Home » The Complaint

The Complaint

The full text of the ‘Bullseye v Brown’ complaint may be read below or click here to download a PDF.


OSB # 812360



OSB # 096251



OSB# 036045



GRM Law Group

5285 Meadows Road, Suite 330

Lake Oswego, Oregon 97035

(503) 730-5001

Attorneys for Plaintiff Bullseye Glass











BULLSEYE GLASS CO., an Oregon Corporation






KATE BROWN, in her capacity as Governor of Oregon, RICHARD WHITMAN, in his capacity as Director, Oregon Department of Environmental Quality, PATRICK ALLEN, in his capacity as Acting Director, Oregon Health Authority, MULTNOMAH COUNTY HEALTH DEPARTMENT, State Officials Jane Doe and State Officials John Doe,











Demand for Jury Trial



            1.         Plaintiff Bullseye Glass is an Oregon Corporation founded in 1974.  Its headquarters and manufacturing facility have always been in Southeast Portland.  Bullseye manufactures colored glass for art and architecture, and distributes that glass throughout the world.

return to top

             2.        This action is taken against Defendants GOVERNOR KATE BROWN, in her capacity as Governor of Oregon, RICHARD WHITMAN, in his capacity as Director, Oregon Department of Environmental Quality, PATRICK ALLEN, in his capacity as Acting Director, Oregon Health Authority, the MULTNOMAH COUNTY HEALTH DEPARTMENT, and State Officials Jane Doe and State Officials John Doe.

return to top

            3.         In this complaint, Bullseye Glass alleges that Defendants, acting under color of law, deprived and conspired to deprive Bullseye of its rights and privileges secured by the Constitution and laws of the United States.  In addition, Bullseye Glass asks the court to declare that the Defendants’ assertion of regulatory authority over Bullseye under 40 CFR 63.1148 (Subpart SSSSSS) was unlawful.  Bullseye seeks injunctive relief to prevent defendants from continuing their civil rights violations, damages in the amount of $30 million, and attorneys’ fees.

return to top

            4.         Simultaneous with the filing of this complaint, Bullseye is filing notices with Defendants alleging Tortious Interference with Bullseye’s Economic Relations and other torts, and intends to add pendant state tort allegations to this complaint.

return to top


            5.         This Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1331, as this matter arises under the Constitution and laws of the United States.

return to top

            6.         This action alleges civil rights and conspiracy to commit civil rights violations under 42 U.S.C. § 1983 and 1985.

return to top

            7.         This action seeks Declaratory and Injunctive relief under 28 U.S.C. §§ 2201 and 2202.

return to top

8.         Jurisdiction over individual agents of the State of Oregon, in their official capacities, is invoked pursuant to the ex Parte Young, 209 U.S. 123 (1908), exception to Eleventh Amendment immunity.  For purposes of brevity and clarity, this complaint refers to the individual agents of the Department of Environmental Quality (DEQ) acting in their official capacity as “Defendant DEQ.” Also, for purpose of brevity and clarity, this complaint refers to the individual agents of the Oregon Health Authority (OHA) acting in their official capacity as “Defendant OHA.”

return to top

9.         The Multnomah County Health Department is a “person” within the meaning of 42 U.S.C. § 1983.

return to top


            10.      Venue is properly in the United States District Court for the District of Oregon. 28 U.S.C. § 1391.

return to top


11.      This case is about abuse of governmental power.  It is about Oregon’s government coddling huge industries with deep pockets and political ties, and allowing them to dump hundreds of millions of pounds of industrial pollutants and hazardous substances into Oregon’s air.  And it is about how Oregon’s government—when its lax enforcement and history of neglect got exposed—rushed to judgment and irrationally turned the full weight of its administrative and punitive powers on a small business, not the real polluters.

return to top

            12.      Bullseye Glass is the quintessential, homegrown Portland business.  It was founded by three art school graduates, who initially set up a small factory in the back-yard of a house in an industrial area of Southeast Portland to make stained glass.  (See Section I (A), below.) Bullseye is a modern pioneer in the art of making colored glass, and by 2016 had grown to become a world leader in making specialized colored glass for use in art and architecture.  (See Sections I (B), below.)

return to top

13.      In 2015 and early 2016, the Oregon Department of Environmental Quality (DEQ) discovered something previously unknown by DEQ, Bullseye, or the colored-art glass industry.  DEQ discovered that air emissions from Bullseye’s glass-making processes might contain pollutants that could raise public-health concerns.  This was the first time that DEQ, in Bullseye’s 43 years of operation, had any such concern about Bullseye.  At the time, Bullseye was in full compliance with its DEQ-issued Air Contaminant Discharge Permit. 

return to top

14.      Defendants GOVERNOR KATE BROWN, DEQ, OHA, and the MULTNOMAH COUNTY HEALTH DEPARTMENT, responded to this information about Bullseye by taking arbitrary, capricious, and irrational actions.  In so doing, they violated and conspired to violate Bullseye’s constitutionally protected due process property rights, by damaging the goodwill, good name, and brand that Bullseye’s owners had spent a lifetime building.  (See Section II (A), below.)  In addition, defendants GOVERNOR KATE BROWN and DEQ violated a federal regulation by knowingly exercising authority under that regulation when they knew they did not have power to do so.  This complaint establishes these allegations as follows:

return to top

 15.     Under the Clean Air Act and Oregon law, Defendant DEQ is responsible for protecting Oregon’s air.  (See Section I (C), below.)  Yet, Portland’s air is a toxic soup of auto and truck exhaust, wood smoke, diesel exhaust, and industrial pollutants.  It is the home of steel plants, oil refineries, and heavy metal fabricators.  DEQ permits these industries to release millions of pounds of pollutants and cancer-causing substances into Oregon’s air every year. (Section I (D), below.)  In part, that is the result of DEQ’s practice of enabling persistent violations of environmental standards by big industries that violate their permits and emit enormous quantities of hazardous pollutants.  Many companies, in Portland and elsewhere, have been caught emitting pollutants in huge quantities for decades, yet DEQ either claims there is no problem, or that it lacks the power to do anything about it. (Section I (E), below.)  This policy and practice shows the arbitrary, capricious, and irrational nature of Defendants’ actions towards Bullseye.  No Oregon business has ever been treated the way Bullseye was treated in the actions described below.  Bullseye was shut down, and its goodwill and good name were irreparably damaged, by Defendants’ actions.  Meanwhile, Oregon’s major polluters continue—to this day—to spew tons of pollutants and toxins into Oregon’s air.      

return to top

16.      Defendants actions were arbitrary, capricious, and irrational in part because they were completely unnecessary.  Bullseye has always welcomed environmental regulation. Bullseye has complied with and relied upon everything DEQ has asked it to do, and has strived to be a responsible corporate citizen.  (See Section I (F), below.)  Throughout its history, Bullseye worked closely, cooperatively, and openly with Defendant DEQ.  Bullseye always disclosed to DEQ what it was doing, which included using small quantities of powdered metallic minerals to infuse color into the glass it was manufacturing.  Whenever DEQ had a question or concern about Bullseye’s environmental practices, Bullseye responded and complied with DEQ’s directions.  Bullseye looked to DEQ for advice and guidance in the complex world of environmental enforcement. Like most small businesses and average citizens, Bullseye believed that regulations established by DEQ and permits issued by DEQ were protective of people and the environment.  Bullseye relied on DEQ’s guidance, and always did as it was told. Bullseye was in full compliance with its DEQ permit at the time Defendants’ arbitrary, capricious, and irrational actions began.  When alerted to a possible emissions problem for the first time in early February 2016, Bullseye acted quickly and conscientiously to address those concerns. (See Section I (G), below.)  

return to top

            17.      Concerns about Bullseye’s emissions first arose when DEQ obtained preliminary results of a novel U.S. Forest Service study conducted on metal concentrations in tree moss throughout Portland.  This was the first moss study conducted in an urban environment, and was at best a rough indicator of possible pollution sources; it did not establish anything about air quality.  Yet Defendants systematically mischaracterized it, and made numerous false and misleading statements about it, all to the detriment of Bullseye.  (See Section II (B), below.)  Thereafter, DEQ set up an air monitoring station next to Bullseye, for the sole purpose of determining whether Bullseye was a source of metals found in moss. DEQ knew the testing was not adequate to determine air quality, yet Defendants wrongly portrayed the air test results as if they represented lifetime exposure to the community.  In fact, the test suffered from errors in design, execution, and laboratory analysis that produced unreliable results. (See Section II (C), below.) 

