Author and EPA agent Joe Hilldorfer (Photo: Gabe Palmer © Palmer/Kane Inc.)

CURWOOD: Ohhh.

HILLDORFER: And that was because so many of the employees suffered terrible injuries there. Scotty was working there on August 26 of 1996 and he was ordered to go into this tank. The tank was rusted like almost everything there. It was about feet 36 long, 11 feet high. And the only way into this – what turned out to be a death chamber – was a small aperture, kind of like a manhole, at the top of the tank. There was no safety equipment so they used an old ladder, picked up the ladder and climbed into the hole the night before Scotty was hurt.

The reason for them doing this was the owner, Allan Elias, a millionaire from Hollywood, CA, ordered them into the tank to clean out the tons of sludge that was at the bottom of it, about knee-deep. The reason he wanted it cleaned out was he had railroad cars stacked up against the plant with sulfuric acid and he wanted to have the tank cleaned and put the acid into the tank. Scotty and another young man by the name of Darren Weaver had a difficult time breaking up this sludge. They worked in there for just, oh, five minutes or so on the night before the terrible event that occurred the next day.

Scotty went home. Even though he was this outdoorsman, an avid athlete, his fiancé, Theresa Cole, told me and my partner, Bob Wojnicz…she sat on his couch that night, he could barely move, he was lethargic, there just wasn’t something – there was something terribly wrong going on in his body. But when he went back to the plant that next day, he was terribly frightened to go into that tank. But he was ordered to do so.

CURWOOD: So, he goes into the tank and what happens next?

HILLDORFER: He goes into the tank, he’s in there about 30 minutes with Darren. They have a fire hose and rods trying to break up the sludge. All of a sudden Scotty turns to Darren in this black tank – they can barely see each other – but he says to Darren, “I can’t breathe.” Darren feels himself being overwhelmed by something, he didn’t know what. He runs up the ladder, falls off the top as he screams to Brian and Gene.

Probably the only good thing that may have happened that day was the truly heroic efforts by the co-employees and the volunteer fire department in Soda Springs. They each risked their lives going into the tank. They would put Scotty over their shoulder and carry him through this knee-deep sludge. The last time Brian Smith got out of the tank he’s caught a whiff of bitter almonds. He managed to get to the top of the tank and he fell off, ran to the trailer, called for the fire response. Darren Schwartz, the incident commander, got there, as did the owner, Allan Elias.

Amazingly, according to both Schwartz and his lead fireman that day, Matt Christiansen, they never came across at any accident scene before someone as uncooperative as Allan Elias. They repeatedly asked him what was in the tank. Elias continued to maintain there was nothing in the tank but sludge and water. They finally cut a three-foot hole. Two of the firemen, one being John Sture, climb into the tank, and he screams out, “Oh my God, he’s alive, he’s alive!”

CURWOOD: What was the extent of damage that he had to his body?

HILLDORFER: The problem, I’ve come to learn, with cyanide poisoning is it binds with your mitochondria and you can no longer use oxygen. As time continues to go by, this young man’s brain is eating itself. There were a number of holes in the basal ganglia portion of his brain, which is a specific injury for cyanide poisoning. He has serious difficulties speaking, moving – but inside there is someone trapped. And that’s probably the worst thing. He knows what happened to him and what was taken away from him.

CURWOOD: Scotty Dominguez was in a hospital … and at what point do you get involved with this story?

HILLDORFER: I was involved the next day. That’s when I came and interviewed Allan Elias and we started the criminal investigation. It wasn’t till March of the following year though until I met Scott, after he’d got out of a long rehabilitation in a clinic in Salt Lake City.

CURWOOD: When you met Allan Elias, what did he tell you had happened at his plant?

HILLDORFER: Mr. Elias told me he had a tank cleaning operation going on, that he had all the safety equipment that anyone could ever think of needing. He said he ordered one of his employees to do a confined space permit. He ordered the employees to do this one by the book, as safe as possible, even though he thought the material in the tank was as safe as shampoo. But he said the only reason anyone got hurt that day – and he was almost in a rage when he expressed this – he said it was because there was no managing of stupidity, and you just can’t account for the actions of stupid employees.

What made Mr. Elias such a difficult defendant to investigate and prosecute, he was always one step ahead of us. He would manufacture evidence, and he got to our most important witness, Darren Weaver, and got him to submit an affidavit which changed Weaver’s earlier story to the state police, blaming the problem on Scott and the other employees.

CURWOOD: So, when does it finally come out that there is cyanide in this tank?

HILLDORFER: It comes out the next day when I talk to Elias. But the problem is going to prove that Mr. Elias knew there was cyanide in the tank and didn’t, in fact, test it as he said he did for the presence of cyanide. If Mr. Elias would have tested it for cyanide at a legitimate lab, he would have had a strong defense as far as having the mental intent to commit this terrible crime.

Of course, Mr. Elias didn’t give us his lab results. Bob Wojnicz and I tracked down the lab somewhere in Salt Lake City. The owner of the lab, Kyle Schick, said “yes, you’re correct, Mr. Elias did send us a sample before those young men went into the tank.” But Mr. Elias had it tested for one thing and that was silver content. Once it didn’t have silver, he had the waste buried.

CURWOOD: So, in fact, it never had been tested?

