DAUBERT VS. EMILE FISCHER

The Ninth Avenue Dump was used for disposal of oils, solvents and liquid chemicals. Regulators ordered the site covered and approved foundry sand as cover. PAHs, including benzo[a]pyrene (BaP), were detected in the sand during the RI of the site. Because the site was subject to flooding, and petroleum products were disposed there, the source of the PAHs in the sand was believed to be the petroleum products. However, the distribution of PAHs in the sand was inconsistent with proximity to liquid disposal and flooded areas.

Destructive distillation of coal produces coke, aqueous liquids, tar and gas. In 1825, Murdoch in England and Lebon in France developed this process for lighting factories and homes. Faraday isolated benzene from destructive distillation tar. In 1826, Unverdorben isolated aniline. In 1834, Runge isolated aniline and phenol from tars. Hofmann, Perkin and Nobel laureate Fischer experimented and reported analyses of tars from destructive distillations that contained aromatic hydrocarbons. Coal tars from Manufactured Gas Plants, which contain concentrations of PAHs, present an unacceptable risk at sites throughout the US.

NIOSH identified increased incidence of lung cancer in foundry workers, believed to be caused by BaP in foundry air. The sand used at Ninth Avenue was from a foundry that used an organic binder, mixed into the sand and hardened by polymerization. Molten steel was poured into the molds, which were large and hardened, limiting oxygen exchange. Destructive distillation of the organic polymer occurred, forming BaP and other PAHs.

Forensic analysis of spent sands containing the same organic binder used in the foundry sand sent to Ninth Avenue detected the presence of BaP. The analysis used standard MS techniques and identified BaP by comparison to the NIST library. The results were never published.

In a trail to determine if the foundry should contribute to cleanup costs at Ninth Avenue, the Court ruled this scientific evidence inadmissible because it did not meet the criteria established by the Supreme Court in the Dauber vs. Merrill-Dow Pharmaceuticals. The decision was not appealed, even though a subsequent literature search documented health impacts from PAHs at residential sits where foundry sands had been used as fill.