return to top

            18.      Defendants received the air testing results in late January 2016.  They did not immediately share them with Bullseye. Instead, an individual agent of Defendants leaked those results to the press.  The resulting public response and criticism of DEQ and Defendants caused a panicked rush to judgment by Defendants, and produced a cascading series of actions by Defendants that were arbitrary, capricious, irrational, and motivated by improper political purposes.  (See Section II (A), below.)  Defendants undertook a concerted effort to portray Bullseye as a reckless, renegade company through a campaign of incomplete, misleading, and false information.  They collectively distributed false and misleading information about Bullseye, with no rational basis for doing so.  And Defendants took a series of arbitrary, capricious, and irrational regulatory, public relations, and enforcement actions that were unprecedented in Oregon’s history.  On information and belief, Defendants engaged in this course of conduct to protect their own reputations at the expense of Bullseye’s, and to promote political agendas.  In furtherance of this concerted course of action, Defendants, among other things:

systematically misrepresented the actual findings of the moss study, and concealed early results of the moss study from Bullseye so that DEQ and the Forest Service could promote their own research, rather than protect the air or give Bullseye the chance to address emissions concerns (See Section II(B), below);

misrepresented and over-stated the results of the air monitoring tests (See Section II (C), below);

leaked incomplete and misleading information to the press, before providing it to Bullseye or explaining what it meant, triggering the misinformation campaign and blind-siding Bullseye (See Section II (D), below);

concealed from the public and Bullseye soil test results that were favorable to Bullseye and undermined the Defendants’ narrative about Bullseye (See Section II (E), below);

used Bullseye as a scapegoat to conceal from the public DEQ’s failure to establish any program to identify or control toxic waste emissions from small and medium-sized businesses (See Section II (F), below);

disseminated false and misleading maps purporting to show results of the moss study in an effort to falsely paint Bullseye as the epicenter of industrial pollution in Portland (See Section II (G), below);

distributed a baseless contaminated vegetable warning, thereby needlessly stoking public fear (See Section II (H), below);    

engaged in bad faith negotiations for an air emissions agreement with Bullseye, disguising their intention to take coercive actions, while Bullseye was earnestly trying to understand and respond to emissions concerns (See Section II (H), below);

unlawfully asserted federal regulatory control over Bullseye, after nearly a decade of telling Bullseye the same regulation did not apply to it, so that Defendants could threaten massive fines and coerce Bullseye (See Section II (J), below);

grossly overstated the significance of two six-minute visible emissions from Bullseye’s furnaces to strengthen their shaky claim that they were actually protecting the environment (See Section II (K), below);

made false representations about federal air standards so that they could falsely accuse Bullseye of emitting materials that created a “substantial and imminent” danger to persons (See Section II (L), below);

invoked Governor Brown’s extraordinary authority to authorize DEQ to issue a Cease and Desist Order, premised on the false justification that Bullseye was creating a “substantial and imminent” danger to persons, thereby threatening to shut down Bullseye and coerce Bullseye to submit to the inapplicable federal regulation (See Section II (L), below);

induced Oregon’s Environmental Quality Commission to selectively and irrationally create rules applicable only to Bullseye (because Uroboros had announced it was closing) that are more restrictive than rules imposed on major polluters (See Section II (M), below).

return to top

19.      This course of conduct is unprecedented in Oregon. No business has ever been subjected to this sort of arbitrary, capricious, and irrational government overreaching.  All this was leveled at a company that was in full compliance with the emissions limitations in its DEQ air permit. There was no rational basis for this treatment.

return to top

20.      As a consequence of this irrational and dishonest campaign carried out by Defendants, Bullseye has suffered serious damage to its business relationships, brand, and goodwill.

return to top




A.        Bullseye Glass is the quintessential Portland business—founded by artists who supported bottle recycling.

21.      Bullseye Glass was founded in Portland in 1974 by three artists.  One purpose for the company was to provide a use for the bottle glass generated by the recently passed Oregon bottle bill.  This pioneering work helped to make Oregon a national leader in the recycling of glass bottles.  Bullseye innovated by using recycled glass to make colored glass, and from there went on to become a world leader in art and architectural glass.

return to top

22.      In 1977, Bullseye received a patent for inventing a process for “opalizing” recycled glass.  The process of “opalizing” glass turns clear glass into white or translucent glass, suitable for art and architectural purposes.

return to top

23.      In 1981, Bullseye introduced the world’s first line of “Tested Compatible” glass.  This term describes glass developed and manufactured by Bullseye so that glasses of different colors will successfully fuse together in a kiln without undue residual stress in the finished items. 

return to top

23.      Bullseye’s unique glass produces a final product without the lead, tin, and copper used to join glass in traditional stained-glass windows.  It also provides a method for creating detailed colors in translucent colored glass, without painting over the glass.  “Kiln-glass” can be shaped into small objects such as bowls or sculptures, or used for large architectural installations.  Numerous colleges and universities now offer kiln-glass programs with technical and material support from Bullseye.

return to top

24.      Over the ensuing 36 years, Bullseye became a world-leader in the production of glass for art and architecture, and has continued its specialization in kiln glass.  As of early 2016, Bullseye had 38,000 customers world-wide, with company-owned retail locations in five U.S. cities, 40 independent U.S. dealers, and distribution partnerships in Europe, Australia, Asia, and South America. 

return to top

25.     As of early 2016, Bullseye was producing approximately 2,500 tons of art glass every year.  In contrast, a typical large glass-bottle manufacturer produces 2,500,000 tons of glass, 1,000 times Bullseye’s production.

return to top

26.      At its Southeast Portland facility, Bullseye operates the Klaus Moje Center for Research and Education, where staff instructors and noted guest artists offer short-term classes, technicians test products and offer technical support to glassmakers world-wide, and technical advances in colored art glass are shared through publications, instructional videos, and Bullseye’s website. 

return to top

27.      Bullseye also operates the Bullseye Projects gallery and learning studio in Portland’s Pearl District, which offers exhibition space for glass artists, encourages exploration and dialogue among the art glass community, and collaborates with museums, school, and arts organizations.

return to top

28.      Bullseye sponsors artist-in-residence programs at its studios throughout the United States that provide artists the opportunity to research and experiment with glass.

return to top

29.     Bullseye sponsors international conferences on kiln-formed glass, held biennially on the Portland State University campus.

return to top

30.      As a result of its innovative product designs, commitment to promoting art and architecture, and commitment to supporting the arts and education, Bullseye enjoyed substantial good will in the Portland community, and throughout the art glass world.

return to top

31.      Bullseye has always regarded itself as part of the Southeast Portland community.  Many of its employees live in the neighborhood surrounding Bullseye.  Many children of employees have attended neighborhood schools, including Abernathy and Winterhaven Elementary Schools, Cleveland High School, Grandma’s Place and KinderCare daycare centers. 

return to top

32.      Bullseye welcomes environmental regulation, provided that it is administered in a rational and fair manner, and that equally situated companies are treated equally.  Since questions arose about its emissions, Bullseye has spent $1.5 million installing custom, state-of-the-art emissions controls.  Presently, Bullseye’s air emissions are among the cleanest in the state.

B.        Bullseye is a modern pioneer in the ancient art of making colored glass.

return to top

33.      Colored glass has been created for thousands of years. While new technology and techniques are constantly being devised, many ancient recipes are still in use.

return to top

34.      Glass-making involves melting raw materials together in a furnace. The primary ingredients in glass are sand, soda ash, and limestone. At Bullseye, these ingredients are mixed together according to recipes developed over the past four decades. Once mixed, the resulting batch of raw materials is introduced into gas-fired furnaces that operate at approximately 2,500 degrees Fahrenheit.  It normally takes 8 hours to convert the raw materials into molten glass.  Some of the raw materials in the batch, such as borax and sodium, can volatilize in the process, and can be emitted from the furnaces as visible smoke.   

return to top

35.      Once a batch of molten glass is ready, it is ladled out of the furnace by hand, in much the same way it has been for centuries.  Each ladle of molten glass is squeezed through steel rollers and pressed into a consistent sheet.  Those sheets are then moved, by hand, into a separate annealing oven, which gradually cools the sheet of glass.  Each sheet of glass is handcrafted and individually cut to size.

return to top

36.      Colored glass is created by adding very small quantities of powdered metallic minerals into the glass batch.  This process changes the molecular structure of the raw materials, forming new compounds.  The metals join other ingredients to form metallic oxides that are captured in the molten glass.  Different metals create different colors:  chrome creates green (common in wine and beverage bottles); cadmium, when combined with other metals, can create yellow, red, and orange; cobalt produces blue.  On average, metals make up 0.5% of the materials melted in a batch of glass.

C.        The Clean Air Act assigns responsibility for protecting the air to Oregon’s Department of Environmental Quality.    

return to top

37.      Congress passed the Clean Air Act (CAA) in 1970 to protect public health and welfare from different types of air pollution caused by a diverse array of pollution sources.  Implementation of the CAA and its air standards is a joint responsibility of the states and the Environmental Protection Agency (EPA).  In Oregon, the state agency responsible for this implementation is the Department of Environmental Quality (DEQ).

return to top

38.      The CAA requires EPA to set national air standards for common or widespread pollutants, known as “criteria” pollutants. At all times relevant to this complaint, there were six such “criteria” pollutants:  sulfur dioxide, carbon monoxide, particles, nitrogen dioxide, ozone, and lead. 

return to top

39.      In 1990, the CAA was amended to require issuance of technology-based standards for “major sources” of pollutants, and for those “major sources” to obtain permits.  A “major source” is defined as a stationary source or sources that emits combined air pollutants in excess of 100 tons per year.  Major sources are required to apply for “Title V” permits. States are responsible for administering the Title V permit program.  Bullseye Glass has never been a “major source” of pollutants.   

return to top

40.      The CAA also controls the emission of hazardous air pollutants (HAPs).  Congress and the EPA have identified 187 separate pollutants that are “hazardous.” That list includes chromium, cadmium, and arsenic.  A facility is classified as a “major source” if, after emissions controls, it emits more than 10 tons per year of a single HAPs, or more than 25 tons per year of a combination of HAPs.  Facilities characterized as “major sources” because of HAPs emissions are also required to file Title V permits.  Bullseye Glass has never been a “major source” of HAPs.   

