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Case in Multnomah County Circuit Court puts blame on glass maker, state regulators, seeks class action status

PORTLAND TRIBUNE FILE PHOTO - Neighbors protest outside Bullseye Glass last year, after learning of the plant's toxic metal releases into nearby air. The company has since cleaned up its emissions, but a lawsuit seeks damages based on its past practices. In March 2016, several Southeast Portland residents filed suit against Bullseye Glass Co., after learning the company had been polluting their neighborhood's air for several decades with high levels of cadmium, chromium, arsenic and other heavy metals.

Cadmium levels near the plant were found to be 49 times higher than a state 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.

Last Thursday, plaintiffs in the case filed an additional motion seeking an unspecified amount of punitive damages against the company, which incorporates the metals in stained glass products it makes at 3722 S.E. 21st Ave.

Their suit, known as Meeker et al. v. Bullseye Glass Co, now has 10 plaintiffs. Filed in Multnomah County Circuit Court, the original complaint sought an unspecified amount of damages to cover the cost of things like testing and remediating soil.

The case is still in the discovery phase. Judge Stephen K. Bushong has yet to certify whether it can qualify as a class action.

"Bullseye's cavalier attitude — which prioritized profit and expediency over the protectable interests of its neighbors, resulting in the intentional distribution of toxic metals into Southeast Portland — is precisely the kind of behavior punitive damages were designed to address," the new motion states.

Jim Jones, a Bullseye vice president, disputes that characterization of the company. "Bullseye Glass has always conducted its business with concern for the environment," he says. "The company was founded in 1974 using recycled bottle glass, which helped make Portland the leader in glass recycling."

Since a 2016 U.S. Forest Service moss study revealed alarming levels of toxic metal releases from Bullseye as well as Uroboros, a former North Portland glass maker, Bullseye has invested more than $1 million in new air pollution technology. In May, the DEQ determined that the new air filtering technology resolved the problems.

Uroboros subsequently closed its Portland glass plant and reopened in Mexico.

Jones says no neighborhood or business "should have to endure the level of frustration that our neighbors and Bullseye have been through in the last 18 months. The lack of clear environmental air quality regulations has resulted in confusion for citizens and businesses across Oregon."

The motion filed last week by the Seattle law firm Keller Rohrback describes a company with a much different attitude toward the environment. "Bullseye has long known that its raw ingredients include toxic metals, and that melting those metals in its furnaces creates hazardous pollution as a byproduct," it states. Nevertheless, it adds, Bullseye "decided to do nothing" about the emissions, "until very recently."

Founded in 1974, Bullseye began controlling its toxic emissions in August 2016, when it installed a baghouse on 18 of its 20 furnaces, the motion says. The motion says the new baghouses collect enough particulate matter to fill two 55-gallon drums per day.

The plaintiffs argue that Bullseye not only failed to control pollution, but "actively fought against rules that would have required it to control its emissions."

The complaint also points a finger at the Oregon Department of Environmental Quality for missing several opportunities to address Bullseye's toxic emissions. For example, it claims that in 1985, the DEQ sent Bullseye a "Notice of Violation and Intent to Assess Civil Penalty" after an inspector "observed excessive visible emissions coming from your facility."

And yet, the DEQ waited another 21 years before requiring Bullseye to control the emissions. The lengthy delay infuriated neighbors.

"We must not forget that DEQ was Bullseye's silent, listless partner during these decades of unimpeded toxic carcinogens showering our neighborhood," says Katharine Salzmann, a Bullseye neighbor who is not a party to the lawsuit.

"Bullseye was reckless and indifferent towards their neighbors and they should absolutely be subject to severe punitive damages," she says. "But a chronically underfunded DEQ, caught in a culture of pandering to industry, allowed it to happen."

Matthew Van Sickle, a DEQ spokesman, says the emissions observed in 1985 involved an "'opacity" violation, which "would not have triggered concern about air toxics."

"Any concerns that DEQ had regarding emissions in 1985 were addressed at that time and are not related to the emission controls installed today," he says.

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