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Someone forgot to tell the spindly rose of Sharon sticking out of the front lawn at 104 Lansdowne Avenue: This house, like all of the houses around it, is condemned. Nothing so pink should be growing in the gray dust of these deserted streets in Florida’s Panhandle. Nothing at all is supposed to be living here, where mailboxes gape open and empty; where doors are marked with oversized red-white-and-blue badges reading “U.S. PROPERTY. NO TRESPASSING”; where a small mountain of dioxin-contaminated soil looms over the landscape. Once this was a neighborhood, a decent, close-knit neighborhood. Rosewood Terrace, Oak Park, and the Goulding subdivision were about the best places a black family could live in Pensacola in the decades after World War II. People bought quarter-acre lots, built little houses, planted gardens, harvested pecans, and stayed for years and years. It wasn’t paradise — thick tar from the nearby Escambia Treating plant, which turned pine trees into telephone poles, would bubble up from the sewers when it rained hard; and clouds of ammonia from the Agrico Chemical plant, a quarter-mile away, blew over when the wind was up. But a lot of people in the neighborhood needed jobs at those factories. “We just accepted it as a way of life,” says Margaret Williams, a retired high school teacher who grew up in the Goulding subdivision. “There were so few places black people could live in those days.” Two miles from the Agrico plant, across the railroad tracks from Williams’s old house, is one of Pensacola’s most exclusive neighborhoods, a gorgeous delta land of towering oaks and showy banks of pink and white camellias. Here, where doctors and lawyers live in houses that sell for hundreds of thousands of dollars, backyards slope down to dock houses and boat racks and white-sand strips of beach on the Bayou Texar. Kids in this neighborhood grow up on the water; the glassy green Bayou Texar is known as a prime site for waterskiing. Back in 1991, when a cleanup team from the U.S. Environmental Protection Agency arrived in Margaret Williams’ neighborhood and began excavating contaminated soil from the land around the Escambia Treating plant, Melonee Olsen read about it in the Pensacola News Journal. To Olsen, who has lived on the Bayou Texar since 1967, the trouble seemed remote. “I never thought of a plume coming from that area over here,” says Olsen, a gracious, white-haired woman. “I knew those people were facing problems. I figured everything that could be done for them was being done.” Margaret Williams and her neighbors didn’t see it that way. In a yearlong emergency operation starting in 1991, EPA crews dug up about 250 cubic yards of polluted dirt at the Escambia Treating site, piling it in a huge L-shaped mound. The excavated soil was contaminated with dioxin and pentachlorophenol, by-products of the wood treating process. People from the neighborhood have a name for the pile — the tallest topographical landmark in Pensacola — now covered with a tarp weighed down with old tires: “Mount Dioxin.” After the EPA showed up, Williams and her neighbors started thinking about the rashes, breathing problems, birth defects, and cancers that their families had suffered over the years. Most everyone, Williams says, concluded that the chemicals from Escambia and Agrico were to blame. In 1992 residents organized Citizens Against Toxic Exposure (CATE), with the deceptively mild-mannered Margaret Williams as president. Since then they’ve battled the EPA, with help from some public interest lawyers and civil rights activists. Few Pensacola officials, and virtually no Bayou Texar homeowners, paid much attention to what became an all-consuming struggle for the people in CATE. Only fortuitous political timing won Williams and CATE their greatest victory, when the EPA in 1998 agreed to spend $22 million to buy up all of the 300 or so houses in their old neighborhood — most for less than $40,000 — and relocate all of the residents. The government also paid some moving expenses, and helped residents find, though not pay for, new houses. CATE members also tried, over the years, to get a plaintiffs’ lawyer to help them sue the old Agrico and Escambia plant owners. In this they failed. Since 1993 at least a half-dozen lawyers, including some big names in the toxic torts bar, considered representing the people who lived near the Escambia and Agrico sites. They all decided not to proceed, for a variety of perfectly justifiable reasons. Most say that they wish they could have helped Williams and her neighbors, but toxic torts litigation is a risky, expensive business, and this case had almost every problem a toxic torts suit can