41.      The CAA authorizes EPA to develop and enforce National Emissions Standards for Hazardous Airborne Pollutants (NESHAPs) that control HAPs emissions and industries that may generate HAPs.  40 CFR Part 61.  These standards are applicable to smaller pollution sources, known as “area sources.”  Pursuant to this authority, EPA has passed regulations establishing NESHAPs for many specific pollutants and many specific industrial processes.  For example, there is a NESHAP that limits the amount of arsenic emitted from glass makers that use commercial arsenic as a raw material. 40 C.F.R. Part 61, Subpart N. That NESHAP applies to Bullseye and other companies in Oregon, and permits Bullseye to emit 2.7 tons of arsenic per year from each furnace constructed before 1986, and 0.44 tons per year from each furnace constructed since 1986. Bullseye has 20 furnaces, 18 of which are used for melting colored glass.  On average over the past decade, Bullseye melted only about 0.05 tons of arsenic per furnace, so it was impossible for it to emit anything close to its emission limits.  Neither the NESHAP nor DEQ required or even suggested that Bullseye should test its emissions. 

42.      In 2007, EPA established a NESHAP for Glass Manufacturing Area Sources, 40 CFR 63.1148 (Subpart SSSSSS) [hereinafter referred to as 6S].  As discussed in greater detail below, until April 22, 2016, DEQ agreed that 6S did not apply to Bullseye.  (See Section II (J), below.)

43.      The CAA also authorizes states to establish their own technology-based air emission standards.  Various states—including California and Washington—have established emissions regulatory programs in addition to the federal standards.  Oregon has never created such a program, and has never established testing requirements, usage limits, or emission standards for companies using arsenic, cadmium, chromium, or lead in their manufacturing processes. 

44.      DEQ also administers the “Air Contaminant Discharge Permit” (ACDP) system.  ACDP permits are used to regulate non-major sources of air contaminant emissions.  At all times relevant to this complaint, Bullseye had an ACDP permit.  At all times, Bullseye was fully in compliance with the air emission limits of its permit.

45.      At all times relevant to this complaint, there were hundreds of Oregon businesses with ACDP permits using hazardous materials with no reporting or emissions limits, other than the multi-ton federal limits. Historically, Oregon has done nothing to regulate pollution by small and medium sized companies, or even to determine what emissions are occurring.

46.      In the absence of a meaningful regulatory scheme, in 2006 Oregon established ambient air quality “Benchmarks.”  Benchmarks are not enforceable air quality standards.  They were not presented to Oregon industry or small businesses as emission limits or even goals that companies should strive for. Rather, they are long-range, aspirational goals for a level of air quality that Oregon hopes to achieve at some unspecified future date.  In fact, as detailed below, much of the air in Oregon has pollution concentrations 100 times the aspirational benchmark goal.  Benchmark air concentrations have been established for 59 air toxics common to Oregon. 

47.      Each benchmark value represents an air concentration of a pollutant that, if a person is exposed to it continuously, 24 hours-a-day, for an entire lifetime, would increase that individual’s chance of getting cancer by one-in-a-million.  Benchmarks are established on an annual daily-average basis; they do not represent one-day limits. Oregon’s ambient benchmarks are subject to notice and comment rulemaking before adoption by the Environmental Quality Commission (EQC).  OAR 340-246-0090.

48.      Benchmarks are set in “nanograms per cubic meter” of air.  A nanogram is one-billionth of a gram.  For example, the benchmark for arsenic is 0.2 nanograms, or one-fifth of one-billionth of a gram.  A nanogram of metal is invisible.

49.      The benchmarks are set at extraordinarily low numbers.  They do not purport to be a realistic current standard for emissions.  Rather, they provide aspirational targets.  In comparison, levels deemed safe by OSHA for workers exposed to HAPs in the workplace are nearly 10,000 times higher.    

D.        DEQ permits the release of millions of pounds of hazardous pollutants into Oregon’s air every year.

            50.      Under DEQ’s watch, Oregon’s air is a dumping ground for hundreds of millions of pounds of pollutants every year.  Oregon routinely enforces only the minimum federal standards of the Clean Air Act and its regulations.

            51.      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. In other words, just living in some areas of Portland exposes a resident to increased cancer risk as high as 170 in a million.   

            52.      At the same meeting, the top sources of Portland’s pollution, in order, were identified as: (1) cars and trucks; (2) non-road engines (such as diesel construction equipment); (3) residential wood burning; (4) industry.

            53.      DEQ also presented an Air Toxics Inventory to identify the types of pollution responsible for these high benchmark levels.  The inventory identified one-

year’s toxic emissions totaling 513,591,330 pounds.  Here are the top pollutants—none of which are emitted by Bullseye.  HAPs are identified in red:



Emissions          (lbs. per year)

Ethanol (HAP)




Formaldehyde (HAP)


Acetaldehyde (HAP)


Toluene (HAP)


Benzene (HAP)


Xylenes (Mixed Isomers) (HAP)


Particulate (PM10)






1,3-Butadiene (HAP)


Acrolein (HAP)


Ethyl Benzene (HAP)


Ethylene Glycol (HAP)


m-Xylene (HAP)


Hydrochloric Acid (HAP)


Methyl Isobutyl Ketone (HAP)


Methyl Chloride (HAP)



            54.      Those pollutants find their way into Portland’s air shed in a number of ways. To the extent they come from industry, these emissions are permitted and approved by DEQ.  Here are some of the top Portland area industrial polluters, both in terms of total pollution, and in terms of metal emissions. These numbers are drawn from


an EPA/DEQ database of 2014 emissions.  Each of these companies was complying with its DEQ permit when it emitted these amounts.


Total Emissions in pounds


Metals in Pounds

Arclin Surfaces


4 (Nickel)

Arc Terminals





28 (Chrome)






28 (Chrome)



43 (Chrome)

86 (Lead)

445 (Manganese)

42 (Nickel)




192 (Lead)

779 (Manganese)




1245 (Manganese); 2226 (Copper)


Owens Corning




Precision Castparts


17 (Chrome);

160 (Nickel);

6 (Copper);

9 (Cobalt)







  116 (Chrome)

      9 (Cobalt)

  206 (Nickel)

2469 (Manganese)

  278 (Lead)

2232 (Copper)


            55.      Not surprisingly, these emissions concerned the neighbors of these businesses.  Those neighbors acted when DEQ did not: 

In 2001, two residents of Northwest Portland sued Chevron over toxic vapor emissions from its gasoline storage tanks.  In a settlement of the suit, Chevron agreed to institute emissions controls and paid $75,000 to fund air monitoring.

Neighborhood complaints prompted Vigor Industries to cease using old fuel and water tanks, institute process changes to reduce particulate emissions, and halt production when atmospheric conditions might send emissions toward the residential neighborhood.  In 2016, Vigor entered into a Good Neighborhood Agreement with Neighbors for Clean Air and the University Park Neighborhood Association memorializing ongoing emissions reduction strategies.

56.      One of Portland’s top polluters—not included in this chart—is Owens Brockway Glass Container, Inc.  It serves as a helpful illustration of where Bullseye fits in to Portland industry. Owens Brockway manufactures glass bottles and produces 272,677 tons of glass per year—545 million pounds.  That is more than 1,000 times larger than Bullseye production.  According to its DEQ permitting documents, Owens Brockway operates four “continuous furnaces.”  Owens Brockway’s permit allows it to emit 2.58 million pounds of pollutants every year, and an additional 1,000 pounds of lead.  In fact, during 2014 Owens Brockway reported emitting 1,328,486 pounds of pollutants, and 245 pounds of lead.  The facility is located in Northeast Portland, across NE Killingsworth from a neighborhood, and about 1 mile east of Cully Park.       

            57.      DEQ’s enforcement system is completely dependent on self-reporting by industry.  DEQ rarely does its own air testing.  In addition, DEQ rarely requires industry to conduct its own air testing, especially when companies are not large enough to fall within Title V requirements. Instead, most companies report their emissions by applying an “emissions factor” to specific industrial processes. For example, Bullseye has historically predicted its emissions of particulate matter based on the assumption that for every ton of glass melted, 1.9 pounds of particulate will be emitted.

            58.      DEQ has traditionally viewed Oregon big industry as its client, and the mission statement on its web site includes economic growth among its goals.  DEQ views its mission as advising Oregon industry on how to comply with complex environmental regulations, and helping industry find solutions for environmental problems.  DEQ is particularly accommodating with larger industry.  DEQ is funded by fees from the industries it regulates.  The larger the industry, the larger the fee.  The paragraphs below provide representative examples of how DEQ regulates large companies with huge air emissions problems. 

            59.      While DEQ publicly lists its enforcement actions and the results, it does not provide information about the nature or extent of the pollution problem it has encountered. For example, DEQ and EPA announced they had reached a settlement with Jeld-Wen in Klamath Falls on September 3, 2014 because of a series of Clean Air Act violations.  Jeld-Wen agreed to a substantial fine and to help finance community efforts to replace wood burning stoves.  But the release did not specify the actual violation.  This is questionable practice for an agency supposedly protecting the health of the public.  Jeld-Wen is across the street from an elementary school and emits 37,100 pounds of HAPs per year, of which 2,600 pounds is the cancer causing chemical benzene.

1.         ESCO has emitted huge quantities of toxic metals into residential communities in Northwest Portland for decades.   

60.      The Electric Steel Foundry Company was founded in Northwest Portland in 1913 to provide steel-cast products for streetcars and the wood products industry.  Over the years, it became known as ESCO, and grew into a worldwide producer of metal products for mining, energy, and other industrial uses.  ESCO created numerous unique metal alloys and products over the years to serve its customers.

