Seven plaintiffs have filed a class action lawsuit against Bullseye Glass, a Southeast Portland manufacturer accused of emitting unhealthy levels of toxic heavy metals into that air.
Environmental testing by the U.S. Forest Service recently revealed the issue. Researchers found that moss throughout Portland pointed to “hot spots” with concentrations of toxic heavy metals like cadmium, arsenic, nickel and lead.
The complaint, filed by Seattle law firm Keller Rohrback, said the plaintiffs intend to seek damages to be specified later. It cites concentrations of cadmium and arsenic that were far above Oregon’s established safety levels.
State regulators have said Bullseye Glass was operating legally according to its permit.
The complaint notes Bullseye successfully lobbied the Environmental Protection Agency for exemption from rules that would have limited some emissions.
Robert Krueger is a neighbor to Bullseye and one of the plaintiffs. He and his wife Alyssa bought their home 11 years ago. They have two children ages 6 and 3.
Kreuger said he wants to give Bullseye the benefit of the doubt, but he doesn't want to live in a toxic environment.
"My hope with the lawsuit is I can be reassured or have my soil replaced and grow vegetables again and not have to worry about dust getting kicked up when my kids are playing," he said.
Kreuger said he also hopes to see better regulation of all facilities.
A spokesman for Bullseye did not immediately respond to requests for comment.
Since the issue came to light earlier this month, the company has voluntarily suspended its use of arsenic and cadmium.
The suit acknowledges Oregon's Department of Environmental Quality knew of the emissions, but Bullseye is the only defendant named. The lawsuit seeks relief under Oregon's nuisance and trespass laws. Melissa Powers, associate professor at Lewis and Clark Law School in Portland, said such cases have been on the rise in recent years against a variety of facilities.
The basic idea, she said, is that because of loopholes in the Clean Air Act, there is room for the injured parties to turn to common law.
In the case of Bullseye, trespass would mean chemical compounds entered neighbors' properties without permission. Such cases date back to the 1950s in Oregon, when a neighbor to the Reynolds' aluminum plant near Troutdale said drifting fluorine emissions sickened his cows.
Proving intent in a trespass case does not require that Bullseye knew it was polluting specific neighbors' yards.
"If they were aware that their pollution was moving and depositing somewhere else, that probably would be enough for intent," Powers said.
A nuisance complaint involves interference with a person's use and enjoyment of their property. In this case, state officials have cautioned residents inside heavy metals hotspots not to eat vegetables from their gardens. Parents like Krueger also say they are afraid to let their children play in contaminated soil.