have. No catastrophic spill or gas release to explain exposure. No signature disease, not even a discernible cluster of similar cancers. No indisputable source of contamination. No obvious deep pocket. “You look at a case like this and you say, ‘Oh, God. Another impossible case,’ ” says Christian Hartley of Ness Motley Loadholdt Richardson & Poole, the South Carolina asbestos and tobacco powerhouse. Hartley rejected CATE’s case in 1998. “ There’s so much you want to do for people like this,” he says. “You want to give everyone the chance to fight back. But every case can’t be the charity case.” By last August, even CATE’s last remaining hope, a young Washington, D.C., lawyer who specializes in civil rights cases, was talking only about a long-shot suit against the EPA for undervaluing the homes the government bought. “Obviously it’s an uphill battle,” the lawyer, David Branch, said at the time. “But from a moral standpoint, what happened to these people is just not fair.” Then, last fall, everything changed. Not much surprises Margaret Williams, who in her years leading CATE has become an avowed racial conspiracy theorist, but even she was stunned by what happened in October, when the Conoco letters went out. Back in 1997, the EPA had reached an agreement with Conoco Inc. and Agrico Chemical on the cleanup of groundwater contaminated by the old Agrico plant. (CATE, without support from any other group in Pensacola, had tried to block the deal.) In October, in accordance with the EPA agreement, Conoco sent letters to about 45 Pensacola homeowners with deep-water irrigation wells. Conoco warned that the wells might be contaminated by underground plumes of chemicals, and recommended that residents stop using them. People who called the Conoco representatives to whom the letters referred them learned that the company was offering $5,000 to residents who would allow the company to cap their wells. As it happened, the letters went out mostly to people in East Hills, an integrated, middle-class community just east of the Agrico plant, and to people who live in the Bayou Texar area, the exclusive, waterfront neighborhood. In a matter of weeks one of Pensacola’s best-known and most successful plaintiffs’ lawyers — Michael Papantonio of Levin, Middlebrooks, Thomas, Mitchell, Echsner, Proctor & Papantonio — had signed client agreements with a dozen people who had received Conoco letters. By late November, Papantonio had brought his friend Jan Schlictmann, the hero of “A Civil Action,” to Pensacola to speak at a town meeting about underground contamination from the Agrico and Escambia sites. By early January, with more than 100 clients signed up, with the city and the local utility company talking about hiring him, with toxic torts expert Alan Cantor added to his team, Papantonio was cutting a television commercial in which he decries Conoco and Agrico for permitting the toxins from the Superfund site to endanger the Bayou Texar. “This is a $300-$500 million case,” Papantonio says. “They had a duty, they breached that duty, they have to pay damages.” Papantonio, a handsome, whirling dervish of a man in a double-breasted Armani suit, plans to avoid all the complications of the traditional toxic torts case, those troublesome details of exposure and causation. “I just have to get them to the table,” he says. “Then on the resulting damages I hit a home run.” In a contingency fee system, plaintiffs lawyers are the gatekeepers, the initial determiners of a civil suit’s worthiness — which is to say its worth. The plaintiffs’ lawyers who investigated CATE’s toxic torts claim and turned it down (including at least one lawyer from Papantonio’s firm) aren’t villains. They’re realists. The cost of developing a suit for Mrs. Williams and her neighbors — conducting epidemiological research, doing soil, air, and water sampling, finding experts, writing briefs to withstand junk science dismissal motions — would far outweigh the potential recovery. “It’s important that a system be able to screen out cases that are not worth prosecuting,” says Yale law professor Peter Schuck. “From a societal point of view it’s important that we not devote more resources to a litigation than it’s worth.” Civil justice, in other words, is a business proposition, a truism illustrated nowhere more brutally than in Pensacola. Just as no one really knows what the health effects of the toxins were on Williams and her neighbors, neither does anyone really know what damage, if any, the chemicals that have traveled underground to the Bayou Texar have caused. The harsh truth, however, is that the loss of property value in a neighborhood of expensive homes is a lot easier to prove in court than Mrs. Williams’s suspicion