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Judge denies three Harran defense motions

By Michael Torrice

A Los Angeles County Superior Court judge today denied three defense motions that could have dismissed a criminal case against University of California, Los Angeles, chemistry professor Patrick Harran. With the rulings going against the defense, the case moves closer to trial. The judge set the next court date for Oct. 3. Harran could go to trial within 60 days of that date.

Harran faces four felony charges of violating the state labor code. The charges stem from the death of research assistant Sheharbano (Sheri) Sangji after a 2008 fire in Harran’s lab. In November and December, 2012, Judge Lisa B. Lench heard testimony in a preliminary hearing on the case. She ruled in April that there was sufficient evidence to send the case to trial. After the preliminary hearing, the case was sent to Judge George G. Lomeli for trial.

Before today’s hearing, Harran’s attorneys submitted three motions: one asking the judge for a so-called Franks

hearing, another called a demurrer, and a third to dismiss the charges based on lack of probable cause. The district attorney’s office replied to each motion, and the defense then responded in writing to those replies.

In court today, the judge started by asking the defense and prosecution to go to chambers to discuss the Franks hearing motion. The hearing is often used to throw out warrants, such as search or arrest warrants, on the grounds that the police or district attorney obtained the warrant using false statements. In this case, the defense argued that Harran deserved such a hearing in part because David Higuera, a senior investigator for the Los Angeles County District Attorney’s Office, allegedly omitted key information from his affidavit for an arrest warrant for Harran.

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Attorneys will argue on three motions on Monday in case against Patrick Harran

With Michael Torrice

On Monday, Aug. 26, University of California, Los Angeles, chemistry professor Patrick G. Harran is scheduled to appear in court for a hearing regarding felony charges of violating the state labor code. The charges stem from the death of research assistant Sheharbano (Sheri) Sangji after a 2008 fire in Harran’s lab.

Harran was initially charged in the case on Dec. 29, 2011. Preliminary hearing testimony was heard in November and December, 2012. Los Angeles County Superior Court Judge Lisa B. Lench ruled on April 26 that there was sufficient evidence to send the case to trial.

Harran faces four charges of violating California Labor Code section 6425(a), which makes it a crime for “Any employer and any employee having direction, management, control, or custody of any employment, place of employment, or of any other employee” to willfully violate an occupational safety or health standard in such a way that causes death or permanent or prolonged impairment of the body of an employee.

The four specific charges center on:

  • Failure to provide employees with information and training to ensure they are apprised of the hazards of chemicals present in their work area [Title 8, section 5191(f)(4)]
  • Failure to establish, implement, and maintain an effective injury and illness prevention program that includes “methods and/or procedures for correcting unsafe or unhealthy conditions, work practices and work procedures in a timely manner based on the severity of the hazard” [Title 8, section 3203(a)(6)]
  • Failure to require body protection for “employees whose work exposes parts of their body, not otherwise protected as required by other orders in this article, to hazardous or flying substances or objects” [Title 8, section 3383(a)]
  • Failure to require “clothing appropriate for the work being done” [Title 8, section 3383(b)]

Monday’s hearing will center on three motions filed by Harran’s defense team to try to get the case dismissed. While we have not yet been able to obtain the initial motions, we have the district attorney’s opposition arguments and the defense’s replies to the opposition.

Motion to dismiss pursuant to penal code section 995
California Penal Code section 995 says that an indictment or information shall be set aside by the court in a few specific situations, such as if a defendant has been indicted without reasonable or probable cause.

From the district attorney’s opposition document, page 10:

Distilled to its essence, the Motion to Dismiss claims: 1) The California Code of Regulations sections charged do not apply to defendant Harran because they only apply to an “employer”; 2) Defendant Harran did not “willfully” violate the law because he was unaware of his duties; 3) Victim Sangji was trained by someone (the defense offers up Pomona College, Norac Pharma, defendant Harran, and Dr. Paul Hurley as possible candidates); 4) Defendant Harran was not responsible for devising an Illness and Injury Prevention Program; and 5) The use of lab coats was “optional” at UCLA. Subsumed within these five arguments are various sub-arguments that will be addressed to the extent necessary below.

District attorney opposition to motion to dismiss
Defense reply in support of motion to dismiss

Notice of demurrer and demurrer to felony information
According to Nolo, a demurrer is “A written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit.”