HILLDORFER: No, not until after the EPA does their first search warrant. He knows he’s in the crosshairs of an investigation. And then he sends another sample after the fact to the same lab, and for a lousy fifty bucks they test it for cyanide. And it has tremendous levels of cyanide in it.

CURWOOD: Okay. Now, so far, what you’ve described to me sounds like pretty much an open and shut case. A man goes into a place unprotected by safety equipment, becomes deathly ill as a function of that, it turns out that there is, in fact, hazardous material in this tank. It seems that this has all happened in violation of the law, and yet I gather from your story it wasn’t open and shut. Why?

HILLDORFER: There never seems to be, especially in a high profile case, an open and shut matter when it comes to the prosecution of an environmental crime. The bare bone element you need to prove in one of our cases, for a dumping case, is that the waste is a hazardous waste. We obtained a sample from the site when I met Mr. Elias that day, we had it tested by the EPA lab – shockingly, the test results came back that it didn’t designate as a hazardous waste.

CURWOOD: Wait a second. You’re saying you test the stuff, it comes back and it doesn’t test as hazardous waste, and yet this guy’s in the hospital near death? How do you figure that?

HILLDORFER: I couldn’t figure it and I was beside myself. And without being able to prove that this was a hazardous waste there was no case. What I came to learn, and the reason we managed to get this into a courtroom, the preeminent scientist in the United States for environmental matters is the chief deputy scientist for the EPA, Dr. Joe Lowry. He told me that when the government wrote up the regulations for how to test cyanide-bearing waste for the mining industry – it was called HSW 846 – basically, they got the decimal point wrong. And he said no matter how high – you could have pure sodium cyanide, you could have pure sulfuric acid, and you still would never have the waste designate under this faulty test as hazardous.

CURWOOD: So the law doesn’t say it’s hazardous waste, this particular amount and yet, obviously, the effect is hazardous. So to bring this case you have to prove that the law is wrong?

HILLDORFER: We had to prove that the EPA law was faulty. And the only way we had a chance of convincing a federal judge that this was a death chamber was Dr. Lowry used the small sample of sludge I received from Mr. Elias. He made a scale model of that tank, he mimicked the conditions in that tank that faced Scotty and his employees that day, and he extrapolated backwards to show how deadly that atmosphere was.

CURWOOD: Okay, there you are with your expert witness devising a model, really, to show how deadly this is. And Mr. Elias had some of the best counsel, lawyers, that he could buy, I’m sure. How did you bring this forward in court?

HILLDORFER: Like any case, we have to bring in witnesses. The employees that worked there, particularly Darren and Gene, not only were they incredibly brave men on the day of the accident – it really wasn’t an accident – but they basically gave up their jobs at Evergreen, came in the court, and they told of the horrific working conditions that were there. We tracked down employees that worked there over the years, all of them told us of the dismal working conditions. And based on their testimony and Dr. Lowry’s analysis of it, we managed to get the case to a jury in Idaho.

CURWOOD: What happens when you go in front of the jury?

HILLDORFER: The jury really riveted on the testimony of the witnesses. The most powerful witness in that case – it’s something I’ll never forget. Scott Dominguez had the courage to come in the court. He managed to confront Elias, and the jury was only out four hours before they returned a guilty verdict on all counts.

CURWOOD: So, the jury finds Mr. Elias guilty.

HILLDORFER: Yes.

CURWOOD: What does the judge do?

HILLDORFER: Both of our prosecutors argued strongly for incarceration that night. The judge says no. Mr. Elias turns the justice system on its head. He hires a new dream team of appellate attorneys, they manage to get a number of the charges thrown out of court…

CURWOOD: And then?

HILLDORFER: I fly back, as do our prosecutors, in March. This is 1999. The day before Mr. Elias is sentenced, the judge reinstates the charges. And we have one of the most amazing sentences that I’ve ever witnessed in my life.

CURWOOD: And that was?

HILLDORFER: Judge Winmill sentenced Allan Elias to 17 years, the longest sentence imposed in the history of environmental crimes.

CURWOOD: So, the law has the wrong levels for cyanide as hazardous waste. What progress, if any, have you been able to make to get that regulation fixed, to move the decimal point to the right place?

HILLDORFER: From day one, when this injury occurred, Dr. Lowry was immediately aware of it. He was working for years to change this law, and he used this case to force the changes through both the EPA and the legislative bodies.

CURWOOD: How does this case set precedent in environmental law?

HILLDORFER: It set precedent in a number of ways. It made a big difference with the length of the sentence – it shows that if we treat environmental crimes like other crimes, there’s real consequences for the defendants in our case. It made a tremendous difference to my fellow EPA CID agents across the country. We suffer far more defeats than we have victories because it is hard to convince everyone, from the prosecutors to the jury to the judge, that our crimes are real crimes. It was a morale boost to my fellow agents.

CURWOOD: Joe Hilldorfer is a special agent for the Environmental Protection Agency based in Seattle, co-author of a book with Robert Dugoni, called “The Cyanide Canary: A Story of Injustice: One Man Caused It, One Man Fought It, One Man’s Life was Destroyed by It.” Joe, thanks for taking this time with me today.

HILLDORFER: Thank you very much, Steve. It was great to tell our story.

[MUSIC: Alloy Orchestra “Lust” SILENTS (Accurate – 1997)]

Links

The Cyanide Canary