that chemicals killed her parents and two of her babies — and thus a lot easier to litigate. Williams and her chief lieutenant, a white Pensacola environmental activist named Frances Dunham, met with Papantonio in December, after he learned of their long and futile search for a lawyer. He promised them that he’d take care of CATE, that he’d make no deal with Conoco and Agrico without making sure CATE members got some money. Williams and Dunham were reassured, if not entirely trusting. It still galls Williams, though, that all this action has come only because the chemicals finally reached the rich people. “That’s what’s so disturbing,” says Deanne Ottaviano, an associate at Washington, D.C.’s Arent Fox Kintner Plotkin & Kahn, who has been providing pro bono regulatory advice to Williams and CATE since 1995. “Our people feel so betrayed. Everything they suspected about the system turned out to be true.” The Bayou Texar, one of the still water cuts in Pensacola’s coastline, first began to see concentrated residential development in the years after World War II. It was a beautiful place to live. “The water was so clean, there were dolphins here,” says Helen Payne, who bought her house in 1955. “Shrimpers came, oystermen came. There was so much fish and wildlife.” Even then, the neighborhood was only a few minutes’ drive from the airport and the strip malls, but, says 35-year resident Melonee Olsen, it felt much farther away. No black people lived on the Bayou Texar in those days, nor in any of Pensacola’s more expensive places to live. For neighbors, blacks got factories instead of dolphins. Both the Agrico Chemical and Escambia Treating plants were already in operation right after the war, when black families started to move into the neighborhood sandwiched between them. The Agrico plant, which manufactured fertilizer, had a succession of owners, including Conoco and then Agrico, which shut it down in 1972. People who lived nearby got used to the plant’s ammonia smell and to the occasional releases of sulfuric gas. They didn’t pay much attention to its wastewater, however, which was always just discharged to four nearby ponds. Wastewater from the Escambia Treating plant was a more obvious problem for the people who lived in the northern section of the neighborhood. The plant processed Southern Yellow Pine trees, soaking them in tar and creosote until about 1970, pentachlorophenol dissolved in diesel fuel after that. When Escambia Treating’s co-owner, Charles Soule Sr., was mayor of Pensacola in the early 1960s, he made sure the sewer lines ran out to the plant for wastewater disposal. But people from the neighborhood still talk about the treated wood being stacked to drain against a fence on the north edge of the site, right along the border of the backyards of houses in Rosewood Terrace. The Escambia Treating Company shut down the Pensacola plant in 1982. Charles Soule Jr., a Harvard Business School graduate then known as “Chunky,” had taken over and reorganized the family business. In the mid-1980s he sold the Pensacola plant and some other property to the employee stock ownership plan for $2.2 million. “I didn’t think [pollution in] Pensacola was a problem,” says Soule. The ESOP, claiming he did know, sued Soule for fraud. The ESOP won a $2.1 million judgment after a 1990 trial, but Soule filed a countersuit that is still outstanding, and has never paid the judgment. Although Soule, now a consultant for distressed businesses, says he’s unaware of any health problems caused by waste runoff from the wood treatment, he concedes that the process involved some nasty byproducts. “People just didn’t know a lot in those days. The whole industry, the way wood preservation works, it poisons the wood. Everywhere around any wood preservation plant, there are problems.” Escambia Treating had a long history of difficulty with the EPA. Beginning in the early 1980s, the agency bombarded the company with warning letters and notices of violation. Finally, in 1990, an inspection team arrived at the abandoned plant. “The information obtained during this investigation,” EPA documents note, “indicated that a removal action was needed to address contamination at the site.” Over the next year and a half, this “removal action” created Mount Dioxin. It also engendered the neighborhood’s conviction that toxic chemicals were the source of all their problems. It had long seemed to residents that there was something strange about where they lived. “It was nothing you could put your finger on,” says Jimmy McWaine, who lived in Oak Park for 39 years. “Young people and old were dying, though.” No one had suspected the plants — Williams says no one knew much about environmental contamination — but