What is this Class Action
Lawsuit About?
A lawsuit has been filed by the
law firm of Kantrowitz, Goldhamer & Graifman, P.C., together with
three other firms, on behalf of a plaintiff and a proposed Class of
persons and public entities, who have existing on their properties
and/or have thereby been exposed to CCA pressure treated wood including
playground equipment, playset equipment and/or decking constructed of
CCA pressure treated wood. The action has been filed in the U.S.
District Court for the Southern District of Florida, Miami Division.
In this action, plaintiff seeks
relief against Defendants for their sale and distribution of CCA treated
wood, a hazardous product, without the proper notices required and
agreed to by Defendants in previous proceedings by the Environmental
Protection Agency ("EPA") and for distributing a dangerous
product used by plaintiff and Class members or their children.
Plaintiff filed this
consumer-based class action lawsuit on behalf of a class of persons and
public entities, who purchased, maintain or have, existing on their
properties, pressure treated wood--which contains a combination of
chromium, copper and arsenic -- for playgrounds, playsets, decks and
similar outdoor products treated wood and/or lumber which was designed,
manufactured, marketed, distributed, sold and/or advertised by
Defendants. Also included is a subclass of individual class
members' immediate family members who have been exposed to or have come
in contact with the CCA products.
The subject matter of this action
has received widespread public coverage since the date of filing of this
suit. Indeed, no less an elected
official than Florida Senator Bill Nelson publicly expressed his concern
over the real and present safety issues presented by the unmitigated use
of CCA treated wood, for playgrounds, playsets, decks and similar
outdoor products. Similarly, William Hinkley, Director of the
Solid and Hazardous Waste Division of the Florida Department of
Environmental Protection, has stated that "There's a lot more
arsenic coming out of this wood than anybody ever realized...our concern
is significant and growing." Furthermore, Florida Governor
Jeb Bush instructed the State's wood treatment plant in
Railford to cease its use of CCA for specified outdoor structures.
Recent independent studies in Florida and around the country support the
fact that CCA chemicals do leach out of the wood and can be transferred
to individuals through direct contact.
What is CCA Treated Wood?
The CCA preservative known as
chromated copper arsenate, is a mixture of arsenic, copper oxide, chromic
acid and water for use in wood products and lumber, which, when
infused into the wood and/or lumber, creates a treated wood commonly
known under various names including: (i) "Wolmanized
pressure-treated wood", (ii) "Wolmanized pressure-treated
lumber", (iii) "Osmose K-33 treated wood", (iv)
"green lumber", (v) "green wood", (vi)
"salt-treated wood", (vii) "salt-treated lumber",
(viii) "pressure treated wood" and/or (ix) "pressure
treated lumber" (referred to collectively as "Treated
Wood").
CCA, the chemical solution used in
the wood treatment process, contains the chemical elements arsenic,
chromium and copper chemicals that enter the human body in any of four
ways, (i) skin absorption, (ii) breathing, (iii) ingestion into the
body, or (iv) penetration of the skin. The form of arsenic used in
the wood-treating solution is water soluble pentavelant arsenic.
The arsenic compounds are arsenic pentoxide, arsenic acid, sodium
arsenate or disodium hydrogen arsenate. During the fixation
process, a portion of the pentavalent arsenic also transforms into
trivalent arsenic. Both are toxic, though trivalent arsenic is
generally recognized as more toxic to humans. The chromium used in
the wood treatment process is water soluble hexavalent chromium ("Hexavalent
Chromium") in the form of chromic acid, sodium dichromate,
potassium dichromate, or sodium chromate. Hexavalent Chromium is
the form of chromium most toxic to humans. During the fixation
process, most Hexavalent Chromium becomes trivalent chromium.
What Are The Claims In The
Complaint?
Plaintiff and other Class members
purchased, used and/or were exposed to the Treated Wood which was
knowingly designed, manufactured, advertised, publicized, marketed,
distributed and sold, with defects and known potential dangers by
Defendants. As a result of Defendants' knowingly designing,
manufacturing, advertising, marketing, and/or selling the dangerous and
defective Treated Wood, plaintiff and Class members suffered injury or
have been exposed to greater than normal levels of these hazardous
substances due to Defendants' acts.
