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Prosser family sued a second time over grape waste

PROSSER -- A farming family responsible for the improper disposal of grape waste that cost a teenage boy his legs 15 years ago now is accused of injuring another man in the same way.

Benjamin Fox, 32, has told authorities he fell into a hidden pit of smoldering grape pomace, the slushy mash of skins and twigs left over after juice is pressed, on land previously owned by Whitney Farms Inc. of Prosser. He suffered second- and third-degree burns.

"He has very little sensation in his legs and virtually no sensation in his right foot," his brother, Cameron Fox, said this week.

Benjamin Fox did not return an interview request left with his brother.

Benjamin Fox, 32, filed a lawsuit in June against Whitney Farms, claiming it is responsible for the injuries he suffered March 1 and had not disclosed the hazard when it sold the land to his family in 2010.

Whitney Farms owned the property in 1996 when then-16-year-old Phillip Hickle slipped into a smoldering pit of grape waste, burning his legs so badly that they had to be amputated.

"It actually happened again," said Grandview attorney Rick Kimbrough, who filed the lawsuit in Benton County Superior Court.

A man who answered the phone at Whitney Farms declined comment Thursday and hung up before giving his name. However, in court records the farm denied responsibility because it didn't own the property at the time of Fox's accident.

Also represented by Kimbrough, Hickle sued Whitney Farms and two fruit processors and settled out of court with all three parties, while state authorities began regulating pomace as hazardous waste.

Hickle died in 2006 at age 25. It was unclear how, according to a Tri-City Herald archive story.

When spread out, grape waste often is used by farmers to augment soil.

However, Whitney Farms dumped the waste into piles or pits, robbing it of oxygen and letting it smolder as it decomposed, according to Fox's lawsuit and state authorities. Temperatures during some tests registered up to 500 degrees.

Health officials for years told Phillip Whitney to spread out the grape waste, said Rick Dawson, a land-use supervisor with the Benton-Franklin Health District.

In 2005, the agency terminated the family's land-application permit and asked Benton County prosecutors to file charges to address "an alarming disregard for compliance," according to state Department of Ecology records.

Prosecutors filed criminal charges in 2007, but then asked that the case be dismissed, Dawson said. He said he was unsure why.

"As the health department, we believe we did everything we could about this situation," Dawson said.

Benton County Prosecutor Andy Miller said his office dropped the criminal case because state law only prohibits improperly storing solid waste, which they could not prove because grape pomace often is valuable as a soil additive. The recent injury does not change his opinion, he said.

"The statute doesn't prohibit something dangerous on the property, it prohibits solid waste," he said.

Meanwhile, the federal Environmental Protection Agency is overseeing a cleanup of the property that is nearly complete.

The federal agency spread out 11,000 cubic yards of debris over 20 acres to prevent it from smoldering, said Cameron Fox. It also extracted 2,500 buried tires.

Also, the Ecology Department has formally asked the farm to disclose other potential waste sites.

The family appealed to the state Pollution Control Hearings Board, which has scheduled a hearing for February, said Joye Redfield-Wilder, a department spokeswoman.

A trial on Fox's lawsuit is scheduled for June 2012, but his attorney, Kimbrough, expects that to be delayed as more defendants are added.

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