Poisoned

by Alan Bell

  I could only hope she’d find peace somehow. For my part, at least, the case provided me with the opportunity to educate a few more people about the harmful chemicals in our everyday environment. As I was working on Judilyn’s case, for instance, I was also researching a case involving bisphenol A (BPA). BPA is an industrial chemical that has been used in plastics since the 1960s. I told Bryan that research studies showed BPA had damaging effects on the human brain, behavior, and prostate glands of fetuses, infants, and children.

  Based on my information, Bryan and his wife stopped boiling their baby’s milk in plastic bottles—a year before the results of these studies made major news headlines. “Man has reached the point where we’re destroying ourselves and our environment,” Bryan said during one of our last conversations. “If we don’t take care of our planet, our environment, and each other, what are we going to leave for the next generation?”

  What, indeed? This is the question that plagues me.

  18 • A TOXIC WASTE DUMP DESTROYS A NEIGHBORHOOD

  IN 2005, A CASE LANDED on my desk that again demonstrated the kind of hell environmental chemicals can create for people—especially those without resources. This case hit me especially hard because it took place near my office in Fort Lauderdale, Florida, where I first became ill.

  Even decades ago, when little was understood about the toxic effects of chemicals from burned waste, the wealthy and powerful didn’t want an incinerator burning city trash and polluting the air around their homes. From the late 1920s through the mid-1950s, the City of Fort Lauderdale incinerated the area’s household and industrial waste in a municipal facility they built inland, in an area called Lincoln Park.

  In 1938, Florida officially designated this same area as a “Negro” district; it would eventually include the communities of Lincoln Park and Wingate Road. Though never stated outright, the plan was designed to allow white people to live by the ocean, where sea breezes break the sweltering humidity, while relegating blacks to living inland. If you were black, you had no choice but to live close to the incinerator; blacks couldn’t even visit the white areas of town past curfew without obtaining a permit based on a specific purpose for being there, such as a landscaping job or maid service.

  This was true even during natural disasters. For instance, when the powerful 1926 Miami hurricane struck, white members of the community were advised to go to public shelters set up by the government. The blacks were forbidden to use these shelters and were instead advised to seek refuge at the incinerator site.

  In 1954, the United States Supreme Court’s decision of Brown v. Board of Education banned segregated schools. Around the same time, the Lincoln Park incinerator was deemed no longer efficient in accommodating the city’s waste. It was shut down and razed. A brand-new elementary school and community park were built on land that was originally part of this incinerator site.

  The school and park were literally sitting on top of piles of ash. Children often played on the ash piles, sliding down on them and building forts from the debris they found. It was the only place to play in the neighborhood. Later, it was discovered that the layer of ash beneath the community park was ten feet deep. The ash was often placed into large dugout pits and covered up. After the school was built, students were often instructed to pick up trash and debris in the playground.

  A new city dump and incinerator were built a mile away, still in the City of Fort Lauderdale’s designated “Negro” district. This time the trash was burning in the community of Wingate Road. From 1954 until its closure in 1978, this incinerator burned about 480 tons of household and industrial waste every single day.

  The Wingate Road incinerator’s closure was the result of its violation of the Clean Air Act regulations. Hot ash was being dumped into a cooling pond at the site until the bottom of the pond eventually became impermeable. During heavy rains, the polluted pond overflowed into the backyards of the homes surrounding the site. The locals nicknamed the pond “Lake Stupid.”

  As a solution, city leaders decided to build a trench that drained the water into Rock Pit Lake. This was an especially unfortunate decision, given that many of the area’s most impoverished families caught fish in that lake to supplement the food they could afford on their meager incomes.

  Leola McCoy, a community leader, uncovered alarming documents proving chemical contamination at the Wingate Road site in 1984. The incinerator ash and the ground around it—where children had been playing for decades—was toxic. She pestered government officials until Wingate Road and Lincoln Park were both designated US government “Superfund” sites in 1989. This designation amounted to an acknowledgment by the government that the site was tainted with harmful chemicals and a promise to clean it up.

  That never happened. In 1996, the US Department of Health and Human Services reviewed census data from 1981 to 1990 and found that Wingate area residents suffered from a higher incidence of pancreatic, prostate, kidney, breast, and eye cancers than other Florida residents statewide.

  “Environmental remediation” is a governmental phrase used to describe the process of cleaning up waste and pollution from toxic areas and making those areas safe for human habitation. The community park at Lincoln Park had supposedly been environmentally “remediated” by placing a plastic cap over the Wingate Road incinerator site. However, many residents, as well as lawyers and scientists who later examined the area, were convinced that the area was unsafe for human health because the ground was still poisoned.

  • • •

  In 2005, I received a call from a real estate lawyer in my old stomping grounds, Broward County, about the situation in Lincoln Park and Wingate Road. This attorney didn’t do toxic tort litigation, and when a group of area residents contacted him about it, he thought of me. He knew I’d been working with Masry and Vititoe.

