Wood industry wins one fight


Published: Thursday, January 31, 2002 at 6:01 a.m.
Last Modified: Thursday, February 20, 2003 at 12:39 p.m.

The embattled treated wood industry, under fire because of health and environmental concerns regarding pressure-treated lumber, has gotten good news on the legal front.

Earlier this month, a U.S. District Court judge in Miami dismissed a class-action lawsuit filed against the industry last March - one of two filed in the past year.

But Judge Donald Middlebrooks left the door open for the plaintiff's lawyers to amend it.

The suit charges the industry with deceiving millions of consumers about the potential dangers of chromated copper arsenate, or CCA, the arsenic-laden pesticide that is infused in the wood.

Middlebrooks wrote in an 12-page ruling that the plaintiff, Jerry Jacobs, a Dade County deck owner, failed to show he had been injured by CCA or how he had been exposed.

"Any time you're named in a lawsuit and the suit is thrown out, that's not bad," said Don Harrison, spokesman for Home Depot in Atlanta, one of several companies named in the suit.

Lawyers for the plaintiff said the case is far from over.

The judge gave them until Feb. 28 to amend the complaint.

"I don't think it's unusual in a complex litigation like this for the judge to look at the first complaint and say, 'You need to make some changes,' " said Gary Graifman, a New York lawyer who is the lead attorney on the case.

The ruling is the first thing to go the industry's way in months.

News media reports have raised concerns about children who play on CCA-treated playground equipment, and about carpenters and consumers who saw or burn the wood. Scientists and state regulators are also worried that arsenic, which is toxic and known to cause cancer, might be leaching from thousands of tons of treated wood into water beneath unlined landfills.

Both the U.S. Environmental Protection Agency and Consumer Product Safety Commission are weighing the risks. Prompted by U.S. Sen. Bill Nelson, D-Fla., Congress ordered the EPA to issue preliminary conclusions by the middle of February.

Meanwhile, there are persistent rumors the $4 billion-a-year industry is negotiating a phaseout of CCA with federal officials.

The lawsuit filed in Miami says the defendants should pay to remove decks, fences, playground sets and other structures built with CCA-treated wood, clean up contaminated soils and pay for medical monitoring for people who may be at risk.

Besides Home Depot, the suit named as defendants two chemical companies that make CCA; several companies that make treated wood; and Lowe's. Home Depot and Lowe's are among the wood's biggest retailers.

A spokesman for one of the CCA manufacturers, Arch Wood, declined to comment.

Officials with another, Osmose Inc., could not be reached.

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