when EPA workers arrived in containment suits, people started to wonder. The government’s on-site testing at Escambia Treating, according to EPA documents, turned up pentachlorophenol, benzene, arsenic, and dioxin — chemicals that can cause an increase in the risk of skin cancer and leukemia, as well as damage to the liver, kidneys, central nervous system, and immune system. Residents heard the list of diseases and thought back nervously about their own families’ medical histories. The EPA insisted, especially in the early 1990s, that contamination was limited to the site itself. “You could see the creosote sludge down 30 feet, but you didn’t see the flow northward [toward the homes],” says Paul Peronard, who headed the EPA emergency response team in 1991 and 1992. “You could smell a bunch of stuff,” he says. “We also found that every time it rained the sewers would back up … . If you lived there in the sixties, seventies [before the plant shut down], you were probably sucking in a decent amount of creosote, pentachlorophenol, who knows what else,” Peronard continues. “But I looked at the site and I said, ‘If there are past exposure issues, and there probably are, I can’t do anything about that.’ I’m not sure that justice is our business. Environmental cleanup is.” Margaret Williams has a high-pitched, quavery voice that she almost never raises. She doesn’t have to. In more than 30 years of teaching high school in Pensacola, she perfected the art of getting people to listen to her. Williams is what used to be called a lady of the old school, almost always in a dress and low heels, hair perfectly done. Pretty much everyone calls her Mrs. Williams, as if she were still teaching; and like any good teacher, Mrs. Williams makes people want to do their best for her, which is probably why she turned out to be such an effective leader for CATE. If Williams and her neighbors can be called lucky in any sense, it was in the timing of the EPA’s removal action at the Escambia site. Maybe Pensacola didn’t pay attention to CATE, but Washington, D.C., did. In cities all over the South, just as in Pensacola, African Americans had been segregated into neighborhoods ringed with industrial sites that had become federal Superfund projects. By the early 1990s environmentalism and civil rights had merged into the burgeoning environmental justice movement, which sought to redress the discrimination that left minority communities disproportionately exposed to environmental toxins. CATE, a well-organized group united behind an irresistible leader, became a darling of the movement; Mrs. Williams joined the board of the National Environmental Justice Advisory Committee and made appearances around the country. Well-meaning environmentalists — and public interest lawyers — swarmed all over CATE. Through civil rights advocate Connie Tucker of Atlanta’s Southern Organizing Committee, the group attracted the attention of Washington, D.C.’s Lawyer’s Committee for Civil Rights, which, in turn, alerted Washington, D.C.’s Arent Fox to CATE’s cause. “We pulled out all the stops on the political front,” says Arent Fox associate Ottaviano, who devoted more than 2,000 pro bono hours to CATE. The EPA had named Pensacola an environmental justice pilot project in the early 1990s, but was continuing to balk at relocating the entire community by 1995 when Ottaviano got involved. Ottaviano applied the tactics she uses for paying clients, even once tracking down President Clinton’s environmental adviser at a party to lobby her about Pensacola. Pressure on the EPA to relocate residents came from Congress, the administration, even the EPA’s own ombudsman. Says Ottavian “The EPA staff told us they’d never been involved in a case that was so political.” Ottaviano also did more conventional legal work for CATE, including an attempt to block the EPA’s deal with Conoco and Agrico, the companies responsible for the cleanup of the Agrico site. By 1995 the agency had already signed off on a plan for the soil around the old fertilizer factory, but groundwater — which EPA had found to be contaminated with fluoride, arsenic, and lead — was to be addressed separately. The government was proposing that the contamination in the groundwater be permitted to attenuate naturally, arguing that as the plume of contamination traveled underground, it would essentially clean itself. CATE’s technical adviser, a firebrand scientist named Joel Hirschorn, prepared a study asserting that the Agrico plume would soon merge with a groundwater plume from the Escambia Treating site, and that both were headed fast for the Bayou Texar. Ottaviano filed formal objections to the EPA’s Agrico groundwater cleanup plan and asked federal and local groups