  “I don’t know what to do with this case, Alan,” he said. “Can you help out with it?”

  I listened to his account of events and, after I hung up, began doing a little investigating of my own. I was infuriated that, once again, the people most at risk were those who had so few resources. People were getting sick and dying in that neighborhood, and nobody was doing a thing about it.

  One of the most damning pieces of evidence I uncovered was a report issued in October 2005 by the US Department of Health and Human Services. Their Agency for Toxic Substances and Disease Registry disclosed that, around Lincoln Park’s incinerator site, “both non-yard and yard soils (0 to 3 inches deep) contained arsenic and carcinogenic congeners of polynuclear aromatic hydrocarbons (PAHs) and dioxins above the residential Soil Cleanup Target Levels.” What’s more, ash from the incinerator contained metals and by-products of burning.

  “On-site soil samples from 6-24 inches and below 24 inches showed higher chemical levels,” the report went on. “Therefore, past exposure to the ash itself or the ash layers before they were covered (especially if exposures occurred daily, over long periods) caused adverse non-cancer health effects from ingestion of arsenic, copper, and lead.”

  Despite this evidence, the government concluded that “the health hazards are indeterminate because we do not know if, or for how long, people were exposed to this ash, or at what levels the exposures could have occurred.”

  Translation: the government claimed not to know how dangerous the Lincoln Park incinerator site was to the families who lived around it, despite the poisons that were visibly spewing out of those smokestacks for years.

  “Hey, Ashlee,” I said after digesting the report. “How would you like to take a trip to Florida with me?”

  “Sure, Dad,” she said.

  Ashlee was seventeen by then and a high school junior. She was beautiful inside and out, with an exceptional social conscience and a genuine concern for other people. As she began thinking about college applications, I discussed the possibility of law school with her. I thought she’d make an excellent lawyer.

  “I don’t want to be a lawyer, Dad,” Ashlee said. “I don
’t like fighting.”

  “Lawyers don’t just fight,” I said, though naturally I understood how she might have that impression after living with me. “We write contracts, do appeals, and even put together deals for movie stars. Most of us never even set foot in a courtroom.”

  She wouldn’t budge on the subject. I hoped that bringing Ashlee with me to Florida and involving her in this case might help her reconsider a career in law.

  • • •

  Community resident Leola McCoy had been fighting to clean up the areas around Lincoln Park and Wingate Road for twenty years by the time I met her. Meanwhile, a new generation of community activists had risen to join her. One couple I worked with, Mickey Hinton and his wife, Joan, attended Lincoln Park Elementary School and grew up playing on those toxic ash piles. Their personal backgrounds, combined with their leadership skills, made them committed and trusted community advocates.

  As Mickey toured us around the Lincoln Park and Wingate Road neighborhood, I watched Ashlee closely. These struggling neighborhoods were a far cry from my parents’ Miami Beach condo and our own home in upscale Capistrano Beach, California. She seemed deeply affected by the evident poverty.

  At one point, Ashlee turned to me and whispered, “In school, we read about the Civil Rights era in the 1960s. They say segregation doesn’t happen anymore, but that’s not true, is it, Dad?”

  “Yeah, it’s still going on, honey,” I said.

  I’d been thinking the same thing. Growing up in South Florida in the 1960s, I had seen the sunny side of the American dream. Yet, I couldn’t forget how my own mother had driven my brother, sister, and me around at Christmas to look at the decorations, always making a point of driving past the country clubs with signs reading “No Jews or Negroes Allowed.” Now that I was older and had been through so much, I understood the injustices experienced by people in impoverished neighborhoods not only intellectually but also viscerally: I felt them.

  As Ashlee said, you might be told such places and prejudices no longer exist, but once you see this stuff with your own eyes, you cannot unsee it. Environmental health is the new civil rights issue because it so often violates the rights of low-income people—often people of color—more than the rights of any other population.

  After our tour, Mickey led us to the local Baptist church to meet with other community leaders and residents. They talked with us about the diseases they suffered from, including rare types of cancer and numerous reproductive issues. They also told us about the illnesses and injuries afflicting their aunts, uncles, mothers, fathers, sons, and daughters. Many family members had fallen ill and died tragically young. There was an epidemic in this neighborhood, all right, and its source was that incinerator. These people were getting screwed because they had no voice.

  Mickey also led us around the neighborhood to knock on doors. We asked the residents to speak with us about their family’s health for a few minutes. They trusted Mickey, so they invited us inside their simple, rundown homes while they bared their souls.

  • • •

  It turned out I wasn’t the only environmental attorney interested in the case at this time: Jan Schlichtman was also trying to move it forward. I met Schlictmann in Florida in 2005 for the first time, but I had heard about him years earlier.

  While I was in Florida investigating how to file suit against the City of Fort Lauderdale, Jan was also there, giving a speech. The director of the neighborhood health services shared the story of Lincoln Park and Wingate Road with him afterward.