61.      For more than a century, ESCO operated a 479,000 square-foot metal foundry occupying a two-block area at the corner of NW 25th Avenue and NW Wilson St in Portland.  Its processes involved melting metal and creating metal alloys for heavy-duty purposes.  It was one block from hotels, restaurants, and the northern edge of the densely-populated residential community of Northwest Portland.  It was also about five blocks from Chapman Elementary School. Air emissions from the plant prompted community complaints for decades.  DEQ did little to address those concerns or limit highly toxic emissions, despite their obvious impact on the neighborhood and Chapman Elementary School.

62.      Beginning in the early 1990s, prompted by odors from and pollution concerns about the industrial area of Northwest Portland, the Northwest District Association (NWDA), assisted by Neighbors for Clean Air and the Northwest Environmental Defense Center, established the Health and Environment Committee, which recently changed its name to the Air Quality Committee. Over the ensuing years, that Committee participated in the following:

1992—surveyed the neighborhood and determined there was a problem with industrial odors;

1996—mapped Title V polluters in NW Portland;

1997—obtained funding for air monitoring in NW Portland;

1998—released air monitoring results, showing more than 70 toxic compounds detected in neighborhood air;

1998—testified at the public hearing regarding renewal of ESCO’s Title V permit;

2001-2004—conducted three years’ worth of air monitoring that showed acrolein at 250 times the DEQ benchmark in ESCO’s emissions, and high levels of lead, cadmium, and manganese beginning across the street from ESCO and stretching 12 blocks into the residential neighborhood;  

2005—testified at ESCO’s Title V permit renewal hearing, and persuaded DEQ to reduce permitted lead emissions from one-half ton to 80 pounds;

2005-2012—set up an on-line odor complaint website that received 775 complaints from 120 different people about ESCO’s odors;

2009—collected 1,279 petition signatures asking DEQ to include a requirement in ESCO’s air permit to use Best Available Technology;

2009—testified before the Oregon Senate Interim Committee on Health Care, seeking an independent auditor of ESCO;

2012—signed a “Good Neighbor Agreement” with ESCO providing for incremental testing and emission controls.

63.      DEQ did little in response to citizen concerns over the years.  For the most part, they told citizens DEQ could not specifically trace hazardous emissions to ESCO because it was in an industrial area.  When the NWDA reached agreements with ESCO, DEQ included those agreements in ESCO’s permit.

64.      The Good Neighbor Agreement is a tribute to the determination and persistence of the NWDA.  That Agreement resulted in testing and a series of incremental improvements to ESCO’s processes and emissions that continue to this day.  In short, citizens had to step in and do the job of DEQ when it failed in its most basic mission.  Of course, citizens do not have the same negotiating power that a government regulator does, so the NWDA’s accomplishments were slower and less effective than what DEQ could have done.  Throughout this saga, by all public appearances, DEQ remained largely unconcerned.

65.      In 2008, USA Today published a story called “The Smokestack Effect:  Toxic Air and America’s School,” that ranked the air around Chapman School among the two-percent most polluted in the nation.      

66.      In April 2009, in response to the USA Today story, a DEQ spokesman told Northwest Portland residents that industrial activities usually only contribute 10% to total air toxics, with the rest coming from cars and trucks, commercial heating, and activities such as open burning and solvent use.

67.      In March 2010, a DEQ spokesman acknowledged that previous statements downplaying ESCO’s responsibility were inaccurate, and that as much as 95% of the pollution within a few blocks of ESCO came from the facility.

68.      In May 2011, at a meeting at Chapman School, a DEQ spokesman said DEQ was unable to determine whether hexavalent chromium in the neighborhood came from ESCO.

69.      On September 9, 2011, DEQ released documents to Cascadia Times showing that air studies conducted in 2005 revealed that ESCO emitted hexavalent chromium.  Those air results had not previously been disclosed.  Those documents also showed that, in addition to hexavalent chromium, ESCO was emitting 64 toxic substances, 7 of which were known carcinogens, 12 were suspected carcinogens, and 37 were classified as neurotoxins. 

70.      Nonetheless, six months later, on March 5, 2012, DEQ approved a new Title V air permit for ESCO.  The permit set ESCO’s emissions limits at 1,358,000 pounds of pollutants, and an additional 148,000,000 pounds of carbon dioxide.  The permit allows ESCO to emit annually up to 48,000 pounds of HAPs, including 207 pounds of lead, 132 pounds of chromium, 56 pounds of cadmium, and 12 pounds of arsenic.

71.      On February 13, 2015, ESCO filed its 2014 Annual Compliance Report with DEQ.  It reported the it had emitted more than 584,000 pounds of pollutants and 38,626,000 pounds of carbon dioxide.  In addition, it reported 19,396 pounds of total HAPs emissions, including 96 pounds of lead, 62 pounds of chromium, 23.4 pounds of cadmium, and 5.4 pounds of arsenic.

72.      DEQ had no problem with these emissions into an adjoining neighborhood, because the emissions were within permitted amounts. That lackadaisical attitude, in response to a multi-decade problem and citizen complaints, is characteristic of DEQ’s dealings with industry.  And it stands in stark contrast to DEQ’s irrational response when a single, 18-day air test showed emissions at Bullseye that by any calculation were a small fraction of what ESCO was emitting for decades. 

73.      On July 29, 2016, in the midst of DEQs irrational conduct aimed at Bullseye, ESCO filed its semi-annual Title V permit compliance report.  For the period February 1, 2015 through January 31, 2016, it reported emitting 328,000 pounds of pollutants and 29,470,000 pounds of Carbon Dioxide.  It also reported emitting 37 different HAPs in the amounts set forth on this chart:

74.      DEQ either did not care or did not notice, perhaps because it was preoccupied with stamping out a much smaller business with a much smaller problem. This report—which acknowledged emitting 54 pounds of lead—arrived at DEQ just five weeks after it shut down Bullseye because the air monitor next to Bullseye measured less than one-millionth of a gram of lead in the air, supposedly because that air concentration posed an imminent health risk.

75.      On December 20, 2016, ESCO closed its main foundry, citing diminished demand for its goods.  Nonetheless, it continues to emit HAPs from a smaller facility.

2.         AmeriTies has been emitting dangerous quantities of HAPs in

The Dalles for decades.


            76.      AmeriTies is located on the banks of the Columbia River in The Dalles, Oregon. The facility has been there since the 1920s, although its ownership has changed.  AmeriTies (and its predecessors) preserves wood for use as railroad ties by soaking them in creosote.  This process emits HAPs including naphthalene, dibenzofuran, quinoline, and biphenyl. 

            77.      When naphthalene volatilizes (evaporates) it creates a strong odor, reminiscent of moth balls.  EPA has classified naphthalene as a possible human carcinogen.  The Oregon benchmark concentration for naphthalene is 30 nanograms per cubic meter of air.

            78.      Citizens in the area surrounding the AmeriTies facility have been complaining about odor, and asking DEQ for action, for decades.  In 1996 and 2002, when DEQ was considering renewal of AmeriTies ACDP permit, numerous citizens complained about odors and other issues.  In both instances, DEQ issued the permit anyway, and “committed to work with” citizens and the company to resolve the issues.

            79.      When AmeriTies permit came up for renewal in 2008, again there were numerous complaints about odor and other issues. This time, DEQ took a single incremental step forward, requiring AmeriTies to “devise a plan” for long-term solutions.

            80.      In response to continuing complaints, AmeriTies hired an outside consultant to test air samples on one day in September 2011 and one day in February 2012. Monitors were placed at different locations:  one at AmeriTies and four at locations scattered throughout the Dalles.  The September reading for naphthalene at AmeriTies was 290,000 ng/m3.  That translates into 9,666 times the Benchmark.  For the February test, AmeriTies changed its process, and got somewhat better results, but still significantly exceeded benchmark concentrations.

            81.      DEQ next considered AmeriTies’ permit renewal in 2015.  At that time, DEQ determined that AmeriTies had a potential to emit more than five tons of naphthalene per year.  During public comment, DEQ was asked why it permitted AmeriTies to emit so much HAPs, when EPA had called for the elimination of creosote use in the 1970s.  DEQ’s response was:

DEQ is required by state rule to issue permits to all facilities that meet state and federal regulations.  As AmeriTies West met all applicable air quality regulations, DEQ issued the permit.


            82.      When one question noted that AmeriTies’ previous permits required it to “seriously pursue an odor reduction strategy,” and that it had not fulfilled that requirement, DEQ responded:

AmeriTies West was required to submit a long-term strategy for reducing odors, which the company did.  The permit did not require further action or implementation of the strategy.  DEQ may look at those strategies and consider other Best Work Practices the company could implement as part of the DEQ Nuisance Strategy.


83.      In February 2015, still more complaints about AmeriTies triggered the DEQ’s “Nuisance Strategy.” Nonetheless, before doing any monitoring, DEQ reissued AmeriTies’ permit on March 24, 2015.

84.      More than a year later, on April 8, 2016, DEQ entered into a Mutual Agreement and Order (MAO) that required AmeriTies to use “best work practices to mitigate odors.”  The MAO did not address the annual emission of six tons of HAPs.  

85.      Then, in June 2016, twenty years after DEQ received the first complaints about AmeriTies’ noxious emissions, DEQ finally got around to air monitoring at three locations in The Dalles, for thirteen days. On three days, the plant was not operating, and the test results were negligible.  For the other ten days, at the location closest to AmeriTies—the Wasco County Planning building—the average reading was 4,133 nanograms per cubic meter.   That’s 137 times the benchmark.  Based on these tests, all DEQ did was conclude more monitoring was necessary.   

