May It Please the Court!
From Auto Accidents to Agent Orange:
Building a Storefront Law Practice into
America's Largest Suburban Law Firm
Leonard Rivkin
with Jeffrey Silberfeld
Carolina Academic Press
Durham, North Carolina
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Ch. 7 - The Staten Island Gas Tank Disaster
Early on a frigid February afternoon in 1973, a work crew returned from its lunch break and
descended to the bottom of an immense, empty fuel tank, the largest liquefied natural gas storage tank
in the world. Made of concrete reinforced with steel cable, the tank, a hollow cylinder, measured 272
feet in diameter, stood nearly seven stories high, and was capable of holding 600,000 barrels of
liquefied natural gas. A reinforced concrete dome the size of a football field rested on top of the tank
like a lid on a giant saucepan. The floor of the tank, its walls, and the dome were two feet thick.
Outside the tank, a gently sloping earthen berm extended 100 feet up from the ground to the base of
the dome, making it appear that the tank had been submerged in a huge artificial hill.
The tank was located in an industrial section of Staten Island, New York, known as
Bloomfeld, one-mile south of the Goethals Bridge and 100 yards east of the Arthur Kill, the body
of water which separates Staten Island from New Jersey. The area consisted of other fuel tanks and
barren fields.
The work crew was repairing holes in a paper thin plastic membrane that covered the tank's
insulation. The insulation, a rigid polyurethane foam eight inches thick, lined the inside of the tank's
walls, floor, and dome. This particular insulation was chosen for the tank because of its thermal properties; the temperature inside the tank, when in use, had to be maintained at 260 degrees below
zero, the point at which natural gas liquefies. It was also chosen because it was labeled "non-burning"
in accordance with tests conducted by the American Society for Testing and Materials, an
organization which devised widely-accepted standards for hundreds of industrial products.
There was approximately 250,000 cubic feet of "non-burning" polyurethane foam insulation
inside the tank, all of it manufactured by The Dow Chemical Company.
Shortly after 1 p.m., fire broke out near the bottom of the tank. At that moment, forty-two
men were working inside the tank: forty on the floor and two on a scaffold hanging twenty feet
below the base of the dome. When the two men on the scaffold saw the fire below them, they quickly
climbed up a ladder and escaped through an opening in the dome. Thick black smoke followed them
down the side of the hill. The two men later reported that just as they reached the opening in the
dome, they heard a sound described as a "whoosh" and observed the plastic membrane billowing
crazily. Seconds after they escaped, there was an explosion. The force lifted the huge dome, which
then fell back into the tank. A workman outside the tank later stated that when the dome was lifted,
he got hit by a gust of wind "like a hurricane." Another workman heard a "booming noise" when the
dome collapsed. After the explosion, flames shot out of the opening at the top of the tank. Although
the Fire Department arrived within minutes and sprayed thousands of gallons of water into the tank,
the fire burned for six hours in the bitter cold, sending up a column of smoke hundreds of feet high.
Tragically, all forty men working on the floor of the tank were killed. The badly burned
bodies of the victims were found caked in ice beneath tons of reinforced concrete debris. The
coroner's report concluded that in all but one case the cause of death was asphyxiation.
Virtually all of Dow's "non-burning" polyurethane insulation was consumed in the fire.
* * *
Major Litigation
The Staten Island gas tank disaster generated what I call "major litigation," which differs from
routine litigation in several respects, some obvious, some subtle:
Number of Parties: The typical automobile accident case ordinarily involves one injured
plaintiff, maybe two, and the same number of defendants. Even in cases involving multi-car accidents,
there are, at most, ten parties. In contrast, as a result of the Staten Island gas tank disaster, forty
parties commenced wrongful death actions and two commenced personal injury actions. The
plaintiffs sued a total of ten defendants, including Texas Eastern Transmission Corporation, the
owner and operator of the tank; Battelle Memorial Institute, which researched the tank's design;
Brown & Root, Inc., which built the tank; Sinapp Company of Staten Island, the employer of the
work crew; Sheldahl, Inc., the manufacturer of the plastic membrane; and Dow Chemical, the
manufacturer of the polyurethane foam.
Identity of the Client: In the typical automobile accident case, the client is usually an
individual, such as an injured passenger or a negligent driver. In the Staten Island gas tank cases, my
client was Dow Chemical, a Fortune 500 corporation with an international reputation and worldwide
business interests.
