• Why file this lawsuit?
• Does Bullseye Glass support comprehensive environmental regulation in the state?
• Why didn’t Bullseye close or move?
• Was it necessary for DEQ, OHA and Multnomah County Health Department to warn residents within ½ mile of Bullseye to “await further guidance before consuming backyard vegetables”?
• Bullseye has been the target of a $1.2 billion class action lawsuit since March 2016. How is that suit related to your current action against Governor Brown?
• Why did DEQ retroactively reverse a 10-year old decision exempting Bullseye from specific EPA regulations?
• Is Bullseye in an industrial or a residential zone?
• What is an ambient air benchmark?
• How does the air quality in Portland compare to the ambient air benchmark?
• What does Bullseye’s emission system look like?
Q. Why file this lawsuit?
A. Since early 2016, Bullseye has been targeted by Oregon state and county regulators as a source of metals in the air and soil in Portland. But instead of putting the public’s reasonable concerns about this issue into context, they systematically misrepresented test results, leaked misleading information to the press, and concealed positive information from the public. Some of these claims led to a $1.2 billion class action lawsuit that we are still fighting today.
Bullseye supports fair, non-discriminatory and tough environmental regulation. However, frightening a city and scapegoating a single company is not the way to achieve these goals.
The State and County’s actions caused profound damage to Bullseye in 2016 and 2017, almost driving us out of business. Beyond the damage done to Bullseye’s brand, the misinformation perpetuated by the State in concert with other agencies resulted in major impacts to small businesses around the world, including artists, retail teaching studios, and artisan fabricators. The misinformation also resulted in unwarranted concerns about our industry’s safety, its value, and its environmental impact. Even though we installed a highly efficient emissions control system in a very short time frame, the media still uses our name as a shortcut to refer to polluters in Oregon. This is untrue and unfair, and it will haunt our reputation here and around the world for years and possibly decades to come.
We have no choice but to stand up to this vilification and see no other way but to sue the State in Federal Court. We anticipate that this action will be controversial, but it is time for us to publicly tell our story of flagrant government overreach.
Q. Does Bullseye Glass support comprehensive environmental regulation in the state?
A. Yes. In fact, Bullseye supports the efforts under Cleaner Air Oregon (CAO) to provide a framework for state-wide regulation. Bullseye believes all citizens of Oregon deserve the same protections. We support comprehensive, fair, and non-discriminatory environmental regulation.
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Q. Why didn’t Bullseye close or move?
A. We love Southeast Portland. We have employees who live in the neighborhood, send their children to schools in the neighborhood, and who walk and ride their bikes to work. We have 150 employees and their families relying on us. We have customers all over the world who depend on our products.
We’ve been a part of the economy and culture of this place for more than 40 years and have consistently operated in an environmentally responsible manner. We acted quickly once we were notified of DEQ’s concern and are proud of our employees who worked tirelessly to install a $1.5 million, state-of-the-art emission control system within six months. We love this place, and we’re staying.
Q. Was it necessary for DEQ, OHA and Multnomah County Health Department to warn residents within ½ mile of Bullseye to “await further guidance before consuming backyard vegetables”?
A. No. On February 14, 2016 these agencies issued a baseless warning that unnecessarily stoked fear and panic in Bullseye’s neighbors. These agencies already knew in January 2016, from a previous undisclosed soil study conducted in October 2015, that there was no contamination of the soil around Bullseye.
On or around March 9, 2016, DEQ released results of extensive soil sampling it had conducted around Bullseye the month before. DEQ concluded that the cumulative effect of Bullseye’s operations on the surrounding area presented “no excess risk” to neighbors and that it was safe to eat produce from neighborhood gardens. Unfortunately, by that time the damage had been done.
Q. Bullseye has been the target of a $1.2 billion class action lawsuit since March 2016. How is that suit related to your current action against Governor Brown?
A. The class action suit arose directly out of the misinformation spread by Governor Brown and her agencies beginning in February 2016. It’s based largely on neighbors’ fears that their soil has been polluted and that their property values have been reduced. These and related claims have no merit but have resulted in almost $2 million in legal fees for Bullseye to defend itself. Bullseye Glass is a $15 million company. In short, the State’s actions, followed up a few weeks later by out-of-state class action lawyers could put Bullseye out of business and leave 150 people, many with families, unemployed.