            86.      DEQ’s report on this monitoring, issued in August 2016, referred to the Benchmark as a “Lifetime Benchmark,” and said it was only significant for gauging “lifetime exposure.”  This may, in fact, be an accurate description of what the benchmarks are.  But as shown below, when it came to Bullseye, DEQ treated one or two-day benchmark and screening level exceedances as a serious health emergency.      

            87.      Between August and September 2016, DEQ conducted more monitoring in The Dalles, and found average naphthalene concentrations of 2,370 nanograms, still 79 times the benchmark.  Again, DEQ decided more monitoring would be done, in the summer of 2017. 

            88.      In sum, for more than 20 years, AmeriTies has been emitting noxious odors from its wood processing plant in the Dalles.  All along, DEQ knew the likely source of those odors was the hazardous pollutant naphthalene.  Yet throughout two decades, DEQ has done little more than ask AmeriTies to control odors.  DEQ never asked that AmeriTies test its emissions or install emissions controls aimed at limiting HAPs emissions.  This remained true even after naphthalene emissions exceeded benchmark levels by 9,666 times.  Notably, even last year, AmeriTies’ emissions were still 137 times the benchmark.  Yet DEQ has not taken any enforcement action against AmeriTies, except for insisting that it use best practices in odor control.

3.         Hollingsworth and Voss has been emitting toxics into the air, ground, and water in Corvallis for decades.         

            89.      Hollingsworth & Voss (“H&V”) is a global manufacturer of materials for filtration, battery, and industrial applications. It operates a facility just south of downtown Corvallis, Oregon, which abuts a residential neighborhood, near parks and schools.  H&V’s Corvallis facility manufactures glass fiber.  Similar to Bullseye’s, this process requires melting batches of raw materials that include arsenic, beryllium, cadmium, chromium, cobalt, lead, manganese, mercury, nickel, and selenium in melting furnaces. Molten glass is then fed into rotary or flame blown fiberizers that transform the material into fibrous glass strands.  H&V has been the site of numerous past environmental issues, dating back more than 30 years.

            90.      H&V’s property was the site of large-scale dumping of trichloroethylene (TCE), a highly toxic, carcinogenic liquid that evaporates quickly into the air. A 25-acre plume of TCE was discovered in the facility’s soil and groundwater in 1985. Despite the removal of 900 cubic meters of soil and remediation efforts continuing to this day, dangerous levels of TCE concentration continue to exist within at least 4.5 acres of the site’s soil and groundwater, and hazardous TCE vapors continue to emit from off-gassing of contaminated soils.

            91.      In February 2014, a canoeist in the Willamette River found large masses of floating material that appeared to be glass fibers located near H&V’s facility, some of which he estimated were as large as 40 square feet and one foot thick. DEQ inspected the site in March 2014 and decided there were no problems requiring any action. Nevertheless, following the threat of Clean Water Act litigation by Willamette Riverkeepers, H&V agreed to change how it disposed of waste materials from its facility, and to pay Willamette Riverkeeper’s legal fees.

            92.      In April 2014, DEQ visited H&V and identified “potentially harmful levels of three heavy metals — barium, cadmium and chromium — in brick dust on the factory floor.” The bricks were part of the furnaces used in H&V’s process, and they absorbed the heavy metals melted in the process. The bricks were periodically replaced and broken into pieces for disposal, thereby releasing HAPs dust.  After its April visit unearthed these violations, DEQ noted: “The most serious of H&V’s multiple violations concerned failure to clean up releases of crushed brick dust containing barium, cadmium and chromium.”  DEQ’s response to the release of these heavy metals was to issue a small fine.

            93.      In July 2014, H&V was again cited for environmental violations. This large-quantity generator of hazardous waste had (1) failed to close containers of hazardous waste; (2) failed to develop and complete required inspections of hazardous waste storage containers; (3) failed to cleanup spills of hazardous materials; (4) failed to keep containers of hazardous waste closed except when adding or removing waste; (5) failed to properly manage waste and waste pesticide residue; (6) and failed to submit required contingency plans to local first responders.  DEQ’s response was to do nothing more than issue a series of small fines, recommend that H&V improve housekeeping for the entire site, and recommend that H&V establish a training program to ensure that all employees “are thoroughly familiar with proper waste handling and emergency procedures.”

            94.      Upon information and belief, in January 2015, H&V discharged nearly 7,000 pounds more pollution than it was allowed into the Willamette River under a permit that had expired eight years earlier. DEQ took no action in response to this massive violation until July 2016 – eighteen months later – at which time it fined the company a mere $2,600.

            95.      H&V’s history of environmental concerns includes its air emissions. H&V’s 1998 ACDP permit authorized it to discharge annually up to 98 tons of nitrogen oxide, 21 tons of carbon monoxide and 2.8 tons of gaseous fluorides. Despite these significant quantities of pollutants and the presence of HAPs in the process, and despite H&V’s history of regulatory violations and hazardous waste issues, under DEQ’s permit “[n]o … testing was required or performed since completion of the plant expansion in 1998 until 2014.”

96.      After more than fifteen years without any ACDP compliance testing, DEQ finally asked H&V to test its own emissions in 2014. The results: rather than discharging no more than 21 tons of carbon monoxide annually, H&V was emitting 457 tons, 21 times the permitted amount. Likewise, despite an annual permitted limit of 2.8 tons of gaseous fluorides, H&V was discharging 7.6 tons.

97.      In response to the startling discovery that H&V’s emissions were more than 20 times what the permit allowed, DEQ entered into an agreement with H&V that permitted H&V to continue emitting these massive quantities in violation of its permit.  H&V was required to file a series of permit applications, including a Title V application, with DEQ.  H&V also paid a substantial fine.   

98.      The quantity of HAPs discharged over this time is unknown, apparently because DEQ did not bother to ask.  It never placed limits on H&V’s HAPs emissions, and never required H&V to test its HAPs emissions until very recently.  Testing during 2015 established that H&V was discharging 15.8 tons of HAPs every year.  There have been no plant expansions since 1998; therefore, it is likely H&V has been emitting that much all along.  That annual total includes 320 pounds of chromium, 20 pounds of manganese, 13 pounds of arsenic, 18.4 pounds of selenium, 12.4 pounds of lead, and 10 pounds of nickel.

99.      H&V has started constructing pollution control equipment, and DEQ began air monitoring in the neighborhood surrounding H&V in August 2017.

4.         In contrast, when DEQ received incomplete, unverified information about Bullseye, it rushed to judgment and engaged in irrational conduct toward Bullseye.

            100.    These three examples illustrate DEQ’s customary approach to companies, even in the face of massive violations, and massive emissions.  But DEQ took an entirely different approach with Bullseye. Instead, when questions about Bullseye’s emissions arose, DEQ and Defendants irrationally rushed to judgment, and engaged in the irrational and harmful course of conduct described below.

F.        Bullseye has complied with and relied upon everything DEQ has asked it to do, and has strived to be a responsible corporate citizen.

101.    Both historically and in the present day, Bullseye has had a very minor impact on Portland’s air quality.  At all times, Bullseye has been completely candid with DEQ, complied with DEQ’s input and advice on various environmental issues, and has been in full compliance with its DEQ emissions permits.  This case is about how Defendants arbitrarily, capriciously, and irrationally turned the full force of their regulatory and punitive powers on Bullseye.  In so doing, they sought to make up for decades of regulatory ineptitude by scapegoating one small company. Meanwhile, Oregon’s major polluters continued their practices unabated.  

102.    Throughout Bullseye’s existence, the company has been candid with DEQ and responsive to any concerns the department has expressed.  In 1984, Bullseye provided DEQ with a list of the raw materials melted in its glass-making processes, including thirteen hazardous materials. That list included arsenic, chrome, cadmium, and selenium.  Bullseye informed DEQ that in a “worst case scenario,” Bullseye might emit less than half a gram per day of arsenic and approximately two grams per day of cadmium.  These estimates, compared to the millions of pounds of HAPs emissions DEQ was permitting, understandably caused little concern.

103.    In fact, in 1984, while fully aware that Bullseye was melting HAPs, DEQ issued Bullseye an ACDP permit allowing it to emit one ton of particulate matter (PM) from its uncontrolled furnaces. DEQ did not require Bullseye to test any of its actual emissions. Instead, DEQ employed a formula based on the amount of glass Bullseye produced to calculate the quantity of particulate emitted.  Nothing in the permit required Bullseye to take any further steps regarding the metals used in its processes.

104.    The only concerns DEQ ever expressed regarding Bullseye’s emissions involved “opacity,” which means that furnace exhaust occasionally was visible.  Visible emissions are caused by steam and particulate matter.  Between 1985 and 1988, Bullseye spent $500,000 responding to the problem by reformulating its glass recipes and changing other aspects of the melting process.  DEQ approved this method of addressing the opacity concerns in an ACDP permit issued August 14, 1986, which permitted the company to continue discharging up to a ton of particulate matter annually.  On March 1, 1988, DEQ inspectors concluded that Bullseye had “achieved compliance” by making production changes.  They also noted that Bullseye’s new furnaces kept a neutral pressure and as a result, “operate cleaner because they will not exhaust out when being charged.”  This process is typical of how DEQ had always dealt with industry emissions problems: working with the company over time to find a viable solution.

105.    Every year, as required by its permit, Bullseye filed reports with DEQ listing the quantity of raw materials it used.  Thus, for example, in 1991, Bullseye reported that during 1990 it had melted arsenic trioxide, chrome oxide, and cadmium compounds.