As alleged in the Class Action
Complaint, Defendants have engaged in extensive advertising, marketing
and sales campaigns promoting the supposed quality and safety of Treated
Wood. Defendants have directed those advertising and marketing
campaigns at prospective purchasers and end-users of Treated Wood
including homeowners and municipal owners of playgrounds and playsets.
Defendants knew, or had reason to know, that the Treated Wood they
manufactured, advertised, marketed and sold was defective and
unsafe. Yet, they concealed these potential dangers and
deleterious and harmful effects of Treated Wood.
The Complaint alleges claims for
strict liability for sale of a dangerous product; medical monitoring for
those who have been exposed to CCA Treated Wood; negligence for falling
to properly warn members of the class of the dangers of CCA Treated
Wood; fraud; breach of warranty; violation of the Magnuson Moss Consumer
Products Act, 15 U.S.C 2301 et seq.; and violation of the State
Consumer Fraud Statutes.
The suit alleges, inter alia,
that in 1986, the manufacturing Defendants (ie: Osmose and Hickson) and
the wood-treating defendants successfully thwarted an administrative
proceeding commenced by the EPA by expressly agreeing to give end users
of the CCA products written consumer information in the form of Consumer
Information Sheets ("CIS") which would contain warnings and
would highlight the true dangers of CCA Treated Wood. The
Complaint alleges that this program, however, was a sham and these CIS
materials were consistently never given to end users of the
products. The Complaint alleges that Defendants have, to the
contrary, embarked on a campaign of spreading misinformation and
half-truths which purport to attest to the safety of CCA Treated Wood
and distribution of such statements including, among others, that (i)
"CCA pressure treated wood is harmless to people, plants, pets and
the environment; " that "its proper use is almost identical to
that of untreated wood.;" (ii) CCA "represents a harmless
conversion of some chemicals that might otherwise pose environmental
problems;" (iii) CCA, "once fixed in the wood cells, is highly
leach resistant" and "will not concentrate in plants growing
close to Treated Wood;" and (iv) the ingestion of CCA is no more
dangerous than ordinary table salt.
The suit asserts that the arsenic
and chromium in the wood are dangerous to individuals who come in
contact with the wood and the the Defendants, in combination with each
other, lied to and concealed the truth from, plaintiff and other Class
members about this.
The Complaint further alleges that
arsenic exposure from CCA wood is harmful to humans and that such
harmful effects have been documented.
The Complaint goes on to assert
that despite Defendants' claims that the CCA chemicals do not leach out
of the wood into the soil, or that direct contact cannot result in the
arsenic being transferred, recent studies demonstrate that CCA chemical
can leach out of the wood and can be transferred by direct contact with
the wood.
What Possible Harm Or Effects
Could Arsenic or Chromium Have?
The harm from exposure to CCA
Treated Wood is the result of exposure to the constituent chemicals used
in treating the lumber and wood. The effects of arsenic poisoning
include severe gastritis, headaches, vertigo, muscle spasm. Long
range effects include severe crippling, gastrointestinal disturbances,
inflammation of the nose and throat and skin afflictions, renal failure,
substantial cognitive problems, cancer of various types, and muscle
atrophy in the legs. The effects of abnormal amounts of chromium
in the human body include severe kidney damage, nausea, vomiting, shock,
and long term effects include, contact dermatitis, skin ulceration,
perforation of the nasal septum.
Can I Find Out If The CCA
Treated Wood I Have In My Yard Can Transfer Arsenic or Chromium Through
Direct Contact?
Tests done on your wood deck or
playground equipment can tell you if the arsenic or chromium in the wood
is available to be transferred through direct contact to you or your
children. Tests can also tell you if there is arsenic leaching
into the soil from such equipment. You can contact an independent
laboratory or testing facilities in your area which can test the wood,
or contact our law firm and we can assist you in finding such a
laboratory or testing facility.
What Levels Of Arsenic and
Chromium Are Considered Elevated?
As part of a study done by the University of
Florida, approximately 65 soil samples were collected from below CCA
Treated Wood decks. Control samples from nearby locations were also
taken. The University of Florida study noted that the samples tested for
arsenic at the CCA Treated Wood sites substantially exceeded all
recommended levels. For example, the U.S. EPA soil screening level for
arsenic is 0.4 milligrams of arsenic per kilogram of soil
("mg/kg"). Florida's soil clean-up target levels for arsenic
is 0.8 mg/kg for residential areas. Yet, the arsenic levels in the soil
samples tested under the CCA decks ranged from 1.2 mg/kg 10 217 mg/kg
with an average of 28.5 mg/kg.
