Prosser man charged after injuries on farm

By Tyler Richardson, Tri-City HeraldMay 11, 2013 

PROSSER -- A Prosser farmer could face up to a year in jail after prosecutors say he failed to properly store hazardous waste that severely burned three men on a farm in Benton County.

Philip Andrew Whitney, 79, recently was charged with violating the Hazardous Waste Management Act, which is a felony. He is set to be arraigned May 30 in Benton County Superior Court.

Whitney could not be reached for comment by the Herald. A woman who identified herself as Whitney's wife said he was out of town.

The charge results from a lengthy investigation by the criminal investigation division of the U.S. Environmental Protection Agency, with help from the Benton Franklin Health District and the Benton County Prosecutor's Office.

Prosecutors allege Whitney improperly stored and disposed of tons of fruit pomace -- the remains of fruit after it has been pressed -- in large pits on his property, according to court documents.

The pits also contained earth with spent material collected during the juice filtering process, documents said.

The pits deprived the waste of oxygen, causing temperatures inside to rise above 500 degrees. They were covered with soil, which blended in with the surrounding terrain and concealed the decomposing waste smoldering below.

Benton Fire District 3 described the pits as an "eternal burning pulp."

Whitney was contracted by Seneca Foods Corporation and Milne Fruit Products Inc. to haul away and dispose of industrial quantities of waste from their businesses, documents said. Seneca paid Whitney $15 per ton to manage the waste rather than pay $84 per "16 yard load" to dump it at a licensed industrial landfill.

Amputations, severe burns

In 1996, 16-year-old Phillip Hickle had to have his legs amputated after falling into one of the pits while he was out quail hunting on Whitney's property, documents said.

That same year, Jon LeClaire fell into one of the pits and received second- and third-degree burns.

In 2011, Benjamin Fox fell into one of the pits and had to have 11 skin grafts for third-degree burns, documents said.

Whitney had sold the property in 2010 to Volpe Vineyards LLC, which included members of the Fox family. Benjamin Fox, in a lawsuit, claimed Whitney did not disclose the existence of the waste pits.

All three of the injured men sued Whitney. Hickle and LeClaire also sued the juice producers who contracted with him.

Hickle, who died in 2006, settled with Whitney for $1 million and both fruit producers for an undisclosed amount in 2003.

LeClaire had his case dismissed because it was determined he was trespassing on Whitney's property when he fell into the pit. It is unclear if Fox's lawsuit has been settled.

The EPA investigation began shortly after Fox was injured, said Benton County prosecutor Terry Bloor.

"His injuries got the ball rolling," Bloor said.

Long history of violations

Bloor outlined Whitney's history with the Benton Franklin Health District in court documents that show complaints and violations spanning almost two decades.

The health district filed at least three complaints against Whitney in the early 1990s, when he operated the waste pits without a permit, documents said.

Officials received at least two other complaints about illegal dumping in a two-year span from 1991-93. In 1994, he was charged with illegally dumping waste and eventually acquitted by a jury.

After Hickle and LeClaire were injured in 1996, the health district reluctantly granted Whitney a permit that allowed him to dump pomace and apply it to his land, documents said. Officials were worried about the injuries and his record of noncompliance.

"We had reservations," said Rick Dawson, supervisor of the health district's Land Use, Sewage and Water section. "Anytime you have someone with a history of noncompliance, you have to have reservations about issuing a permit."

The health district cited Whitney multiple times between 1997 and 2001 for storage issues and delays in applying the waste to his land, Dawson said. They revoked the permit in September 2001, when an inspection found waste was not being correctly stored.

Whitney applied for a permit again in 2005, documents said. It was granted when the health district saw no signs of illegal waste on his property, though officials remained concerned.

"He met all the conditions for a permit," Dawson said. "If you meet the conditions it's pretty difficult for us as an agency to say you can't have one because you were a bad actor in the past."

That permit lasted only a month. The health district found that pomace had been stored improperly and one pile was emitting smoke, documents said.

The district suspended the permit and instructed a representative of Whitney Farms to put out signs warning of possible injury. Subsequent inspections found piles that were smoking and above the regulated temperature.

The health district didn't renew Whitney's permit in 2006, but he illegally continued to dump waste on his property, Dawson said.

Benton County prosecutors charged Whitney in 2007 for violating the Hazardous Waste Management Act, but the charge was dismissed before it went to trial.

Three weeks after Fox was burned in March 2011, a contractor hired to develop a plan to clean up the waste on Whitney's old property recorded a temperature of more than 400 degrees from the pit where Fox was injured, documents said.

A PVC pipe with a melting point of exactly 380 degrees melted within five minutes when inserted into the pit, documents said.

Officials determined there were three different pits allegedly used for dumping on the property, documents said. Two pits were about 20 feet deep and the third was about four feet deep.

The EPA found that the two deeper pits contained a "fine dust-like material" with temperatures ranging from 800 to 1,100 degrees, documents said. The agency also removed tires and furniture from the pits during the cleanup.

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