106.    DEQ’s Permit Review Reports for 1992 and 1997, under the heading “AIR TOXICS,” both stated: “Toxic air pollutant emissions from this source will be reviewed at such times as the Department formulates its review procedures for existing air emissions sources.”

107.    DEQ has continuously reiterated its lack of concern, while acknowledging it knew Bullseye was melting HAPs.  In 1999, a DEQ compliance inspection found Bullseye in compliance and observed:

Other issues: EPA nor the Department has rectified the issue of HAPs from Bullseye’s glassmaking process. There are several additives that are used for color, that may be considered hazardous. However, it is unknown how much of the material is bound within the glass as opposed to being emitted. Until more is known about the process and/or emissions, Bullseye has agreed to monitor all raw materials and continue reporting them as part of the permit conditions.


108.    Five years later, DEQ’s lack of concern was unchanged.  The Review Report supporting Bullseye’s 2004 permit states:

A major source is a facility that has potential to emit more than 10 tons/year of any single HAP or 25 tons/year of combined HAPs. [Bullseye] uses approximately 6,000 pounds of dry materials per year that contain HAP substances. After the dry products are mixed, water is added to moisten the batch before firing. No data on the potential emissions through the furnace stack are available for these chemicals. Assuming that all of the material was released, the facility would not have potential to emit single or combined HAP at levels of concern.


109.    In April 2004, Bullseye received a BEST (Businesses for an Environmentally Sustainable Tomorrow) award from Portland’s Office of Sustainable Development for reducing its factory cooling water by voluntarily installing a recirculation system that reduced water usage by 60%.

110.    In 2005, Bullseye—voluntarily, on its own initiative—installed a liquid oxygen system for its furnaces that reduced carbon emissions by 40% and nitrous oxide—a greenhouse gas—emissions by 90%.

111.    Beginning not later than 2007, Bullseye provided annual reports to DEQ stating the total tons of glass produced, and the amount of arsenic used in the process.

112.    As noted above, in 2008, EPA adopted NESHAP Part 6S for Glass Manufacturers.  Thereafter, DEQ personnel visited and inspected the Bullseye facility.  In 2011, DEQ’s Permit Review Report stated that Part 6S “is not applicable to this facility because the regulation applies only to continuous furnaces.  Bullseye operates only periodic furnaces.”    

113.    That 2011 report also stated that “Dry materials used at the facility may include arsenic trioxide, cadmium, selenium, chromium, and lead as coloring agents or to produce trade-mark characteristics in the glass.”  Once again, the Review Report noted there was “no data” on “potential emissions” from these materials. And again, DEQ stated that even if Bullseye emitted “all of this material” as particulate into the environment, the facility would not exceed any standard for HAPs emissions.  That permit was signed by the current Special Advisor to the Director of Cleaner Air Oregon.

114.    Bullseye’s 2011 permit allowed it to melt arsenic in its glass making process, and required that it keep track of the amount used in its manufacturing processes. DEQ authorized Bullseye to emit up to 2.7 tons of arsenic per furnace (for its old furnaces) without violating federal guidelines.  Yet at the time, Bullseye melted an average of less than 0.05 tons of arsenic per furnace.  At no time did DEQ raise any concerns about these practices.  It never asked Bullseye to conduct any tests on its emissions and never asked it to install additional pollution controls. 

115.    Over time, Bullseye was frequently inspected by DEQ permit writers, who were responsible for making sure the company’s permits complied with law, inspecting the facility for any possible problems, and handling any complaints.  Those employees did not perceive a risk posed by Bullseye’s operations.  Rather, they knowingly allowed Bullseye to continue melting metal in its furnaces without testing or pollution controls.

116.    DEQ never required or asked Bullseye to measure its actual emissions nor did it ever request source testing of its emissions.  Rather, DEQ calculated Bullseye’s permitted particulate emissions based on the amount of glass produced.  Importantly, Bullseye never came close to reaching the limits of is permitted emissions.  In fact, between 2007 and 2015, this formula applied to Bullseye’s production establishes that Bullseye routinely emitted only about 16% of its permitted amount.  

117.    On February 1, 2016, DEQ’s Portland Area Air Quality Manager visited the Bullseye facility and advised Bullseye officials that the company was in compliance with its DEQ permit.

118.    Following news reports on February 3 stating that elevated levels of cadmium and arsenic had been found in air testing near Bullseye, a DEQ spokesperson said that “neither the company nor the state environmental regulators knew that Bullseye could be emitting excess metals.”  She added, “We didn’t know, and they didn’t know. . ..  It looks like this is new information, that people were not aware of these emissions.”

G.        Bullseye acted quickly and conscientiously in response to the air test results to address emissions concerns.

            119.    On February 1, 2016, Bullseye voluntarily suspended its use of cadmium and arsenic while it struggled to determine the new and uncertain standards DEQ expected it to comply with.  This reduced Bullseye’s production volume by 20%.

            120.    At the same time, Bullseye initiated negotiations with DEQ, the Oregon Department of Justice (ODOJ), and the Governor’s Office to establish an Air Emissions Agreement.  The purpose of these negotiations was to try to arrive at a solution, namely, to determine how Bullseye could continue operating while safeguarding the environment.  Bullseye did this voluntarily, and with full knowledge that Oregon lacked a regulatory or enforcement mechanism to force Bullseye to change its practices.

            121.    Over the ensuing months, Bullseye took numerous steps to address its emissions issues, including the following:

February 8, 2016 – Bullseye contacted Serbco, Inc., and subsequently contracted with that company to provide design and engineering services to install pollution controls.

February 11, 2016 – Bullseye agreed to stop using hexavalent chromium (also known as Cr+6) in its operations.

February 15, 2016 – Bullseye suspended using all chromium, including the non-toxic tri-valent chromium (also known as Cr+3).  This reduced Bullseye’s production volume by 50%.

February 19, 2016 – Bullseye met with DEQ Director Pedersen and other DEQ officials and in follow-up correspondence “committed to addressing the concerns relating to emissions.” Bullseye reiterated that it had suspended using cadmium, arsenic, and hexavalent chromium while it worked with DEQ to understand the air emissions data, and also agreed to stop using arsenic indefinitely.

March 4, 2016 – Bullseye emailed DEQ a Notice of Intent to Construct (NOC) for the installation of a pollution control device known as a baghouse on one existing batch glass melting furnace.

March 22, 2016 – Bullseye submitted a Source Test Plan for April stack testing of its emissions. 

March 28, 2016 – Bullseye completed installation of the pilot baghouse. 

March 29 – April 1, 2016 – Bullseye melted clear glass to test and verify the configuration of the baghouse. 

April 4, 2016 – Bullseye started reduced production of cadmium glasses in a 1500 lb. tank connected to the pilot baghouse. Production would only be approximately 50% of what was needed for sales.

April 19, 2016 – Bullseye conducted an emissions test to determine the type of chrome it was emitting.

May 25, 2016 – Bullseye proposed new production limits to DEQ.

August 22, 2016Baghouses serving eighteen furnaces went online at Bullseye.  Fifteen connected furnaces were then in use.

122.    While Bullseye diligently pursued its goal of resolving any emission concerns, DEQ and Defendants had a different agenda.



A.        Defendants violated and conspired to violate Bullseye’s civil rights by engaging in a campaign of misinformation and irrational actions.

123.    Bullseye welcomes environmental regulation.  For more than 30 years, Bullseye believed it had a solid partnership with DEQ.  Bullseye routinely looked to DEQ for guidance, and relied on DEQ’s input. When issues arose about the applicability of federal regulations, Bullseye followed DEQ’s advice, and the two arrived at mutual solutions.  From all this, Bullseye believe its emissions were safe and not a matter of concern.  This case arises because Bullseye’s reliance on and trust in DEQ and other state and local agencies was misplaced.

124.    This case is about DEQ and Defendants’ rush to judgment when they got hit with bad publicity.  They proceeded to change the rules applicable to Bullseye after the fact, and acted like the rules had been in place all along.  And in the process, they treated Bullseye differently than any company has ever before been treated by the State of Oregon and its agencies. It is as if the speed limit was 55 mph, Bullseye was going 5 mph, and the state sought to punish Bullseye for going faster than 0.2 mph.

125.    Beginning in mid-2015, DEQ and the U.S. Forest Service concealed from Bullseye important information involving potential emissions problems, because they were more interested in completing a research project, and in singling out Bullseye for condemnation, than they were in preventing potentially harmful emissions.  From that point forward, DEQ and the Forest Service undertook a campaign to paint Bullseye as a major polluter, and as the epicenter of hazardous emissions.  They took this unprecedented step even though they knew that Bullseye’s total emissions were a small fraction of what DEQ allowed to be dumped into the atmosphere every day.  In the fall of 2015, they designed an air test for the sole purpose of linking Bullseye to metal concentrations in moss.  Significantly, the air study was flawed in concept and execution, and was of such short duration that it did not provide a sufficient basis, under either  EPA or DEQ standards, to evaluate long-term emissions.         

126.    Beginning in late January 2016, DEQ joined with the Oregon Health Authority (OHA) and the Multnomah County Health Department to continue the campaign of misinformation and irrational regulatory conduct aimed at Bullseye.  All of this was done at the direction and under the control of the Governor.  The state and local agencies concealed key information, negotiated in bad faith, and misrepresented test results.  In the process, they created and perpetuated a picture of Bullseye as a “major polluter” that was “poisoning” the surrounding neighborhoods.  The Defendants persisted in their false statements about Bullseye well after they knew they were false.  Indeed, Defendants’ false statements remain on their websites, continuing to misrepresent Bullseye, and continuing to erode the goodwill and business relationships that Bullseye and its owners have spent a lifetime building. 

