Bullseye says DEQ greatly exaggerated toxin danger

Glass company claims agency has let pollution of all sorts persist while it was targete

Bullseye Glass, a Southeast Portland art-glass manufacturer that filed a $30 million federal lawsuit last week against Gov. Kate Brown and two state of Oregon agencies, claims the state is "simply making things up" in its attempt to link its toxic air emissions with health problems that have been reported by people who live in its neighborhood.

While Bullseye does not deny that its pollution is toxic, it contends that the Oregon Department of Environmental Quality has greatly exaggerated the danger it poses to the public. In its lawsuit, Bullseye speculates that the state has been using the glass maker "as a scapegoat to conceal from the public DEQ's failure to establish any program to identify or control toxic waste emissions from small or medium-sized businesses."

It also said the DEQ has allowed a "toxic soup of auto and truck exhaust, wood smoke, diesel exhaust, and industrial pollutants" to persist in Portland's air for many years.

"This case is about abuse of governmental power," the complaint says. "It is about Oregon's government coddling huge industries with deep pockets and political ties, and allowing them to dump hundreds of millions of pounds of industrial pollutants and hazardous substances into Oregon's air. And it is about how Oregon's government — when its lax enforcement and history of neglect got exposed — rushed to judgment and irrationally turned the full weight of its administrative and punitive powers on a small business, not the real polluters."

Reaction to moss study

The controversy over Bullseye's toxic emissions erupted in February 2016, when the Portland Mercury reported the findings of a U.S. Forest Service study of moss collected from numerous sites around Portland. Based on an analysis of the moss, the USFS study identified a number of potential toxic "hot spots" of elevated levels of metals in moss around the city.

The lawsuit claims that the DEQ began targeting Bullseye as a source for toxic pollution as early as October 2015, when it received the first preliminary results from the moss study. After DEQ received the moss data, the lawsuit says, the agency "designed an air test for the sole purpose of linking Bullseye to metal concentrations in moss. Significantly, the air study was flawed in concept and execution, and was of such short duration that it did not provide a sufficient basis, under either EPA or DEQ standards, to evaluate long-term emissions."

Meanwhile, the DEQ failed to investigate other plausible sources of pollution at the potential hot spots identified in the moss study, the lawsuit says. The Uroboros site, located near the eastern end of the Broadway Bridge, is near several sources of pollution, including Interstate 5 and several industrial properties on Swan Island. And Bullseye is near Union Pacific's Brooklyn railyard, "which has a long history of environmental issues," the suit says, as well as a cement transfer station, a diesel truck facility used by as many as 300 trucks per day, many small facilities that use metal and chrome in their processes, and a variety of other historical environmental contaminants.

A public outcry followed the leak of the moss study, and the DEQ launched an investigation of the pollution emitted by the two glass companies. In May 2016, Gov. Brown directed the DEQ to issue a "Cease and Desist Order" forbidding Bullseye from using several toxic compounds in its manufacturing process, including cobalt, manganese, nickel, and selenium.

The lawsuit claims that Brown issued her order because the DEQ said Bullseye had violated a national standard for lead emissions, based on just 10 days' worth of data. The suit notes that the applicable standard, however, was pegged to a three-month daily average, which the DEQ had failed to calculate.

"Bullseye never exceeded that standard," the lawsuit says, adding that the state agencies had "knowingly misstated the national standard to make it look like Bullseye had exceeded a health standard when it had not."

State's response

Although the governor's office, the DEQ and the Oregon Health Authority have declined to comment on the litigation, they have taken at least three actions in recent days in response to Bullseye's claims.

The first response was outlined in a Dec. 8 letter from the health authority to neighbors of the Bullseye plant at 3722 S.E. 21st Ave. The letter announced that OHA will delay the release of a "Public Health Assessment" that was intended to disclose health risks posed by Bullseye's past or current toxic emissions.

This assessment, which had been scheduled to be released in early or mid-December, was to be based on data collected by the DEQ from air, soil and water samples.

But OHA now says the assessment won't be released until sometime in 2018. In response to a public records request, OHA released four different drafts of the Public Health Assessment, along with a cover letter by Andre Ourso, administrator of OHA's Center for Health Protection, which stressed that the drafts have been found to "contain errors" and that "some of the data contained therein should not be relied upon for any purpose."

Ourso did not specify what in the report was erroneous or what data is no longer thought to be reliable.

However, it appears that the OHA withdrew its assessment after receiving a terse letter enumerating many alleged errors in the drafts from Bullseye's lawyers, Allan M. Garten and Kent S. Robinson, on Nov. 21. Both lawyers are former assistant U.S. attorneys who recently retired.

"We strongly suggest that OHA abandon the historical estimates in the draft PHA because there is insufficient data to support its conclusions," their letter said. "To continue on the course evidenced by this draft would misinform the public and further defame and damage Bullseye."

The second action was a decision made by OHA and a federal agency to re-examine the DEQ's October 2015 air monitoring data. In his letter, Ourso said the moss data was being reviewed because it "was not subjected to DEQ's standard review process."

He said the state agencies will now reconsider how DEQ's data will be used in the Public Health Assessment, which "may affect" the PHA's final conclusions.

Meanwhile, the federal Agency for Toxic Substances and Disease Registry will conduct its own independent review of the data, including its findings regarding chromium, cadmium and arsenic, "to ensure confidence" in the Public Health Assessment, he said.

Finally, OHA has called for new procedures that guide the collection of data. In the future, providers of data must submit a completed quality assurance/quality control review, Ourso said.

"However," Ourso said, "this requirement was not in place when OHA received the October 2015 monitoring data. OHA and (the federal Agency for Toxic Substances and Disease Registry) are committed to producing a high-quality and scientifically credible report. It is not clear when the final draft PHA will receive clearance from (the federal agency) and be released for public comment."

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