Q. Why did DEQ retroactively reverse a 10-year old decision exempting Bullseye from specific EPA regulations?
A. In 2008 EPA established NESHAP 6S (the National Emissions Standards for Hazardous Air Pollutants for Glass Manufacturing Area Sources, 40 CFR 63.1148, Subpart SSSSSS), the purpose of which was to control metal emissions from glass manufacturing facilities. EPA proposed the regulations after studying large float and container glass manufacturers, most of them 1,000 times the size of Bullseye.
When EPA solicited public comment on a draft of NESHAP 6S in 2007, DEQ alerted Bullseye to the proposed regulation. DEQ suggested that Bullseye should comment on the regulation, because it appeared the drafters had not considered small art glass manufacturers while developing the proposed rule. Bullseye provided comments on the regulation to EPA both in writing and in a phone conference. Bullseye described its periodic/batch furnaces, and explained how its furnaces were much smaller and different from those of large glass manufacturers. As a result, and in direct response to Bullseye’s comments, EPA changed the draft regulation by inserting language clarifying that these regulations only applied to continuous furnaces. Over the years DEQ & EPA had always agreed that Bullseye’s furnaces were periodic and not subject to NESHAP 6S.
Ten years later, in the spring of 2016, DEQ asked EPA to reinterpret the type of furnaces Bullseye operated. EPA allowed DEQ at its discretion to selectively re-label Bullseye’s furnaces as “continuous”. No one in the glass industry or science would consider our furnaces to be continuous. This retroactive re-designation included potential fines of up to $1.5 million for suddenly being out of compliance for the previous 10 years.
We believe the original designation was reversed to bolster DEQ’s reputation as a tough regulator, make Bullseye look unlawful, and damage our reputation. Currently this retroactive re-designation is being used against Bullseye in a $1.2-billion class action lawsuit.
Q. Is Bullseye in an industrial or a residential zone?
A. The Bullseye factory is in an industrial area of Southeast Portland adjacent to the largest intermodal railyard on the West Coast and a cement transfer station. Light industry in the surrounding area includes metal platers, printers, and automotive body shops.
Q. What is an ambient air benchmark?
A. In the absence of meaningful regulation, Oregon established ambient air benchmarks in 2006. As the DEQ website states, “Benchmarks are not standards, but rather planning goals and triggers” for an air toxics assessment program. Ten years later, most businesses and citizens had never heard of these aspirational benchmarks.
The benchmark value of a given air toxic pollutant represents an air concentration that—if exposed to it continuously, 24-hours-a-day, over a 70-year lifespan—would increase an individual’s chance of getting cancer by one in a million. By contrast, the levels deemed safe for workers—in a 40 hour work week, over 40 years—by the Occupational Safety and Health Administration (OSHA) are nearly 10,000 times higher. The OSHA standards are what most businesses are aware of.
Q. How does the air quality in Portland compare to the ambient air benchmark?
A. In February 2015, DEQ presented the map below to the Portland Air Toxics Advisory Committee to describe the toxicity of Portland’s air. The darker red color represents the higher concentrations of toxics. The air in most of Portland’s urban core is projected to be at 81 to 120 times benchmark levels. Northwest Portland, and portions of Beaverton, Aloha, and Hillsboro have concentrations at between 121 to 170 times benchmark levels.
Q. What does Bullseye’s emission system look like?
A. Bullseye installed a custom-designed emissions system 6.5 month after being contacted by DEQ. Normally DEQ would give a company three years to put in emission controls. The system includes three baghouses. Two are in operation at any one time, the third is backup. With the flip of a switch we can isolate a compartment or bring one on line. Because our system can never be completely taken off line, we have built in redundancy throughout the system. The baghouses filter airborne particulates, including small amounts of hazardous air pollutants (HAPs) from 15 furnaces. (The remaining furnaces don’t involve any HAPs.) The system incorporates 108 filters, 32 filters per compartment.