B.        Defendants systematically misrepresented the actual findings of the moss study, and concealed early results of the moss study from Bullseye so that DEQ and the Forest Service could promote their own research, rather than protect the air or give Bullseye the chance to address emissions concerns.

            127.    Beginning in 2013, DEQ collaborated with the U.S. Forest Service to conduct a study of the presence of heavy metals in moss on trees in Portland. The plan was to use results of the study to guide further inquiry into air pollution sources.

            128.    The study was not designed to identify levels or types of pollution throughout Portland.  Thus, the study deliberately avoided collecting samples in forested areas or around heavy industry, and did not test the samples for several of Portland’s leading pollution problems, such as diesel exhaust or smoke from wood-burning stoves and fireplaces.

            129.    The study was the first to use moss to attempt to identify air pollution problems in an urban environment.  The Forest Service collected 346 moss samples.   On information and belief, Plaintiff alleges the moss study suffered from flaws in design and execution. 

            130.    The final Forest Service report on the moss study was not released until June 9, 2016. The published study showed the presence of metal in nearly all the moss samples throughout the city.  It measured how much metal was in a moss sample by determining the fractional weight of the metal compared to the total weight of the moss. The concentration was then expressed in milligrams of metal per kilograms of moss.  There are 1,000,000 milligrams in a kilogram.  For many of the metals, there were “hotspots” with relatively high concentrations.  The highest readings follow:



Concentration (mg/kg)

























131.    Two metals with much lower maximum concentrations were:


Concentration (mg/kg)







            132.    When the study was completed in June 2016, it identified numerous locations that were hotpots for more than one element.  The single location that showed the highest concentrations of the most metals was along Columbia Boulevard in Northeast Portland, right next to the Cully neighborhood.  That sample was among the highest in concentrations for lead, nickel, copper, cadmium, molybdenum, chrome, iron, cobalt, aluminum, and arsenic.  DEQ has long been aware of concerns in North and Northeast Portland regarding metal and other noxious air emissions, including in the Cully neighborhood.  This sample was close to the Owens Brockway glass plant, and to other industrial polluters.

            133.    The second and fourth highest concentration of multiple metals were found in Portland’s Pearl District and near Portland State University.  Both heavily populated locations had amongst the highest concentrations for lead, nickel, copper, cadmium, molybdenum, chrome, iron, cobalt, and aluminum.

            134.    The third highest concentrations of metals were found at a location near the eastern end of the Broadway Bridge, just across I-5 from the site of Tubman School. It had amongst the highest findings for cadmium, molybdenum, chrome, iron, cobalt, and aluminum.  Defendants and the Forest Service later associated this location with Uroboros Glass—another colored art glass manufacturer—but it was also close to I-5 and the industrial facilities on Swan Island.   

            135.    The fifth through the tenth samples with the highest concentrations of multiple metals were scattered close to residential areas from the West Hills, to the Garden Home Neighborhood, to east of I-205, and to the Johnson Creek neighborhood.

            136.    The eleventh highest concentration of multiple metals was found in a moss sample several blocks north of Bullseye, across Powell Boulevard.  That sample had the highest readings for cadmium and arsenic. Bullseye is in an industrial-zoned area, and is close to (1) the Union Pacific railyard, which has a long history of environmental issues, (2) a cement transfer station, (3) a diesel truck facility used by as many as 300 trucks per day, (4) many small facilities using metal and chrome in their processes, and (5) a variety of other historical environmental contaminations.

137.    These were not, however, the results provided to the public by Defendants.  Instead, beginning in February 2016, Defendants used preliminary, unverified information about the study to provide incomplete, misleading, and false and inflammatory information to the residential community near Bullseye and to the public at large.

138.    Approximately a year earlier, the Forest Service began sharing the first preliminary results of the study with DEQ.  In June 2015, they turned their attention almost exclusively to the moss sample near Bullseye.  DEQ, however, was not concerned enough about the moss results to alert Bullseye.  Even though DEQ understood Bullseye used both arsenic and cadmium in its glass manufacturing process, DEQ did not warn Bullseye that there might be previously unknown emissions, nor did it ask Bullseye to monitor or test its emissions, nor adjust or reduce its use of those metals in its processes.  Instead, DEQ and the Forest Service undertook what internal emails describe as “cadmium sleuthing.”   

139.    On September 17, 2015, a DEQ official contacted Bullseye and provided partial information about DEQ’s inquiries.  DEQ stated that its investigation was “not related to any compliance issues.” 

140.    Bullseye welcomed air testing, and asked to be advised of the results.  Because Bullseye believed in good faith that it was not emitting hazardous metals, it did nothing to change its processes or emissions while DEQ was conducting the testing. In fact, it used metals at a slightly higher than normal rate that month.    

C.        DEQ conducted selective and inadequate air monitoring for the sole purpose of identifying Bullseye as a source of pollution, then misrepresented and overstated the results.

141.    With all the above-described moss data in hand, DEQ decided to follow-up on a single moss sample, the one nearest Bullseye. It placed an air monitor “as close to Bullseye as possible,” solely to establish that Bullseye was the source of cadmium in the moss sample.  This was not a test to determine air quality in Southeast Portland, nor was it designed to explore possible other sources for cadmium or other metals.  Rather, its purpose was to hone in on Bullseye.

142.    DEQ and the Forest Service chose October 2015 as the “Optimal monitoring time” because that month usually has the highest cadmium levels.  In internal emails, DEQ theorized that October provided the highest readings because cadmium emitting oil furnaces start up during October, after they have been sitting idle all summer.

143.    DEQ has long known that the massive Union Pacific railyard near Bullseye was a possible source of cadmium.  It should have been aware that, at exactly this time, a massive construction project was underway at the railyards, involving excavating hundreds of tons of surface dirt from the railyard.  Huge berms of excavated dirt were present throughout the railyard, including in Bullseye’s immediate vicinity.  These berms were uncovered, and open to the wind.  Surface dirt in railyards is known to be a source of cadmium and arsenic.  DEQ failed to design its air test to determine whether the railyard was contributing to arsenic and cadmium in the air.

144.    DEQ scheduled eighteen days of air tests in October and early November 2015.  DEQ and EPA’s internal management directives and routine practices require months of monitoring before attempting to estimate air quality.  Eighteen days is not a representative sample.

145.    On information and belief, the results of the air monitoring are also unreliable because, among other reasons, (1) inadequately trained volunteer college students were used to collect the samples; (2) the filters used for collecting air samples were contaminated by heavy metal; (3) DEQ failed to perform industry standard testing of the filters to determine contamination of the tests; (4) normal procedures for collecting, storing, and maintaining chain of custody of the samples were not followed and were not properly documented.

146.    The final results prepared by DEQ are wrong because they fail to account for contamination in the filters.

147.    On January 19, 2016, DEQ received results from the air tests.  Bullseye was not informed.  As calculated by DEQ, the results showed the following air concentrations of arsenic and cadmium:


Maximum Daily Concentration (ng/m3)

Average Concentration over Test Period (ng/m3)









            148.    Throughout its analysis and public presentation of these results, DEQ frequently relied upon information from an entity known as the Agency for Toxic Substances and Disease Registry (ATSDR).  ATSDR is part of the U.S. Department of Health and Human Resources.  At the time the above results were obtained, ATSDR had

published “ToxGuides” for arsenic and cadmium.  Those guides set forth typical urban/industrial air concentrations of these metals as follows:


Typical Urban Concentration (ng/m3)







            149.    DEQ did not include the ATSDR information in its public statements.  Rather than inform the public of urban concentration norms, or even Portland’s air toxin levels, it instead used Oregon aspirational benchmarks as if they were emissions rules to deliberately overstate the significance of Bullseye’s purported emissions.

            150.    In a meeting with Bullseye representatives on February 12, 2016, a DEQ representative conceded that the October 2015 air monitoring—because it only covered 18 days—did not provide sufficient data to evaluate air quality

            151.    Beginning on or about January 21, 2016, DEQ shared the results of the air and moss studies with the Oregon Health Authority and the Multnomah County Health Department.

D.        Defendants leaked incomplete and misleading information to the press, before providing it to Bullseye or explaining what it meant, triggering the misinformation campaign and blind-siding Bullseye.  

            152.    Beginning not later than November 24, 2015, a DEQ air official and one of the U.S. Forest Service officials involved in the moss study began communicating with Portland news media about “the cadmium issue.”  On information and belief, they provided preliminary, incomplete, and false information.  They did not provide any information to Bullseye.   

153.    On or before February 1, 2016, an individual acting on behalf of Defendants leaked detailed results of the air study to the press. 

            154.    Officials from DEQ and OHA spoke with a reporter on February 1 and 2, and provided details of the air and moss sampling, as well as information regarding health risks, even though they knew the information was preliminary and not suitable for public disclosure.  Much of this occurred before any notification to Bullseye, and without providing any explanation to Bullseye about what was going on.

            155.    At approximately 4:00 pm on February 1, two DEQ officials visited the Bullseye facility, provided a copy of the air test results, and advised Bullseye that the results had been leaked to the press.  They also stated that Bullseye was fully in compliance with its air emissions permit.  Just moments later, Bullseye’s phone started ringing with inquiries from the fully-informed media.  Bullseye was, in short, blindsided by DEQ.  While fully briefing the media, DEQ told Bullseye nothing until the last possible moment.  And even then, DEQ made no effort to fully explain the situation or even outline what had been shared with the media.