for help in forcing the EPA to adopt a more aggressive approach. In 1995 and 1996 Frances Dunham, CATE’s link to white Pensacola, took Hirschorn’s doomsday study to Bayou Texar residents to try to persuade them that Agrico was their problem, too. “We thought it would be such a powerful coalition — CATE and the wealthy white homeowners,” says Dunham in her trademark caustic drawl. “I thought it was the ideal way to block the EPA, with black and white groups, people of all income levels. But they just kind of stared blankly at me … . We had [Hirschorn] here for a meeting. Nobody showed up.” With CATE alone lobbying against it — Ottaviano’s motion to intervene was ultimately denied by the court — the EPA, Agrico, and Conoco won court approval for the natural attenuation cleanup plan in early 1997. The more time people spent with CATE members, the more credence they lent to residents’ health claims. Arent Fox’s in-house scientist, Robert Edwards, worked closely with Ottaviano on the case. “There was such a cocktail of contamination — lead, sulfuric acid, creosote, diodrine, dioxin,” he says. “It’s hard to pinpoint one particular disease. The contaminants had synergistic effects, weakening the immune system, causing all sorts of problems.” But proving the health claims in a toxic tort suit was beyond the power of Ottaviano and CATE’s other public interest advisers. Grover Hankins, a professor at the Texas Southern University Thurgood Marshall School of Law with a sideline in finding lawyers to represent minority communities in environmental justice cases, tried and failed to find someone for CATE. “I talked to at least three firms,” says Hankins, who has impressive contacts in the toxic torts bar. “The case had statute-of-limitations problems. In most toxic torts cases, there’s a discovery rule that says that when you knew or should have known there was contamination, that’s when you should have filed suit.” By 1997 or 1998, when Hankins was matchmaking for CATE, time was already running out on Florida’s four-year statute. “Law firms just don’t want to get involved in a fight like this,” he says. “You spend three or four years on procedural issues, then maybe you lose… . You’ve got to spend the money to show a nexus [between the toxic exposure and disease]. Then maybe your experts get thrown out,” he continues. “Turning down this case makes business sense for [plaintiffs' lawyers] even if it doesn’t make humanitarian sense.” It can cost a plaintiffs’ lawyer hundreds of thousands of dollars simply to conduct full-scale testing to determine how (or if) contaminants made their way from industrial sites to residents’ bodies. Then there’s the cost of full-blown epidemiological studies to establish an elevation of disease in the affected region, and the cost of medical experts who can attest to a cause-and-effect relationship between the toxins and the disease. The litigation itself is typically motion-intense, and there’s always the risk that an unfriendly judge will dismiss the case on “junk science” grounds. If the case survives, and even if causation is unassailable, there still has to be a defendant with enough money to make a plaintiffs’ lawyer’s investment worthwhile. Plenty of lawyers came to check out the case in Pensacola. All found reasons to walk away. Williams’ first call was to Frederic Levin of Levin Middlebrooks, Pensacola’s most famous plaintiffs’ lawyer. Levin told her he couldn’t help because he once owned a small piece of land at the Agrico site, and thus had a conflict. Linnes Finney, Jr., of Miami’s Gary, Williams, Parenti, Finney & Lewis, visited Pensacola in 1993. He was worried about causation. “Based on the information provided,” he wrote Williams 10 days after his visit, “there exists no medical proof that any alleged exposure caused any alleged injury, loss, or sickness.” Palm Beach, Fla., lawyer Malcolm Cunningham Jr., who usually handles construction accident cases, was more enthusiastic about causation, especially after touring the neighborhood with Williams in 1995. “There had to be a health impact. You could smell it,” he says. “It was in the air.” But Cunningham had doubts about recovering anything from Charlie Soule or Escambia Treating. “I did an investigation, but I couldn’t find evidence of an insurer,” Cunningham says. “This was going to be massive, massive litigation. The reward had to have been huge.” Cunningham says he hated to turn down the case, but had to. “Unfortunately it boils down to a business proposition for lawyers who take cases on contingency,” he says. “For us, it just didn’t seem like a good business decision.” Gerson Smoger, who represented the families of Times Beach, Mo., shook his head when he looked at a map of