From the district attorney’s opposition document, page 4:

The defense essentially offers three arguments in support of its Demurrer to Felony Information. The defense asserts that the Information must be dismissed because the occupational safety or health standards: contemplated by Labor Code section 6425(a) and violated by the defendant do not apply to him. The defense claims that 1) Labor Code section 6425(a) is not a “stand-alone” statute and for criminal liability to attach a defendant must willfully violate any occupational safety or health standard, a claim that the People do not dispute. The defense further claims, however, that on the face of the charged regulations, those regulations do not apply to defendant Harran. The defense next claims that 2) if the safety or health standard is read to encompass the defendant, the charged standards or orders are imperrnissibly vague and therefore violate the defendant’s due process rights. The defense finally asserts that 3) Title 8 makes a clear distinction between employers and supervisors, and therefore this court must conclude that the charged standards or orders do not apply to the defendant and that supervisors are criminally liable under Labor Code section 6425 only when the specific standard or order expressly places obligation upon a supervisor.

District attorney opposition to demurrer
Defense reply in support of demurrer
Declaration of John J. O’Kane IV in support of defendant Patrick Harran’s reply in support of demurrer

Motion for Franks hearing, to quash arrest warrant, and demurrer to felony complaint
A Franks hearing, which gets its name from the 1978 case Franks v. Delaware, is usually held to determine whether a police officer’s affidavit used to obtain a search warrant was based on false statements by the officer. In this case, the defense argues that David Higuera, a senior investigator for the Los Angeles County District Attorney’s Office, omitted key information from his affidavit that led to an arrest warrant being issued for Harran. If the affidavit is eliminated, then the arrest warrant is invalid, and the case goes away because prosecution didn’t start before the three-year statute of limitations ran out.

This motion was filed under seal and parts of the filings are redacted. The arguments appear to be largely a repeat of the defense’s attempt to get the case dismissed last summer. The redacted parts of the filings likely pertain to an alleged juvenile criminal history of California Division of Occupational Safety & Health investigator Brian A. Baudendistel, who authored the report that formed the basis of Higuera’s affidavit. Harran’s defense team argued last summer that a conviction for a 1985 murder, when Baudendistel would have been 16, undermines the inspector’s credibility.

The other argument is that Higuera did not include information from a prosecution interview with Steve Carr, an organic chemist employed by the Los Angeles County Sanitation District. From the defense’s reply to the district attorney’s opposition argument, page 1:

Dr. Carr opined that: (i) it was “nebulous” as to whether Ms. Sheharbano Sangji would have required additional training regarding techniques used to transfer the pyrophoric reagent at issue here, tert-Butyllithium (“t-BuLi”) and the use of personal protective equipment (“PPE”); (ii) it was reasonable for Professor Harran or someone in his position to have believed that Ms. Sangji did not need ‘additional training regarding the use of t-BuLi or with PPE because Ms. Sangji’s. resume and background indicated that she was “operating at a high level” and a very “sophisticated person;”; Sangji already knew how to perform the requisite t-BuLi transfer techniques, as evidenced by a she performed on October 14, 2008, which was observed by Professor Harran and during which Ms. Sangji wore the appropriate PPE, as well as an experiment she performed three days later, on October 17, 2008; and (iv) that an experienced chemist would have performed the experiment in the manner Ms. Sangji utilized on the date of the tragic accident (e.g., without clamping the bottle or strict adherence to the Aldrich Bulletin, etc.).

District attorney opposition to motion for Franks hearing
Defense reply in support of motion for Franks hearing

Thursday chemical safety round up

I can only imagine the letters we'd get if we ran this photo today. Via the Watch Glass, http://cen.watchglass.org/post/57517779213/gum-if-this-operator-is-kidding-his-employer

We all had different standards back in 1969. Via the Watch Glass, http://cen.watchglass.org/post/57517779213/gum-if-this-operator-is-kidding-his-employer

Catching up on a few weeks of chemical health and safety news:

  • First, a lab clean-up haiku from the Baran lab blog:

    Deep beneath the sash
    BBr3 oozes forth.
    WTF, Sure/Seal™?

  • A study of flash point values on Safety Data Sheets shows that “there were significant variations between the disclosed and measured flash point values. Overall, more than one third of the products had flash points lower than that disclosed on the MSDS.”
  • From It’s the Rheo Thing, the Added dangers of a fire at a plastics plant and Another monomer John won’t work with
  • From the Pump Handle, on the Chemical Safety Improvement Act, Better band-aids or systemic change?
  • From Restricted Data, the Third Core’s Revenge, on the havoc wreaked by the plutonium core that was prepared but never used to bomb Japan in World War II
  • What really went on at Area 51?