  Jan and I began collaborating on the case. Unfortunately, neither he nor I had the deep pockets to fund a lawsuit against the government, but we were both eager to do the heavy lifting necessary to build the case legally. Once that was done, we hoped to package the case in a way that would tempt a wealthy law firm to take it on, even though Florida law limited the amount of recovery to peanuts when suing the government.

  “It was a known contaminated site, a known neighboring community, and clearly a very high water table and flooding,” Jan said. “A whole different mixture of contaminants, a lot of metals, and other unknown materials were present in the ground.” We had lots of questions and very few answers. How could we find those answers? It takes time, money, and resources used in a certain way to do that.

  We did our best to help the community approach the problem. We counseled them on how to gather information, especially neighborhood demographics, health statistics, and a history of site violations. Much of this information was in the public domain; it was just a matter of digging for it.

  • • •

  There was trouble here of all kinds. However, as much as I wanted to help these people, I was stymied by the Florida laws governing their legal remedies. Florida’s sovereign immunity statutes made it difficult for these people to bring a legal case.

  Subsection 5 of Florida sovereign immunity statute 768.28 stated, “neither the State nor the agencies or subdivisions shall be liable to pay a claim or judgment by any one person which exceeds the sum of $200,000, or any claim or portion thereof, which when totaled with all other claims or judgments, arising out of the same incident, exceeding the sum of $300,000.” In other words, no matter how egregious the City’s actions had been, the limit of its liability was $300,000 in total for all victims combined. The amount of expenses involved to sue the city would far exceed that amount, leaving the victims with less money than before. To make matters worse, attorney fees were capped at 25 percent of any damages recovered. This meant no law firm would earn over $75,000 for bringing the case to court.

  We went to work anyway, trying hard to convince various local law firms to take the case for this amount, or even pro bono. No one was willing to do it. I understood why: these local lawyers were hitting the same brick wall. It was one thing for them not to be paid enough to cover the cost of the case, but when you factor in the injured residents not getting any compensation, there was no way to justify pursuing the claim.

  By 2006, we had exhausted every avenue. I had to inform Mickey and the community that we couldn’t see any way to help them.

  In the end, it wasn’t Schlichtmann or me who got the City to take notice of this community’s problems. It was Louise Caro, a young law student, who began working on this case before she even took the bar exam.

  • • •

  Louise Caro never meant to become a lawyer. She was drawn to study science by a strong desire to make a difference in the quality of people’s lives. She earned a bachelor’s degree in environmental studies and went to work for a medical device company.

  Her tasks involved working on endocrinology and thyroid assays used in hospitals, typically after patients suffered heart attacks. Before long, however, it seemed to Louise that her scientific work was leading nowhere. Her work seemed to vanish into the ether. That’s when it hit her that maybe she should become a lawyer; she could use her scientific background in combination with the law to help people.

  During law school, Louise took a job at the local Legal Aid office—a group of attorneys representing indigent clients who can’t afford to pay their own legal fees. As she worked with the residents of Lincoln Park and Wingate Road, it quickly became clear to her that they desperately needed help.

  “There were a lot of multigenerational families in that neighborhood,” she observed. “A lot of people in that community stayed because this was their home.”

  The residents wanted to “deal with their health problems, clean up their neighborhood, and make it a better place to live,” she added. “That was the right thing to do.”

  Louise’s work with the Lincoln Park and Wingate Road communities overlapped with my own involvement. Her resolve to help the residents never wavered. She also had advantages I lacked, because she lived in the neighborhood. She wasn’t going anywhere. This was her home. People trusted her.

  Eventually, Louise graduated from law school, earning the Outstanding Local Government Law School Student award from the Florida Bar. She con
tinued working with the Legal Aid office and, as she helped various residents untangle their legal problems, she kept an eye on the neighborhood health issues.

  Legal Aid functions as a private attorney general for low-income individuals, protecting the community with the full force of law. In her capacity as a representative for various residents, Louise was able to obtain relevant reports generated on the area by the Department of Health and the Environmental Protection Agency.

  In 2007, just as Louise was contemplating her next career move, a report by the Florida Department of Health landed on her desk. This report—funded by the Agency for Toxic Substances and Disease Registry—addressed the Lincoln Park incinerator site. Based on the chemicals in the soil samples they’d taken, and the amount of time that had passed, the report concluded that everyone living near the incinerator site was at risk for serious health problems.

  While most people assume the government releases all relevant information to those who request it, this is far from the truth. What Louise discovered in this report was something nobody else had been alerted to: the fact that, in 1997, the City of Fort Lauderdale considered selling off the Wingate Road incinerator site. In doing so, they were required to perform environmental testing on the soil. The report concluded the ground was contaminated. The City decided against selling the property because the report would have been disclosed during the sale, raising too many red flags.

  The implication of this report was abundantly clear to Louise: the City of Fort Lauderdale had known since 1997—a full ten years—that the Wingate Road site was poisoned. Yet they had failed to warn the residents. To avoid detection, the City had ceased all testing in the area. They didn’t want to attract any undue attention to the problem.