the neighborhood in Pensacola and saw all the sources of contamination. He says he kept imagining all the defendants he’d be facing, and all the difficulties of establishing who was to blame for which diseases. “This case had difficult proof problems, very expensive proof problems,” Smoger says. “The case the lawyer wants to take is one area, one or two chemicals, a cluster of similar injuries. The problem here is, there were so many chemicals, everything is going to be there.” The neighborhood’s last, best hope for a toxic torts suit came in 1998 from an unlikely would-be champion named Samuel Bearman. Bearman, 49, is a sole practitioner, Pensacola-born and bred, a personal injury specialist who practices out of a three-room storefront office on a leafy side street. He talks almost wistfully about what might have been his escape from roughly 25 years of car crash cases. Bearman first heard of CATE from newspaper stories about Mount Dioxin, and from a black paralegal in his office who told him of the group’s problems finding a lawyer. Intrigued, Bearman called Margaret Williams, and asked her to arrange a meeting of residents. She did, and was impressed. “He said if they can prove cigarette smoke causes cancer, we ought to be able to prove these pollutants were bad for you,” Williams recalls. Bearman started by requesting the EPA sampling reports and risk evaluation documents from the government. He also went to the federal courthouse in Pensacola to look for records on Escambia Treating and Agrico. Charles Soule Jr. didn’t hold much promise, but Conoco and Agrico both had money. “I remember thinking some owners were viable defendants,” Bearman says. “That was an encouragement. The question of deep pockets was answered. “The next step,” he continues, “was to see if we could develop a pattern of incidence. Mrs. Williams gave us a list of CATE members. We wrote letters to a few hundred people, asked them to come in and give their medical histories.” Bearman hired two paralegals, who met with between 50 and 100 people from the neighborhood. He requested detailed medical records on about 25 chronically ill residents who believed their ailments were attributable to the contaminants. Then, in late 1998, Bearman packed up all the EPA and medical records and sent them to an expert recommended by Ness Motley, which had agreed to work with him on the case if it was viable. Christian Hartley, the Ness Motley associate consulting with Bearman, picked Dr. Edward Holstein to evaluate the records. “Holstein is fairly conservative,” Hartley explains. “I like to run cases by a conservative doctor. That’s what you want — you don’t want a person who believes every exposure to every chemical is bad.” Holstein, affiliated with New York City’s Mount Sinai Hospital, runs an environmental exposure consulting practice in Cambridge, Mass., specializing in asbestos patients. He has also consulted in several toxic tort cases for plaintiffs’ lawyers. Holstein went through the records Bearman had sent him, retracing the EPA’s exposure and dose-effect analyses. He looked for signature diseases in the medical histories, and for patterns of similar illnesses in the neighborhood. He found none. “There were three fatal flaws,” Holstein says. “There was not enough exposure [to any of the toxins], based on already exaggerated estimates [made by the EPA]. The particular ailments demonstrated differ from what these substances are known to cause. And the ailments differ from each other. The burden of proof was insuperable for the plaintiffs, unless there were terrible errors in the testing — and that’s coming from a plaintiffs’ witness!” Once Ness Motley’s Hartley heard Holstein’s assessment, he told Bearman his firm wasn’t interested. “It’s not a clean case,” he says. “You’re left with a case where you’re arguing that a toxic soup weakened their immune systems. Imagine the difficulties in explaining that to a jury.” Bearman had had his own doubts about the health claims. When Holstein’s report came in, he figured the only issue left was property damages. Homes in the neighborhood were now worthless; no one wanted to buy a house in the shadow of Mount Dioxin. But by 1998, in a series of concessions, the EPA — under intense political pressure — had finally agreed, despite its own doubts about the level of contamination in the neighborhood, to buy all of the residents’ homes. Plenty of people thought they’d been shortchanged by the EPA’s valuation process, but Bearman says he didn’t see any way CATE members could win a property value suit. In early 1999 he wrote Margaret Williams a letter telling her he couldn’t go forward. “Civil Inaction, Part II”

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