Judge allows Bullseye class action lawsuit to proceed to trial

Last Friday, Multnomah County Circuit Judge Stephen K. Bushong ruled that a $1.2 billion class action lawsuit against Bullseye Glass can proceed to trial, which is set to begin on June 11.

When originally filed in March 2016, the suit, known as Meeker et al. v. Bullseye Glass Co., had 10 plaintiffs. Bushong’s ruling means that approximately 2,000 people will also be included as plaintiffs in the case against the glassmaker. They are being represented by the Seattle law firm Keller Rohrback and by Portland attorney Karl Anuta. At the hearing, Bullseye was represented by Kent Robinson of the GRM Law Group of Lake Oswego.

In December, Bushong granted the plaintiffs’ motion to seek punitive damages in the case. They are pursuing trespass, negligence, and nuisance claims against Bullseye Glass, Amy Williams-Derry, one of their attorneys, told the judge at the court hearing.

Jim Jones, a Bullseye vice president, said in a statement that “the ruling allows the out-of-state class action attorneys, Keller Rohrback, to proceed with their $1.2 billion lawsuit against a $15 million, home-grown Portland manufacturer making hand-crafted glass in Southeast Portland.”

The plaintiffs include all property owners and residents, but not commercial businesses, located within a triangular area of Southeast Portland bordered roughly by the Ross Island Bridge on the west, Southeast 35th Avenue on the east and Reed College on the south, as shown in the map on this page. The class is defined to include people who owned residential property or resided in the class area as of February 3, 2016. The parties will be working with the court to prepare and distribute official notice to the class.

Williams-Derry said the boundaries were determined by an air pollution dispersion model. Robinson, the attorney for the glass company, argued that the boundaries should instead be based on the results of soil sample tests. The issue is likely to be settled at trial.

Jones said the lawsuit “is largely based on false and inflammatory statements made by local and State agencies warning neighbors not to eat vegetables from their gardens within a 1/2 mile of Bullseye Glass. It was later discovered that these agencies made the statement when they had soil tests in-hand that indicated the soil was safe. The class action lawyers and the State have never shown that any harm has been done to property in neighborhoods surrounding Bullseye Glass.”

Kent Robinson, a lawyer for Bullseye Glass, argues their case in court last Friday.

The plaintiffs contend that decades of unchecked emissions have polluted properties within the neighborhood, impaired property values, and caused a loss of use and enjoyment of that property. The plaintiffs also say Bullseye’s particulate emissions created a lasting public health hazard in the area, a “stigma” that depressed property values.

The suit was filed after neighbors of the company learned they had been breathing high levels of cadmium, chromium, arsenic and other heavy metals, possibly for decades. Neighborhood residents, along with the broader Portland community, first learned from a news article by Dan Forbes in the Portland Mercury that the likely source of these metals was Bullseye Glass, the lawsuit says.

Bullseye incorporates the metals in stained glass products it makes at 3722 S.E. 21st Ave. After Bullseye suspended the use of certain metals and installed its first pollution control baghouse in March 2016, average concentrations of toxic metals in the neighborhood “dropped 98 percent from 2015 levels, according to the lawsuit.

“The company has been melting hazardous air pollutants in uncontrolled furnaces for over four decades,” the lawsuit said.

The metals in Bullseye’s emissions created an “unacceptable” cumulative cancer risk of 67 per million people, according to a deposition by Mark Chernaik, Ph.D., one of the plaintiffs’ expert witnesses. He estimated that the exposure in the neighborhood to cadmium would cause 23 additional cancer cases per million people. For hexavalent chromium the additional cancer risk was 42 per million people, and the cancer risk associated with exposure to arsenic was 2 per million people.

People living in this area “would have experienced a 0.14 percent increased risk of dying compared to a scenario where such emissions had been controlled,” Chernaik stated in his testimony. “Exposure to particulate matter from a single source that causes a 0.14 percent increased risk of mortality above the baseline mortality rate is highly significant from a public health perspective. The incremental risk of mortality associated with uncontrolled emissions from Bullseye Glass would have been higher, but not fundamentally different in nature, at locations closer to the facility than at the boundary.”

He estimated that uncontrolled emissions of particulate matter prior to 2016 would have consisted of 2.77 percent cadmium, 0.14 percent chromium, and 0.32 percent arsenic.  These concentrations were similar to concentrations in sediment in a drywell at the Bullseye Glass facility. Particulates found in the drywell were emitted and deposited onto the facility’s roof, he said.

He noted that testing by the Oregon Department of Environmental Quality showed that “substantially all (98 percent) of chromium emissions generated by colored glass furnaces at Bullseye Glass are in the form of hexavalent chromium.” Hexavalent chromium is one of the most carcinogenic substances known to science, according to the US Environmental Protection Agency. The EPA considers other forms of chromium, such its trivalent form, to be much less dangerous.

Chernaik estimated that from 2010-2015, Bullseye’s emissions caused cadmium to deposit around the neighborhood at a rate 20 percent above the health-based standard of Germany. He said Germany’s standards have been adopted by a number of jurisdictions internationally.

The Oregon DEQ said that Cadmium levels near the plant were found to be 49 times higher than a state of Oregon health benchmark. Exposure to cadmium can cause kidney disease, while arsenic and chromium have been linked to cancer. Such revelations also helped spawn a statewide clean air initiative, Cleaner Air Oregon, promoted by Gov. Kate Brown.

The Oregon Environmental Quality Commission is expected to rule on proposed Cleaner Air Oregon regulations this summer.

The class action lawsuit is one of two legal cases stemming from air pollution emitted by Bullseye. In December, Bullseye Glass filed suit against Oregon Gov. Kate Brown, the Oregon DEQ, the Oregon Health Authority, and the Multnomah County Health Department alleging damage to its reputation by these agencies. Jones said that the agencies failed to protect Oregonians from the pollution practices of other industries around Portland and instead “scapegoated one small company to improve their own reputations and hide the truth about air quality in Oregon.”