By SARAH PROHASKA Palm Beach Post Staff Writer
Two sets of Treasure Coast parents – who blame emissions from Florida Power & Light’s nuclear power plant for their sons’ rare cancers – won’t get to present their cases to a jury this month after a federal judge ruled in favor of FPL.
While an FPL spokeswoman said Friday the ruling handed down by U.S. District Judge James Cohn confirms their argument that the suit “had no merit,” the families are disappointed that the judge ended the case before they had a chance to air their allegations in a trial.
“It’s frustrating. We were within days of a trial,” said Jensen Beach resident Scott Finestone, who sued in 2003 after his no-year- old son, Zachary, was diagnosed with neuroblastoma, cancer in his nervous system, in 2000. “More than anything we wanted our day in court.”
Cohn on Monday granted FPL’s request for summary judgment in the case, saying the plaintiffs “shall take nothing from the defendants in this action,” and ordered clerks to close the file.
The Finestones, along with Tish Blake and John Lowe, the Port St. Lucie parents of 13-year-old Ashton Lowe, allege FPL was negligent and breached various duties to limit radioactive releases from its St. Lucie County nuclear plant. Ashton Lowe died in 2001 of a form of brain cancer called medulloblastoma.
However, Cohn ultimately agreed with FPL, saying “there still is no admissible evidence to support” the families’ allegations that FPL exceeded allowable emissions.
“Plaintiffs must do more than present plausible, yet speculative, theories about the amount of radiation released by the St. Lucie nuclear plant,” Cohn wrote in the 38-page ruling.
West Palm Beach attorney Nancy La Vista, who represented the two families, said she plans to appeal the ruling and hopes her clients will one day get a trial.
FPL spokeswoman Rachel Scott said the utility is satisfied with the outcome.
“We have to operate our nuclear plants with a strict focus on safety, not only for our employees, but also for the public,” Scott said. “And we’re very serious about that.”
Both families took part in a state investigation into a possible “cancer cluster” among children in St. Lucie County in the late 1990s. At the time, it was one of the largest investigations of its kind, after officials found 28 cases of brain and central nervous system childhood cancer between 1981 and 1996 in the area. But the investigation offered the families no definitive answers, and officials said there was no pattern or “smoking gun.”
They later participated in a study by a national organization analyzing levels of strontium-90, a fission product, in children and whether radioactive emissions from nuclear reactors raise cancer risks for children. Baby teeth from Lowe and Finestone showed high levels of strontium-90, according to their lawsuit.
While the families alleged the nuclear plant was the source of the strontium-90 in their boys, FPL vehemently denied it.
“Why else would it be here?” Scott Finestone said Friday. “My son was not flying nuclear bomb planes in the 1960s.”
Attorneys for FPL argued that all strontium-90 in St. Lucie County, as well as the rest of Florida, is here as a result of atmospheric weapons testing and the 1986 Chernobyl nuclear plant disaster.
Despite the suit’s dismissal, Finestone and Tish Blake said they still believe the nuclear plant is at the root of their sons’ illnesses. “I blame them more now because of the information we found out,” Blake said Friday.
They point to documents their attorneys dug up from the early 1980s detailing the release of sewage sludge that was accidentally contaminated with radioactive waste in the late 1970s and early 1980s. The waste from a contaminated sink was mistakenly shipped to a cow pasture near Glades Cut-Off Road in western St. Lucie County, and also to the Fort Pierce Sewage Treatment plant, the plaintiffs argued. FPL and the families disagreed on the amount of contamination.
FPL officials say the contamination was “extremely low radiation levels,” and was cleaned up. They said air, soil and water tests showed there was no public health risk.
In his ruling, Cohn said he found the Nuclear Regulatory Commission’s final report on the sludge releases to be “of critical importance.” That report concluded “it is unlikely that anyone received a measurable radiation dose.”
Throughout the litigation, the families’ attorneys complained that FPL did not produce documents about the incident on time, and Cohn in his ruling acknowledged that “certain plant records regarding three days in mid-September 1982, when the sludge incident was first discovered, remain missing and were perhaps destroyed long before this case began.”
But Cohn dealt a blow to the families’ cases when he declared testimony by three of their expert witnesses about the levels of radiation in the sludge as inadmissible. He ruled their theories had not been subject to peer review and publication, and he expressed concern about the potential error rate in their assumptions.
While he said he wants to appeal, Scott Finestone said his family’s focus now is on Zachary, who is about to turn 12 and is in the sixth grade at a private school in Martin County. He is undergoing chemotherapy but is playing soccer in a recreational league, and is doing pretty well right now, his dad said.
“Yes, we would have liked to have had the trial, but right now we have bigger fish to fry,” Finestone said. “We feel lucky we’ve been able to enjoy the quality of life we have with Zachary. We have a lot of friends who have buried their children in the past few years.”
Scott said while FPL has maintained the plant did not have anything to do with the boys’ cancer, it sympathizes with the families.
“Of course, it’s very, very sad when a family is dealing with cancer, especially children,” she said. “We can understand their search for answers.”