The study noted that "the average arsenic
concentration in the "below deck" soils was 28mg/kg whereas
the control samples averaged 1.5 mg/kg. The average chromium content for
the "below deck" soils was 34 mg/kg, as compared to less than
10 mg/kg for the control samples. The study noted that "Results of
standardized leaching tests show that new CCA treated wood leaches
enough arsenic to routinely fail the U.S. EPA's toxicity levels and that
"The overall results of the study indicate that CCA treated wood
does impact the environment during its service life by increasing the
metal concentrations of the soil." The study further noted that
"The amount of arsenic associated with CCA-treated wood currently
in service in Florida is estimated at 26,800 tons. This quantity is
enough to increase the arsenic concentration of a volume of water equal
to 130 times the size of Lake Okeechobee by 50 ug/L, which is the
current federal drinking water limit." (notably, the Federal
drinking water limit has since been reduced even further to 10ug/L).
What Can I Do If Tests Show Elevated Levels of
Arsenic Or Chromium?
If the tests of your CCA treated structure show
that elevated levels of arsenic or chromium are in the wood, you can
remove the equipment or paint or seal it periodically (e..g., every two
years). The lawsuit which our law firm has filed seeks to require the
defendants to pay for the expenses incurred by owners and end-users for
these remedial activities.
If the soil contains elevated levels of arsenic or
chromium as a result of the CCA structure, then you can consider
replacing the equipment and removing and replacing the soil.
The lawsuit filed by the firm seeks to have the
costs involved in these remedial efforts paid for by the defendants.
What Can I Do To Test Whether If The Arsenic or
Chromium Levels are Elevated In My Children or Family?
If you are concerned that continued contact with
CCA equipment or the soil directly around the CCA equipment has resulted
in exposure to elevated levels of these toxins, you can seek to have
blood, hair or nail analysis done which may indicate if elevated levels
of these toxins are present.
The suit which the law firms have filed seeks to
have the costs associated with these medical monitoring tests paid for
by the defendants.
Why Isn't A Noticed Placed Onto the Wood
Informing Me Of The Wood's Toxic Properties?
Although the wood treating industry had agreed to
give each end-user of CCA Treated Wood a notice informing them of the
toxic poisons in the wood, this has not been done. In addition, if the
sheets were given to middlemen (e.g., contractors), the information
might never be communicated to you as the end user.
Our suit seeks, as one remedy, to require that the
defenndants inscribe or "brand" into the wood a notice of the
toxic character of the wood so that you and all other end-users will be
advised of the toxic properties of the Treated Wood existing on their
property or being used by their family. This is also important in
connection with the eventual disposal of such wood since CCA Treated
Wood should not be burned or placed into regular landfill sites.
Have There Been Other Instances Of People Being
Injured From CCA Treated Wood?
There have been numerous reported instances of
individuals being injured by CCA Treated Wood. Unfortunately, many
people who may be suffering from effects of exposure may not realize the
full extent of the exposure or the results which the arsenic exposure or
chromium exposure may have had, or is having, on them. Therefore, if
unexplained illness or symptoms parallel those experienced from arsenic
or chromium exposure, testing and analysis should be considered in such
cases.
By way of example, some cases of arsenic exposure
follow:
A family residing in Northern Wisconsin was
plagued by symptoms including sensory hyperesthesia, muscle cramps,
earaches and otitis media, sinusitis, bronchitis and pnemonitis, hair
loss. It was determined that these symptoms were the result of exposure
to high levels of aarsenic caused by the combined effects of fumes and
vapors of copper chromium, and arsenic created when Treated Wood was
burned in the family stove;
In the mid 1980's an Indiana carpenter employed by
the United States Department of Agriculture to make picnic tables out of
freshly treated "salt- treated" wood was exposed during the
construction process to the substantial sawdust produced by the
intensive sawing and drilling the wood inside the workshop. At times,
the non-ventilated room became so full of sawdust that the overhead door
had to be opened to clear the air. After three weeks, the individual and
a co-worker developed nasal congestion and bleeding from the nose. In
addition, he developed symptoms including massive melena, hair loss,
cramping, fatigue and itching. While those symptoms disappeared three
months after working with the freshly treated "salt-treated"
wood, there was an immediate re-occurrence one year later when he
resumed the same task. Arsenic levels in that individuals hair and nails
was determined to be hundreds of times greater than normal.
