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Judge Rejects Collier Companies' Bid To Toss Creosote Lawsuits

Jun 5, 2004 | Naples Daily News

For the second time in six months, a Collier County judge has rejected requests by two Collier family businesses to dismiss a cluster of lawsuits over tainted creosote water in the old mill town of Jerome.

On Friday, Circuit Judge Ted Brousseau denied a motion by Collier Enterprises Inc. and Collier Development Corp. to toss out 50 separate lawsuits filed by current and former Jerome residents, mill workers and their descendants.

The plaintiffs allege that the two businesses and their corporate predecessors failed to adequately clean up groundwater contaminated by a 1956 fire at the C.J. Jones lumber mill in eastern Collier County. The group includes 19 people with Jerome ties who subsequently died of cancer or brain tumors and dozens more battling an array of ailments.

"From what I can see, it's a debatable situation at this point," Brousseau said at the conclusion of a one-hour hearing in an otherwise empty courtroom. "That's what jury trials are for."

With the denial, Collier Enterprises and Collier Development Corp. now have 15 days to file answers to the formal complaints, all but one of which were filed in September 2003. Another plaintiff whose creosote-related ailments worsened was added earlier this year.

Brousseau's rejection of the motion to dismiss echoes a similar ruling from December 2003 in which the judge tossed out part of the complaint but allowed the bulk of the toxic contamination case to proceed.

In his earlier ruling, Brousseau sided with a request by the Collier companies to disallow claims for "medical monitoring" of plaintiffs who were exposed to tainted water but aren't yet exhibiting symptoms of illness.

But on Friday, the judge apologized for that ruling and said he may reverse the decision after not fully understanding the legal arguments behind those claims.

Brousseau said he heard enough to let the lawsuits proceed.

"That's enough to get past a motion to dismiss," he said. "Whether they prove it is for another day."

While residents of Jerome long suspected their water was harmful, proof of contamination wasn't established until 1989, after a Jerome man's visiting sister alerted the Collier County Pollution Control Department.

Subsequent county and state tests found several residential wells with elevated levels of four chemicals that are found in creosote, two of which are considered toxic. Collier Enterprises responded by providing bottled water, free of charge, to Jerome residents. The company continues to do so.

State regulators with the agency now known as the Department of Environmental Protection began testing the water and oversaw a Collier company cleanup as part of a consent agreement reached in October 1990.

Officials with the two Collier companies say they have complied with the state's requirements from the outset.

Creosote, a popular wood preservative derived from coal tar, has been a timber industry staple for more than a century and can be found on railroad ties, utility poles and marine pilings.

The federal Environmental Protection Agency has long recognized the dangers of human exposure to creosote. In 1978, the agency called for an industry phase-out.

EPA reversed course in 1984 after ruling that the absence of "economically viable alternatives" outweighed the risks to human health. A coalition of environmental and labor groups is now suing the government in an effort to ban creosote.

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