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Witness says railroad tie plant not safe

CALDWELL -- For years after visiting a railroad tie manufacturing plant in Somerville, members of an industrial waste cleanup team used the plant as a reminder to wear safety equipment, a witness told jurors Friday.

"I'll never forget the tie plant in Somerville," Mike Zientek said, adding that the plant's supervisor's name was used by his fellow team members whenever someone wasn't wearing safety equipment. "We'd tell them, 'You're acting like a [supervisor's] boy.'"

Zientek's testimony came on the second day of the trial in a lawsuit filed against Burlington Northern Santa Fe Railway Co. by former employee Dennis Davis.

The Somerville resident contends that the chemicals he was exposed to at the plant and the company's efforts to cover up their potential harm caused his cancer.

Davis was diagnosed in 2006 with cancer, which has since spread to his lungs, liver, appendix and skin, his attorney said.

Dozens of lawsuits have been filed against BNSF and Koppers Industries Inc., which bought the plant in 1995.

BNSF lawyers have said the suits, which say that the century-old tie plant is the source of cancer, are based on "junk science." One of those lawyers, Doug Poole, said this week that no evidence linked Davis' cancer to the plant.

Zientek, an employee of Pasadena-based Lighthouse Environmental Services, told jurors Friday that he was shocked at the level of contamination and the lack of safety equipment he observed the three times he was called to the plant between 1991 and 1993. His visits to the Somerville plant were the only times in his 20-year career that he was not asked to sign in or to participate in a safety orientation when visiting a cleanup site, he said.

Zientek said the site supervisor told him "that nothing here will hurt you, that you can pretty much bathe in the stuff."

On his third visit, Zientek said, his team was called out to clean up after the chemical substance used to treat the ties spilled onto the ground.

He said 1,000 gallons of the stuff -- which Davis' attorneys said is coal tar creosote -- spilled, but plant officials told him to clean up only visible traces of the spill. Creosote is used to weatherize railroad ties.

Zientek said his team left knowing the site had not been fully remediated.

During cross-examination, Galveston-based attorney William Floyd pointed out that Zientek's cousin and Davis are longtime friends.

Zientek said he contacted Davis' attorneys at Davis' request after learning from his cousin that he had cancer.

When asked by Floyd whether he had an "ax to grind," Zientek defended his reasons for testifying, saying he wanted to "help people" and believed "it's our right for our employers to protect us" from hazardous chemicals in the workplace.

Poole, the BNSF attorney, said after court was dismissed Friday that Zientek's testimony was not convincing.

"He has three snapshots under unusual situations, and he also had a bit of an agenda, so I don't think that's a scientific way to test and determine what exposures there are out there," Poole said. "I think a more reliable way would be to look at the fact that [the federal Occupational Safety and Health Administration] has been out there many, many times and never found work conditions to be unsafe."

Davis' attorney, Jared Woodfill, said the company deliberately misled government regulators, who often rely on companies to self-report.

"Before the government would actually come out, everything would be swept clean," he said.

According to information from the Texas Commission on Environmental Quality, historical groundwater contamination was documented in the early 1980s and is being remediated by BNSF.

The site has a permit through the federal Resource Conservation and Recovery Act, which governs the disposal of hazardous waste.

A TCEQ spokesman told The Eagle last year that the agency was "confident that the bulk of the contamination is on-site and is being remediated."

A study commissioned by the Somerville school district found that samples taken from the attics of local schools showed higher rates of toxins than in dust found in New York apartments soon after the World Trade Center collapsed. The Texas A&M University researchers who performed the study found the levels of toxins in classrooms normal and said the schools did not pose an immediate danger to students or staff.

The school district spent at least $145,000 to clean up the hazardous material last summer.

Poole pointed to studies by the Texas Cancer Registry that showed no abnormal rates of cancer in Somerville.

On Friday, Woodfill showed jurors a safety advisory memo from 1980 from chemical manufacturers recommending that workers be given safety equipment when working with creosote.

Robert Urbanosky, a Burleson County justice of the peace and a longtime plant employee, testified Thursday and Friday that he did not receive safety equipment other than steel-toed boots and a hard hat until the early 1990s.

Urbanosky, who worked at the plant from 1977 to 1995, said he had cleaned creosote out of the 150-foot-long tunnels used for treating the ties using a shovel, without gloves and with only a bandanna or rag covering his mouth and nose.

Davis' case is the second to go to trial in Texas. In February 2008, a Fort Worth jury ruled against Linda Faust, whose husband worked at the plant for nearly 30 years.

Seated with his wife in court on Friday, Davis appeared frail as he breathed laboriously through a surgical mask.

Woodfill said the Somerville native, whose father and grandfather worked at the tie plant, might not live through the trial but insisted he wanted it to continue as scheduled this time.

"He said, 'The last thing I want to do in life is finish this trial. If I can win this case, I can die happy,'" Woodfill said.

The trial, which is expected to last four to six weeks, will resume Monday.