A survey of 46 workers using CCA treated timber
for walking track construction showed that "[a]bout one-quarter of
the respondents were aware of workers who had suffered some health
problems after handling treated timber. Complaints included: skin
rashes, infections from cuts, splinters and dust, sore throats and
dizziness."
In approximately 1968, a pattern shop cut strength
test specimens from CCA treated poles. Small specimens wee machined and
planed. After approximately one week of working with this material, the
man doing most of the work went homesick with respiratory illness,
coughing, and general ill health. He returned to work after several days
of recuperation.
In January 1977, workmen who were building
prefabricated, all weather wood foundations from ACA and CCA treated
wood were coughing up blood and had developed a skin rash.
Students who were sanding CCA treated wood in a
school laboratory became ill from inhaling the CCA treated wood dust.
A Technical Representative, who was the Plant
Manager and Senior Product Development Engineer with Koppers Company,
from June 1970 to December 1980, suffered pain from a CCA splinter in
his hand that woke him up in the middle of the night and was oozing. He
was advised by the Director of Research at Koppers Company, that CCA
splinters must be taken out right away or they fester and may cause
medical problems.
The incident data system of the U.S. EPA shows the
following reports of injury from CCA treated wood:
(1) "In an incident report received 8/1/91, a
Florida man handling treated lumber, which was not properly marked with
warnings, reported severe injury. He experienced itching, burning
rashes, neurological symptoms, and breathing problems."
(2) "In a report dated 1/1/94, a construction
supervisor reported 'ruined' nerves in feet and legs. Believes saw dust
and fumes from cutting and routing much CCA-treated lumber are
responsible."
(3) "In an incident report dated 01/01/95,
pressure treated wood caused a chronic rash that persisted for 3 years.
The rash was subsiding when, in 9/98, the person cut some pieces of CCA
treated wood and the rash returned."
(4) "On 5/16/95 a person received a splinter
from CCA treated wood which then developed into a severe infection
requiring surgery. Dorsal cellulitis, ascending lympangitis, and acute
tenosynovitis were reported."
(5) "Sawdust from CCA treated wood blew into
a clerk's eye. The eye became swollen and irritated. The report
indicated that the clerk had previously been sawing the wood and had
worn safety goggles."
(6) "Two workers were exposed while working
with CCA treated wood. Dust masks were worn. Symptoms reported included
headache, nausea, shakiness and thirst."
(7) "A worker not wearing protective gloves
was handling CCA treated wood and wiped his eye with his contaminated
hand. Eye swelling and redness was reported."
(8) "A worker developed a rash on both
forearms after handling CCA treated lumber. No gloves or arm protection
was worn."
(9) "Lumber yard worker developed contact
dermititis on both palms and fingers after handling CCA treated
wood."
(10) "A lumber mill worker reported nausea
and headache radiating down to shoulders after boring holes in wood to
check penetration of CCA treatment."
(11) "A wood treatment facility worker
experienced eye irritation after CCA from freshly-treated lumber
splashed into his eye."
(12) "In 1998, seven cows out of a herd of 37
became ill with diarrhea, weakness, stumbling and prostration. Four of
the seven cows died within 48 hours of onset of symptoms. All cows in
the herd were in otherwise good health and feed and water was negative
for any causative agent. A burn site in the pasture was found to contain
ashes and incompletely burned CCA treated fence posts with an arsenic
concentration of 1850 ppm. Upon autopsy the four deceased cows had
multifocal abomasal hemorrhage, severe hyperemia of the small intestine,
and arsenic concentrations in the liver, abomasal contents, and rumen
contents of 4.2, 42 and 105 ppm, respectively (Hullinger, et al.
1998)."
Since the filing of the lawsuit, other individuals
who have medical problems relating to their contact with CCA Treated
Wood have been disclosed.
What Should I Do If I Have Any Questions About
Possible CCA Treated Wood Exposure?
If you have any questions, your personal physician
may be able to provide helpful information. In addition, your local
health department may have information. Unfortunately, unless they have
had prior experience with CCA treated wood cases, they may not have
sufficient information available. The EPA also has a Division of
Pesticides which has information on CCA Treated Wood. Finally, if you
have any questions, feel free to call our law firm and speak with Gary
S. Graifman or Robert D. Wilkins. We can be reached at:
