Neighbors hope to expand Castparts pollution lawsuit
Five residents of Portland and Milwaukie have asked Multnomah County Circuit Court to certify their ongoing litigation against Precision Castparts as a class-action lawsuit.
In recent court filings, the plaintiffs accused the company of polluting their homes along with thousands of other residential properties in their community with "significant" amounts of potentially dangerous airborne particulates.
They all live in the so-called "Precision Plume," which the lawsuit defines as an area straddling the Multnomah-Clackamas County line in the Brentwood-Darlington and Ardenwald neighborhoods of Portland and Milwaukie. If granted, the class-action motion would add the occupants of about 5,000 residential properties to the litigation, so long as they lived there on Feb. 17, 2016. Renters and homeowners qualify. The plaintiffs are seeking court-ordered relief and damages on behalf of everyone who lived in the "Precision Plume" on that date.
The company, however, disagrees.
"We strenuously dispute the claims made by the plaintiffs, and we will be filing our response with the court in the coming weeks," said company spokesman David Dugan. "Due to the pending litigation, we will not provide further comment at this time."
Pollution in tree moss
Founded in 1956, Precision Castparts manufactures metal castings at its "Large Parts Campus" at 4600 S.E. Harney St., for aerospace, medical and military uses, including parts for jet engines. The plant makes parts out of steel and titanium.
Southeast Portland residents Kelley Foster, Juan Pratsanchez, Kirk Gayton and Debra Taevs sued the company in July 2016, seeking an unspecified amount of damages. Their lawsuit wanted Precision Castparts to pay each area resident a specific amount based on how much pollution "trespassed" on their property.
In October 2016, the court consolidated that case with another filed by Southeast Portland residents Brian Resendez, Rodica Alina Resendez, Michelle Francisco and Matthew Talbot. The Resendez case sought more than $10 million in damages.
A hearing on further court proceedings is planned in late July. A jury trial that could take more than a month is tentatively scheduled for mid-July 2020.
Plaintiffs claim that Precision Castparts "invaded" their properties by allowing its toxic air pollution to "trespass" for several decades. They also accuse the company of negligence and creating a nuisance, which they say interfered with their "use and enjoyment "of their properties.
"That relief is particularly important here in Oregon, where 'corporate polluters' often 'get their way' by threatening the budgets of environmental regulatory agencies," plaintiffs said in their motion to make the lawsuit a class action.
Their lawsuit came soon after U.S. Forest Service researchers identified Precision Castparts as a possible source of toxic metals detected in tree moss in their community. This was the same moss study that linked Bullseye Glass, another Southeast Portland business, to toxic air pollution in the area. Plaintiffs in both the Bullseye and Precision Castparts cases are represented by the same Seattle law firm, Keller Rohrback.
As moss does not have roots, it absorbs nutrients, water and pollution from the atmosphere. The Forest Service says moss tissue makes a record of pollution levels in the surrounding environment and serves as a "bioindicator" of air pollution.
The moss study found the highest concentration of nickel in Portland near the Precision Castparts site. It detected the fourth-highest concentration of chromium in the city at the same location. In the spring of 2016, after the moss study was made public, the Oregon Department of Environmental Quality installed air monitors near Precision Castparts that showed elevated levels of nickel, arsenic and hexavalent chromium in the air, according to expert testimony filed by the plaintiffs.
According to the plaintiffs' motion, the company uses raw materials containing "substantial" percentages of nickel and chromium. It said that in 2016, it emitted up to 2.6 tons of nickel and chromium into the air. DEQ classifies nickel and chromium as hazardous air pollutants that can cause cancer and other diseases.
Plaintiffs hired experts in the fields of engineering, air modeling and public health to examine Precision Castparts' emissions, model the ambient concentrations of toxic metals in the air, and produce maps that are based upon this information. One of its experts said the average concentration of the carcinogenic compound hexavalent chromium was 5.9 times higher than a cancer risk guideline set by the federal government.
The motion said Precision Castparts' emissions created an "objectively unreasonable risk" to property owners and residents of the properties within the Plume, thus substantially and unreasonably interfering" with their use and enjoyment of their property.
Improved pollution controls
Precision Castparts says on its website that it has completed, or is in the process of completing, "multiple upgrades" to its air pollution control equipment, including new baghouses and air filtration equipment. While it does not deny that it uses a high nickel content in its alloys, it said it uses a type of nickel that has a "very low toxicity" to humans. The website also claims that scientific studies found that workers exposed to the type of nickel alloys used by Precision Castparts "have no increased cancer risk."
"We recently completed installation of improved controls that will further reduce our chromium emissions," the Precision Castparts website states.
But the court motion pointed out that the company's emissions were significant "not only because they are so large, but also because it appears (the company's) systems to limit those emissions are ineffective or nonexistent. (The company's) own records and deposition testimony demonstrate that they have failed to properly maintain their baghouse system, causing increased emissions."
For example, the baghouses, which function like giant vacuum cleaners, developed leaks that were "improperly and untimely repaired," according to depositions taken from company officials. Because the baghouses were not properly maintained, the motion said, they were "far less effective at capturing metal-laden particulate matter pollution. That particulate matter ultimately escapes — unfiltered and untreated — into the outside air."
Moreover, the motion claims that many "significant sources of particulate pollution at the company's Large Parts Campus have no emissions controls at all."
Last fall, the Oregon Health Authority released a report that said toxic metals and other chemicals released over the years by the company's plants are not likely to have harmed human health. The public health assessment found that levels of metals — including arsenic, cadmium, chromium and nickel — detected near the Harney Street plant were below levels that would be expected to harm public health.
However, the class-action motion casts doubt on the accuracy of the health assessment, in part because it relied on data the company self-reported to the state. "(The company's) poor maintenance of its emissions control equipment means (the company) likely underestimates their total emissions as reported to regulators," it said.
Portland freelance writer Paul Koberstein is editor of Cascadia Times.