    When workers at Area 51 first came to me in the 1990s, they described how the government had placed discarded equipment and hazardous waste in open trenches the length of football fields, then doused them with jet fuel and set them on fire. The highly toxic smoke blowing through the desert base was known as “London fog” by workers. Many came down with classic skin and respiratory illnesses associated with exposure to burning hazardous waste. A chief aim of the lawsuits was to discover exactly what the workers had been exposed to so they could get appropriate medical care.

  • Wal-Mart reached a settlement with OSHA that includes addressing exposure to workers to cleaning chemicals
  • OSHA also issued a final rule “that will require all federal agencies to submit their OSHA-required injury and illness data to the Bureau of Labor Statistics every year. This data will allow OSHA to analyze the injuries and illnesses that occur among the more than two million federal agency workers and develop training and inspection programs to respond to the hazards identified.”
  • Continued repercussions of the Chevron refinery fire in Richmond, Calif., including lots of lawsuits
  • Crews rush to clean up former Cold War rocket test site in California, although I question using “rush” in the story headline given that the mess stems from a 1959 nuclear accident
  • Chemical drums found on Okinawa likely contained military maintenance shop and hospital waste, not Agent Orange

Fires and explosions:

  • An explosion at Turkish Mechanical & Chemical Industry Corp.’s gunpowder factory in Turkey killed two workers and injured sixteen others; the subsequent fire spread to adjacent fields
  • A fire at hazardous waste company Perma-Fix in Georgia “started as employees were mixing chemicals,” including acetone, although the cause of the fire is still being investigated; two employees were still hospitalized five days after the fire
  • Something sparked an ethanol fire at a Kinder Morgan plant in Louisiana, one worker was hospitalized
  • A fertilizer tank at Gulf Sulphur in Florida caught fire twice in a week, resulting in the tank being emptied of sulfur for a thorough inspection

Leaks, spills, and other exposures:

  • In Louisiana, a train derailment resulted in cars leaking lubricant oil, sodium hydroxide, and dodecanol; cars containing vinyl chloride were damaged but didn’t leak. Approximately 250 people were evacuated from homes in the area.
  • Acrolein leaked at a Dow Chemical plant in Louisiana
  • Hydrochloric acid spilled from a 55-gal drum at Rockwater Energy Solutions and 200 gal more spilled at metal-salts provider Blue Line, both in Texas
  • Styrene spilled from a 55-gal drum at Hi-Lite Markings in New York
  • Adhesives manufacturer H.B. Fuller in Michigan released isocyanite from “a 3,000-pound pressurized container”
  • A 55-gal drum of 50% hydrogen peroxide “began to have a chemical reaction” and was offgassing at a Kansas wastewater treatment plant
  • Ammonia leaked at C&S Wholesale Grocers in Maryland and another 50 lbs vented through a pressure release valve at a Pennsylvania dairy, paramedics treated 17 people and took 11 to hospitals
  • A lightning strike at Intercontinental Terminals in Louisiana resulted in release of butadiene
  • “An undetermined amount” of mercury spilled at a maintenance shop behind a hospital in Idaho; mercury also spilled at a hopsital in the Philippines
  • Termite exterminators turned up a glass jar of sodium cyanide buried under a home in California

Not covered (usually): meth labs; incidents involving floor sealants, cleaning solutions, or pool chemicals; transportation spills; things that happen at recycling centers (dispose of your waste properly, people!); and fires from oil, natural gas, or other fuels

Lab safety videos on lab coats, eye protection, and eye washing

Yes, I know, my last post was just videos, too. But people are doing some good ones! Behold a typically great video from the University of California, San Diego, on personal protective equipment: Eye and face protection and lab coats.

From UC Berkeley, what happens when you neglect eye protection (at the end, though, even if his eyes are fine, I think that the acid on his head requires a shower):

Lessons learned videos: Formic acid splash and trichloroethylene spill

Kudos to Cornell University for turning some incidents into lessons learned videos:

Formic acid splash


Trichloroethylene spill in a hallway

When is an explosion really an explosion

A letter in this week’s issue of C&EN takes us to task on our word choices:

I was disappointed to see the words “blast” and “explosion” used to describe the incidents at both Williams Cos. and at CF Industries in Louisiana (C&EN, June 24, page 5). Although both incidents involved fatalities, the CF Industries accident appears to have been caused by the rupture of a nitrogen line or vessel by overpressure. The mainstream press may think that is an explosion, but heaven help us if C&EN does.

