Federal judge dismisses suit against City of Fort Myers for dumping toxic sludge

A federal judge has dismissed Fort Myers residents’ claims against the city for damages from a toxic landfill it dumped in their neighborhood over half a century ago. 

The short answer for why the the judge granted the motion for dismissal on Monday: the city finally cleaned up the mess.

When Cape Coral attorney Ralph Brookes filed the suit on the residents’ behalf in 2018, “the sludge was still buried on the site,” U.S. Middle District Judge Sheri Polster Chappell wrote.

“Later that year, the city began excavating and removing it. And by summer of 2019, all the sludge was gone,” Chappell observed. 

Citing test results provided by the city consultants, the judge concluded there was no present or future threat to the residents from the contamination.

“My clients are very disappointed that the judge has dismissed the case," Brookes said. "But we are happy that the city conducted a cleanup of the site as a result of our lawsuit, which the city had not begun to clean up for decades until we filed suit.” 

Brookes faulted the city and Department of Environmental Protection for being less than thorough, however. 

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The DEP should have required the city to do more testing off site to delineate the arsenic’s path, he said.

And, too, the city dumped the same sludge in road swales near its golf course, Brookes learned from deposing a former city worker. To his knowledge, he said, it’s still there.

Client Willie Blanks, who lives across from the site, isn’t convinced it’s clean, either.

“Who says it’s clean when they’re still monitoring the (ground)water?” Blanks said. “Who says they got it all out? We don’t really know that.”

Mayor Randy Henderson, Mayor Pro Tem Terolyn Watson, City Attorney Grant Alley and Councilman Johnny Streets did not respond to requests for comment.

Read:Stormwater ponds will replace toxic sludge in Fort Myers

More:Is Fort Myers' decision to dump toxic sludge in Dunbar racist?

Asked how much the city has spent to date on defending the case, Alley and City Manager Saeed Kazemi did not respond.

"This was a case where the powerful won over the public interest," said community activist Anthony Thomas. Thomas brought the dump to the attention of University of Miami Law School Professor Anthony Alfieri in 2017, leading to that school’s involvement.

"Here you have a city polluting its own people, doing a partial cleanup, and this judge has decided no harm, no foul," Thomas said.

Besides a site cleanup, the residents had hoped for compensation for lowered property values and medical monitoring for the possible health effects of being exposed to arsenic in the soil and in their well water in years past.

Had the case been approved as a class action, it could have involved hundreds of neighbors and millions of dollars in awards.

But Poppell, who disclosed she had been an attorney with Holland and Knight, the firm retained by the city, based her decision of question of "imminent, substantial danger" in the present. 

Watch:Removal of toxic sludge in Fort Myers neighborhood begins

And in the city’s favor, she decided such danger could not be described or proven until the case came to trial. 

However, as 30,000 tons of the toxic material were hauled away through the summer and fall, what present danger would the residents be able to show?

Nor could Brookes, working with the environmental law firm Davis and Whitlock and University of Miami Law School students, really prove that the dump had directly caused sustained, toxic exposure over its life. 

More:Toxic sludge neighbors revive open dumping claim against city of Fort Myers

“We investigated potential injury claims, including consulting with experts, and determined that we did not have a sufficient basis to file any,” Brookes said. 

Reluctantly in November, the team withdrew from representing the residents who had health claims. No legal fees were charged.

“We could still bring a large number of these claims against the city in state court for hundreds of affected Dunbar residents," Brookes said. "We are looking at this state court option and reviewing an appeal in federal 11th Circuit court of appeals in Atlanta."

In addition, “although the court ruled that the site has now been cleaned up and there is no potential for a lawsuit to go forward now, ... the fact that we were the catalyst for the clean up may also give us the ability to file additional motions with the federal court," he said.

Today tan-colored ponds cover the four-acre city block where the sludge used to stand amidst overgrown Australian pines. The city plans to use the ponds for stormwater detention and create a green park-like space around them.

Follow this reporter on Twitter @PatriciaBorns.