I had been representing Dow for about one year in Ezagui when the Staten Island explosion
occurred, and it was my handling of Ezagui which landed me the Staten Island assignment. Don
Koehinger recommended me, as did several people at Fireman's Fund, including Don Frayer.
Just after I was retained, I met with three representatives of Fireman's Fund in that company's
Garden City, Long Island, office. We discussed various aspects of the case, and the consensus among
the Fireman's Fund people was that Dow's prospects were not good. in fact, a Fireman's Fund Vice
President told me at that meeting that he would be happy if I could keep Dow's share of any
judgment or settlement under fifty percent.
"49.9 percent?" I asked.
"49.9 percent would be fine."
Number of Forums: The typical automobile accident case gives rise to one lawsuit in one
forum, In contrast, the survivors of some of the victims of the Staten Island gas tank disaster chose
to assert their claims in federal court in Brooklyn; others chose federal court in Manhattan; still
others chose federal court in New Jersey; and one selected state court in Brooklyn. Ultimately, all
of these cases were consolidated in Brooklyn federal court.
In addition to the New York wrongful death and personal injury actions, Texas Eastern
brought an action against Dow for property damage and loss of use of the tank in yet another forum.
state court in Texas.
Dollar Value: Since the typical automobile accident case involves one plaintiff, the value of
the case is limited to the value of that one party's claim, In a death case in the early 1970's, that value
could have been as high as one million dollars or more. The Staten Island disaster involved forty
death claims with a combined value of as much as forty million dollars or more. In addition, Texas
Eastern's lawsuit against Dow for property damage and loss of use of the tank sought 130 million
dollars in damages, including punitive damages.
Related Proceedings and Investigations: There were approximately one dozen criminal,
administrative, or legislative proceedings and investigations which were generated by the Staten
Island disaster or were otherwise pertinent. We carefully monitored every such proceeding and
investigation for information., ideas, witnesses, and leads. The effort was well worth it. For example:
Criminal: A grand jury in Staten Island conducted an investigation into the explosion which
resulted in an indictment charging Texas Eastern with forty counts of criminally negligent homicide.
Ultimately, the indictment was dismissed. In order to charge a corporation with a crime, there must
be evidence that corporate officers had knowledge of the allegedly wrongful acts committed by
corporate employees. Here, the court ruled that the District Attorney had failed to establish the
requisite level of corporate knowledge.
Even though the indictment was dismissed, the grand jury investigation bolstered one of
Dow's most important defenses in the wrongful death and personal injury actions. That defense
asserted that one of the primary causes of the gas tank disaster was the negligence of Texas Eastern
in failing to adopt and enforce adequate fire prevention measures. The indictment supported that
defense by charging that officials of Texas Eastern negligently allowed the repair crew to use non-
spark proof appliances, such as irons and vacuum cleaners, even though Texas Eastern knew that
sparks from those appliances could ignite pockets of combustible gases which bad formed in the tank
during the repair process. The indictment may have been dismissed, but there was nothing to prevent
Dow from questioning grand jury witnesses, pursuing grand jury leads, and otherwise developing
proof to support the grand jury's charges of Texas Eastern culpability.
Administrative: OSHA: The Occupational Health and Safety Administration ("OSHA"),
a division of the United States Department of Labor, conducted an investigation into the cause of the Staten Island incident. At the conclusion of its investigation, OSHA issued a citation charging
that Texas Eastern had violated numerous federal job safety standards in connection with the repair
of the tank. OSHA charged that Texas Eastern failed to develop and maintain an adequate fire
detection and prevention program; failed to instruct the repair crew on fire prevention; failed to
require the use of properly certified spark proof repair equipment; failed to require the crew members
to wear protective clothing to guard against static electricity; failed to provide an adequate number
of emergency exits; failed to conduct emergency fire drills; and failed to promptly reset fire alarms
after testing.
Like the grand jury indictment, the OSHA citation was ultimately dismissed. A federal court
ruled that the Department of Transportation, and not the Department of Labor, had jurisdiction over
the incident. Nevertheless, OSHA's findings provided Dow with additional evidence and leads in
support of its theory that a primary cause of the gas tank disaster was Texas Eastern's negligence.
* * *
to chapter 8....
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