Richard Rosera
Scotch Plains, N.J.

This is certainly something that I’ve thought about when reporting on incidents and compiling the news round ups. The challenge is that in a lot of cases, I don’t see good alternatives to “blast” or “explosion.” Complete this sentence: “The reaction released carbon dioxide, so pressure built up in the flask and it _________.”

I understand what I suspect is Rosera’s point, which is that a pipe or vessel rupture due to corrosion or pressure is a different scenario from something involving an explosive material, but does the answer lie in different vocabulary or giving the the details of what happened to put words like “explosion” in the appropriate context? The referenced story did that for the CF Industries incident, but similar details were not yet available with the Williams Cos. plant.

Friday chemical safety round up

Chemical health and safety news from the past three weeks.

  • #SciConfessions took off on Twitter. Here’s a Storify that includes a few of my favorites, and PhD comics weighed in as well:
  • ChemBark found an amazing video of a traffic accident that ruptured gas cylinders
  • Chemjobber wrote about Person-to-Person: A better approach to developing academic chemical safety culture?
  • A new month brings a new issue of the Process Safety Beacon, this time on focusing on exploding water pumps
  • NIOSH announced a new robotic manikin headform for respirator fit research
  • OSHA and NIOSH issued a hazard alert on 1-bromopropane: “The hazard alert was issued in response to information on the increased use of 1-BP as a substitute for other solvents as well as recent reports of overexposure in furniture manufacturing.” (More at the NIOSH Science Blog.)
  • Obama ordered a review of chemical plant rules
  • CSB called out OSHA “for failing to implement several of the board’s long-standing recommendations for making refineries, chemical facilities, and sugar plants safer. Discussion elsewhere: The Pump Handle, Sustained Outrage
  • Meanwhile, EPA’s Office of Inspector General criticized CSB’s backlog of unfinished investigations
  • The city of Richmond, Calif., sued Chevron over a refinery fire last year, “accusing officials of placing profits and executive pay over public safety”
  • ‘We’ve just been lucky’ with urban chemical disasters
  • Farmworkers called for increased protection from pesticides
  • Explosion and chemical hazards persist at Pilgrim’s Pride poultry plants; OSHA announced $170,000 in proposed penalties for violations at an Arkansas plant
  • A California judge ordered the state to (finally) set a drinking water standard for chromium(VI). I wrote a couple of years ago about testing and treating water for chromium(VI).
  • Photos from inside Germany’s nuclear power plants, which are all slated to close by 2022
  • And lest people think it’s only in California that people experiment with explosives in their homes, there’s a house in Ipswich, Australia, keeping bomb squads busy

I’m skipping incidents. Scanning headlines, most of the explosions and fires involved fuels and others weren’t obviously chemical in origin.

Behind the bench, storeroom managers and department coordinators play an important role in safety

By Russ Phifer

Efforts to improve safety culture in chemical research laboratories generally focus on bench chemists, principle investigators, and laboratory managers. The backbone of these labs in both academic and industrial R&D, however, is frequently those working behind the scenes in positions such as storeroom managers or chemistry department “coordinators.” The professional organization for this group of people is the National Association of Scientific Materials Managers (NAOSMM). As I attend the organization’s annual meeting in Niagara Falls this week, I’m struck by how unpretentious the members are and how much of their jobs concern safety.

People in these positions rarely have advanced degrees, and many worked their way to their current positions from other facets of the chemical enterprise. Nonetheless, they are often the primary problem solvers in their workplaces. Having attended more than a hundred national and regional meetings of various scientific groups over the past 40 years¸ I can say unequivocally that NAOSMM members are among the most active and dedicated people when it comes to encouraging safe laboratory operations. NAOSMM meeting programs are typically incredibly diverse and cover topics such as laboratory inspections, waste management, lab animal care, inventory management software, and, this week, the science behind wine making. The sessions are full, often with standing room-only crowds despite many concurrent sessions. The NAOSMM e-mail list also maintains a lively discussion on laboratory management and safety.

As we work to improve laboratory safety across the wide horizon of academic and industrial R&D laboratories, I find it heartening to know that this group has the energy, desire, and means to work behind the scenes to encourage improvement in all aspects of laboratory safety.