Hagens Berman and Berman Law Group Correct Amended Class-Action Complaint Filed on Behalf of Florida Residents Over Toxic Sugarcane Burning

Prior amendment contained an overstatement of pollutant quantities due to an inadvertent formula error in the model used by plaintiffs’ expert, but corrected amendment does not change the assertion that sugarcane growers use an archaic and environmentally damaging method of harvest that contaminates entire communities along the southern and southeastern shore of Lake Okeechobee

MIAMI — On August 26, 2020, Florida residents sought leave of the United States District Court for the Southern District of Florida court to file an amended and corrected class-action lawsuit that alleges that Defendants, major sugarcane growers in southern Florida, continue to burn vast acreages of sugarcane, knowingly inundating residents of Belle Glade, Canal Point, Clewiston, Indiantown, Moore Haven, Pahokee, and South Bay, i.e., the “Hazard Zone,” with toxic smoke and blanketing their homes and cars with soot and cane residue, according to Hagens Berman and Berman Law Group.  The correction concerns the specific amount of pollutants allegedly discharged into the airshed by Defendants.

Plaintiffs’ newly amended complaint continues to maintain that in Palm Beach County alone, Defendants burned approximately 3.2 million acres of sugarcane field over the course of over 80,000 individual burn events between 2009 and 2019. The lawsuit alleges that the smoke from the millions of acres of burning sugarcane exposes residents to a wide range of pollutants, including particulate matter, dioxins, polycyclic aromatic hydrocarbons, volatile organic compounds, carbon monoxide, sulfur oxides, nitrogen oxides, ammonia, elemental carbon and organic carbon.

According to the complaint, sugarcane growers around the world—including growers in Louisiana, Australia, Thailand, South Africa, and Brazil—have increasingly abandoned pre-harvest burning in favor of mulching their plant waste, thereby boosting their yields and reducing their dependence on chemical fertilizers and pesticides. Yet Defendants, who receive $4 billion a year in federal subsidies, persist in using a dangerous and anachronistic harvesting method that rains toxic ash down on some of Florida’s poorest communities. Defendants continued to burn their crops even as COVID-19 has rendered these communities particularly fragile. According to researchers at Harvard University, even small increases in the amount of PM2.5 in the air—fine particulate matter that Defendants’ burns release in extremely large quantities—may increase the COVID-19 mortality rate.

According to the complaint, fallout from the Defendants’ pre-harvest burning disproportionately burdens residents in the Hazard Zone. Current state regulations deny burn permits to sugarcane growers if the Florida Forest Service projects that the winds will blow smoke and ash plumes toward the more affluent Eastern Palm Beach County and Eastern Martin County communities near the coast. But the Florida Forest Service regularly grants permits for burn events—as many as 60 burn permits a day—when the prevailing winds blow smoke and ash plumes toward the poorer communities within the Hazard Zone. The complaint alleges that the burn permits violate residents’ civil rights and that Defendants jointly engaged with state officials in depriving residents of their constitutionally protected property rights.

If you live in an area of Florida affected by toxic smoke and ash created by the sugar industry's sugarcane burning, find out your rights »

According to the Florida Forest Service database, between 2014 and 2018, Defendants collectively burned 1.5 million acres of sugarcane in the course of over 40,000 burn events. Plaintiffs’ air dispersion modelling analyzed the impact of each Defendant's toxic emissions in this period on 3,500 receptors within a 130km by 100km grid. The model examined the following emissions for each Defendant: PM0.5, PM2.5, and PM10, carbon monoxide and carbonyl; sulfur oxides; nitrogen oxides; ammonia; volatile organic compounds; elemental carbon; organic carbon; polycyclic aromatic hydrocarbons; and dioxins/furans over standard averaging times (1-hour, 4-hour, 8-hour, 24-hour, and annual time intervals).  

An inadvertent formula error in the EPA-approved AERMOD model used by Plaintiffs’ expert caused the prior complaint to overstate pollutant levels. However, the corrected figures in Plaintiffs’ proposed amended complaint still demonstrate that each defendant causes pollution impacts throughout the Hazard Zone, and that air quality standards for certain pollutants were exceeded in many parts of the airshed.

Specifically, the corrected modelling performed by Plaintiffs shows that the byproducts of each Defendant’s burning have effectively blanketed the entire Hazard Zone. Each Defendant’s individual burning had a measurable impact on every receptor within Belle Glade, Canal Point, Clewiston, Indiantown, Moore Haven, Pahokee, and South Bay in all categories of particulate matter and every other pollutant measured over every standard averaging time. Collectively, Defendants caused air concentration levels of hazardous or carcinogenic pollutants to exceed national standards in the Hazard Zone. During the five years modeled, approximately 16.3% of the receptors in the 13,000 square kilometers evaluated exceeded the 24-hour U.S. National Ambient Air Quality Standards for PM2.5, particulate matter that is especially damaging to human health. In some cases, this modeling found an extreme impact: in 2014, for example, one receptor in Pahokee exceeded the national standard by roughly 5.7 times. The Plaintiffs’ model also estimates that benzo[a]pyrene, a confirmed human carcinogen emitted by Defendants, exceeded the US EPA’s May 2020 Regional Screening Level in all seven communities.  100% of the receptors were impacted by each Defendant’s burning activities.

THE HAZARD ZONE

The Hazard Zone encompasses the towns of Belle Glade, Canal Point, Clewiston, Indiantown, Moore Haven, Pahokee, and South Bay, whose residents are hardest hit by sugarcane burning.

THE CLASSES

The lawsuit brings claims on behalf of three classes: a Battery Class, for all residents of the Hazard Zone, who have been exposed without consent to carcinogens, hazardous pollutants, and particulate matter from Defendants' sugarcane burning; a Medical Monitoring Class, for residents over the age of 40, whose exposure to the sugarcane burning puts them at an increased risk of developing lung cancer; and a Property Owner Class, for those who own real property within the Hazard Zone and have suffered property damage from the accumulation of the “black snow” that rains down from Defendants’ nearby burns.

The lawsuit seeks a court supervised monitoring program for lung cancer, and compensation for property and personal injury.

Find out more about the class-action lawsuit against Florida’s sugar industry.

About Hagens Berman
Hagens Berman Sobol Shapiro LLP is a consumer-rights class-action law firm with nine offices across the country. The firm’s tenacious drive for plaintiffs’ rights has earned it numerous national accolades, awards and titles of “Most Feared Plaintiff’s Firm,” and MVPs and Trailblazers of class-action law. More about the law firm and its successes can be found at hbsslaw.com. Follow the firm for updates and news at @ClassActionLaw.

About Berman Law Group
Established in 2008, Berman Law Group has expanded to numerous offices in Florida and across the U.S., after quickly garnering a well-deserved reputation as an indefatigable and fearless defender of its clients’ rights. The firm is headquartered in Boca Raton and has four other offices in Florida, as well as offices in New York City, Atlanta, New Orleans, Las Vegas, and Los Angeles. For additional information see: bermanlawgroup.com.

 

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