facility he ran earlier that used a cyanide leaching system to wring silver from the waste created by a phosphorous plant, Elias was repeatedly cited for worker safety violations.
"We issued citations, and also monetary penalties," said Ryan Kuehmichel, the regional director for OSHA. "He told our inspectors from the very first time they went out that he knew all about cyanide and didn't need any of our help."
Government investigators who looked into Elias's background in preparing the criminal case say he does not fit the profile of a midnight dumper. Now 61, he grew up in the affluent Long Island town of Great Neck, the son of a New York garment business owner. He attended the prestigious Wharton School at the University of Pennsylvania, receiving his undergraduate degree in economics at the age of 19. He then received a law degree from the University of Arizona. He was a real estate investor in Tucson before moving to Southern California. In the mid-1980s he moved to Idaho, where he patented a process for extracting silver from phosphorous tailings. He has three grown children--a son who is a physicist in California, another son who is a television news reporter, and a daughter who is a lawyer and is married to an assistant U.S. attorney in New York.
Though Elias did not testify in his own defense, his attorneys characterized what happened to Dominguez as a "freak accident" and insisted that Elias had tested the tank for cyanide and none had been detected. "He was substantially certain that he was not endangering" his workers, said defense attorney David Z. Nevin.
Another of Elias's attorneys, Craig R. Jorgensen, said neither he nor his client would discuss the case further.
Prosecutors and the witnesses they called at trial told a far different story. That the only test Elias conducted on the sludge was to determine if it contained silver. That the only safety equipment he had on hand was a 40-year-old air pack that had a warning label stating it would not protect against cyanide. That his employees received no safety training for working in confined spaces. That he had no cyanide antidote kit on site. That he knew the tank had held cyanide at his previous business. That his employees had complained of feeling dizzy when working in the tank the day before the accident. That they had requested safety equipment, which he promised he would provide and never did. That after the accident, he backdated a confined space permit to meet OSHA regulations. And that he misled rescue and medical personnel about what was in the tank.
John W. Obray, a physician at Caribou Memorial Hospital who initially treated Dominguez, testified that he specifically asked Elias whether the tank could have contained cyanide "and he said no."
Rescue and medical personnel said that Elias's failure to inform them what was in the tank delayed both the removal of Dominguez and prompt medical treatment. Daniel Teitelbaum, a Denver toxicologist, said that had Dominguez been removed more quickly and administered a high volume of oxygen, it "would have substantially reduced the brain damage which occurred." Had a cyanide antidote kit been nearby--one was eventually flown in from Pocatello--it would have "substantially improved the prognosis and reduced the likelihood of permanent brain damage," Teitelbaum testified.
Cyanide attacks the body's ability to use oxygen and particularly affects an area of the brain known as the basal ganglia, which controls movement and some thinking processes. Its effects are similar to those of Parkinson's disease. "Guys like Scott who are poisoned by cyanide are rendered very slow and rigid in their movements and also have thinking impairment," said John W. Roberts, a University of Utah neurologist who has treated Dominguez. "It looks like he has Parkinson's disease. The outward symptoms are similar, but the tragic thing is it's not treatable. . . . Scott has probably seen the full extent of his recovery from this." "His life," concluded Roberts, "has just been trashed."
At trial, jurors got a brief and poignant look at the damage done to Dominguez when he testified over the objections of defense lawyers, who said it was intended only to sway the emotions of the jury.
Asked if he had completed high school, Dominguez responded: "Um, um, um, um, um, um, um, um, um, um, um, yeah."
Asked if he would have entered the tank if he had known it had once contained cyanide, Dominguez responded: "Um, um, um, um, um, um, um, no way."
Asked why he had not been afraid to enter the tank, Dominguez responded: "Um, um, I, I, really, really, really did, really did trust Allan."
At Elias's sentencing next month, prosecutors will ask, in addition to a lengthy prison sentence, that Elias pay nearly $6 million in restitution to Dominguez. A civil suit seeking millions more has also been filed on his behalf against Elias and Kerr-McGee, which had bought all of Evergreen Resources's facilities before the accident.
Asked last week whether all of that would constitute justice in his case, Dominguez replied: "Um, um, um, um, n-no."
Staff researcher Lynn Davis contributed to this report.
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