Toxie Myers, Pinole Man Sues City over Hazardous Waste Dispute

NEWS RELEASE

For Immediate Release

April 1, 2008

For more information, contact:

Timothy Walton, Walton & Roess LLP (650) 566-8500 // litigation [at] waltonroess.com

Terry Graham (415) 686-8442 // tg [at] terry-graham.com

Pinole Man Sues City over Hazardous Waste Dispute

A Pinole man is suing the City of Pinole after he spent nearly 10 years trying to get authorities to remove hazardous waste from his neighbor’s property. The suit was filed last Friday in Contra Costa Superior Court.

Toxie Myers, 72, and his late wife Pauline first contacted Pinole and Contra Costa County officials in 1999 after noticing his neighbor was storing and burning foul-smelling wood. Lab tests revealed the logs contained high concentrations of two dangerous wood-preserving chemicals, pentachlorophenol, also called PCP and “penta”, and dioxin, which is found in commercial-grade penta.

Studies on “penta” show exposure by inhaling, drinking contaminated water, or through skin contact with treated wood or contaminated soil increases cancer risk and affects fertility. Breathing penta fumes can cause heart failure and death. Individuals must be certified and licensed to purchase and use penta, which has been banned or severely restricted in at least 26 nations around the world. The EPA has suspended penta’s use as a biocide/pesticide, but never banned its use as a wood preservative. Penta is used on utility poles, cross arms, roadway guardrails and fence posts throughout the US.

Myers determined his neighbor worked for a Caltrans contractor and that the toxic wood likely came from discarded highway guardrail and median posts.

Starting in 1999, he unsuccessfully sought help from the City of Pinole, Contra Costa’s Board of Supervisors and Health Services Dept., the US and California Department of Transportation, Congressman George Miller, the EPA and FBI to ensure the “Salvaged Hazardous Waste” on his neighbor’s property was removed and safely disposed of, as required under State and Federal Law. A retired ironworker, Myers has published three books -- A Poisoning in Eden,The Pinole Syndrome and The Naked Trumpeter, about his efforts in this matter. His wife died of cancer in 2007. Myers blames her death on her inhaling fumes from the toxic wood his neighbor burned.

The lawsuit alleges that the City of Pinole failed to act to remove the hazardous waste from his neighbor’s property, increasing Myers’ and others’ risk of developing cancer, creating a public and private nuisance causing him severe emotional distress, and denying him his right to peaceably live in his home.

“Mr. Myers’ civil rights have been violated repeatedly -- we believe, intentionally -- by the City of Pinole, which had a duty to protect its residents from these dangerous materials,” said Timothy J. Walton, a Palo Alto attorney representing Myers in the lawsuit.

The suit also claims that after Myers attempted to get assistance from local authorities, he became the target of continuing harassment by Pinole police officers, who would visit his home for no reason, and follow him as he drove around town. Myers further claims that Pinole police failed to act upon his reports of written death threats and intimidation arising from his efforts to have the hazardous materials removed from neighbor’s yard.

Myers is seeking compensation for actual, special and punitive damages, an injunction against the City of Pinole, and removal of the toxic waste from the neighborhood as well as legal fees and costs. Though Myers repeatedly invoked his right to counsel during numerous encounters with the police, the lawsuit alleges that Pinole law enforcement officers consistently failed to contact his attorney, violating his Sixth Amendment right to counsel.

The National Coalition Against the Misuse of Pesticides has fought to have penta banned in the US. The Coalition estimates that approximately 125 million chemically treated wood poles are in use in the US, 43 percent of which are treated with penta.

“Nothing short of a ban of all uses of the hazardous wood preservatives will protect the public from the chemical’s short and long term adverse health effects,” said Jay Feldman, Executive Director of Beyond Pesticides.

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