            156.    The resulting press accounts created a storm of criticism, not just of Bullseye, but of DEQ and the state government for failing to adequately regulate emissions. The dramatic press portrayals—fueled by Defendants’ false and misleading statements—were frightening to Bullseye’s neighbors, and also to the owners and employees of Bullseye, who could not grasp at first how decades of complying with DEQ’s standards put them in this position.

E.        Defendants concealed soil test results that were favorable to Bullseye and undermined the Defendants’ narrative about Bullseye.

157.    During October 2015, at the same time the air monitoring was occurring, the Forest Service collected additional moss samples in Bullseye’s immediate surroundings.  Simultaneously, the Forest Service collected soil samples taken directly below the moss-bearing trees.  Between January 21-24, 2016, the Forest Service shared results of the soil testing with DEQ. 

158.    The results of those soil samples showed that the average arsenic and cadmium levels in the soil around Bullseye were below “background levels.”  The “background level” of a metal is the concentration at which it is expected to occur in an area because of both natural sources and general urban contamination from such sources as vehicle exhaust and wood combustion.  In other words, these soil samples showed no environmental contamination attributable to Bullseye at the same place as the moss samples.  These results were corroborated by two later, more extensive studies conducted by DEQ.   

159.    These soil results were never disclosed to the public.  Instead, on information and belief, DEQ and other Defendants knowingly concealed these results because (1) they did not fit the narrative that Bullseye was contaminating the environment and because (2) these results would have shown that the moss study did not establish environmental contamination.                     

F.        Defendants used Bullseye as a scapegoat to conceal from the public DEQ’s failure to establish any program to identify or control toxic waste emissions from small or medium-sized businesses.

            160.    Up until the last week in January, DEQ’s planned response to the moss and air tests was to have its permit writers work with Bullseye to come up with a solution.  As described above, this would have been the normal process followed by DEQ when faced with emissions concerns, including ones much larger than Bullseye’s.

161.    The press leaks caused a crisis atmosphere within DEQ.  The test data, flawed as it was, revealed a hidden truth about DEQ, namely (1) it had never established a state-wide plan for identifying and controlling toxic emissions, and (2) it had no idea what most non-major sources were emitting into the environment.

            162.    In early February, DEQ briefed the Governor’s Office about the Bullseye matter. On information and belief, from that point forward the Governor’s Office exercised direction and control over the state’s actions relating to Bullseye.   

163.    Following the press leaks, Defendants undertook a concerted effort to portray Bullseye as a reckless, renegade company through a campaign of incomplete, misleading, and false information.  This campaign included a series of administrative and regulatory actions for which there was no rational basis.

            164.    All the while, Defendants issued a series of self-congratulatory press releases and public statements to portray themselves as protectors of the environment.  In reality, while devoting extraordinary attention and resources to Bullseye, DEQ and Defendants remained ineffectual at dealing with much larger pollution issues, such as those discussed above.

            165.    On February 3, 2016, a DEQ public affairs official urged one of the people talking to the press to “just hammer home the most important message – the positive side of this.”  The public affairs official commented “The dynamics at HQ are weirder than usual right now.”

            166.    In an internal DEQ conference call on February 3, DEQ’s Portland Air Toxics Manager stated with respect to Bullseye that:

DEQ’s timeframe was accelerated and somewhat compromised by a reporter;

They did not have all the information necessary for a complete and accurate picture;

That the railyard near Bullseye had seen “increased use recently” that could be the source of emissions;

That Bullseye was in full compliance with its permit and that there were no EPA or federal rules that DEQ could enforce against Bullseye.

167.   In an exchange of emails on February 2 and 3, 2016, between DEQ and the Governor’s office regarding possible public comment, DEQ advised the Governor’s staff that Oregon’s benchmarks were different from federal health levels and that it was “very misleading to lump them together.” Subsequent public pronouncements, however, did exactly that.

168.    In an internal email on February 4, a DEQ employee discussed evaluation of the cadmium air samples, and cited EPA studies saying that “short-term screening levels are not designed to predict the occurrence of effects, and individual sample measurements greater than the screening levels do not imply an immediate health threat.”  Thereafter, Defendants deliberately ignored these studies and stated that Bullseye’s emissions in excess of screening levels were dangerous to health.

            169.    On February 8 or 9, a Bullseye representative spoke with OHA representatives and suggested that any discussion of cancer risk caused by Bullseye’s emissions should acknowledge that the overall cancer rate in the United States is approximately 33%.  Thus, an emission exceeding the benchmark by 200 times, which supposedly increases someone’s lifetime risk of getting cancer by 200 in a million, only increases the overall cancer risk to 33.02%.

            170.    On the morning of February 9, in an email discussing preparations for a public meeting that evening, Director Pedersen assured the Governor’s Office and the Director of OHA that: “We will not downplay the importance/seriousness of the cadmium situation.”

171.    On the evening of February 9, representatives of the Forest Service and Defendants appeared at a public meeting held at Cleveland High School.  They displayed a map purporting to show Bullseye and another colored glass manufacturer as the sources of all cadmium moss concentration in Portland.  In fact, the map was the result of statistical calculations designed to focus on Bullseye, not provide an accurate overview of cadmium pollution.  They did not display the map copied in paragraph 51 above to describe Portland’s overall air quality, undoubtedly because they realized that would focus public criticism on DEQ, not Bullseye.  An OHA official said the arsenic and cadmium readings near Bullseye elevated the risk of anyone breathing those concentrations over a lifetime by 200 in a million.  They even falsely represented that large companies such as those above had cleaner emissions than Bullseye, just because those companies had permits and some pollution controls.  There was no mention of (1) Portland’s air quality in terms of benchmarks, (2) the urban ambient air norms for cadmium and arsenic, or (3) the overall cancer rate.

172.    On February 17, an EPA official advised DEQ that EPA had established a screening level for hexavalent chromium when it studied air quality at Tubman School in North Portland in 2009.  That screening level was 580 nanograms per cubic meter. The EPA official noted that there were only two total chromium readings from the October 2015 monitoring near Bullseye that exceeded 400, and that the rest were only “double digits.”  He suggested the EPA screening level would be “appropriate and helpful for us to use … as a yardstick for communicating the risk associated with the SE PDX monitoring.”  In the Tubman School study, the EPA had also set an arsenic risk level of 150 ng/m3, while the average during the October 2015 monitoring was 31.  The screening level for cadmium was set at 30 ng/m3, and the average during the October 2015 monitoring was 29.4.  In its public statements about Bullseye, however, DEQ choose not to use or even disclose to the public the screening levels it had applied to a study of heavy metal pollution at a school in North Portland just a few years earlier.

173.    As a direct consequence of Defendants’ false and misleading statements, on February 17, 2016, a panel of speakers appeared at an elementary school near Bullseye.  A doctor claimed that everyone in the area needed blood and urine testing, and an environmental scientist said everyone should have the dirt on their property removed and remediated.  Both assertions later proved to be unfounded.  And a lawyer on the panel—introduced as a celebrity guest—told the audience that it was not plausible to sue DEQ, but that filing a class action law suit against Bullseye would be the “gold standard” for addressing their concerns and would produce lovely results.  Of course, he also mentioned that his firm specialized in such cases.

G.        Defendants disseminated false and misleading maps purporting to show results of the moss study to falsely paint Bullseye as the epicenter of industrial pollution in Portland.

            174.    On January 22, 2016, the Forest Service sent DEQ preliminary maps purporting to illustrate the moss study findings, cautioning that the maps should not be shared with others because they had not yet been published.

            175.    By January 29, 2016, DEQ began pressing the Forest Service to produce maps of the moss study that could be used for public dissemination by OHA and the Multnomah County Health Department.

            176.    Following the press leak, caution regarding the accuracy of the maps was discarded.  On February 3, 2016, in its first press statement, DEQ stated they were “working to produce maps that will outline the potentially affected area.”

            177.    On February 4, 2016, the Forest Service shared preliminary “cadmium risk” maps with DEQ.

             178.   On February 5, 2016, in an internal Forest Service discussion about releasing the maps, one of the moss study participants wrote that the Forest Service would not get adequate credit for the study without publication of the maps.  He said: “If we grasp this opportunity, the FS could become a world leader in the detection of urban pollution using bio-indicators, but only if we promptly publish this research.”   

            179.    On February 6, 2016, DEQ posted a Forest Service map on its website, hereinafter referred to as the Forest Service Cadmium Map.  The map purported to show cadmium moss concentration in Portland. In fact, it did not.  Rather, it was a “modeled prediction” of where cadmium would be found in Portland.  The “main objective” of the modeling, as the map’s authors later conceded, was to “identify stain-glass manufacturing as the most likely source of unknown atmospheric cadmium in Portland.” 

180.    This map was deeply misleading.  It made it appear that Bullseye and another glass company were the only cadmium emitters in Portland, and that they were responsible for a large swath of cadmium blanketing the urban core.  But from its inception, the moss study deliberately excluded moss sampling in major industrial areas, or in the railyard, which were known sources of cadmium.  Also, to create this picture, the authors (1) discounted or ignored moss samples that did not show high levels of cadmium, and (2) also discounted or ignored cadmium-heavy moss samples throughout the city that were not near Bullseye.  Finally, the authors engaged in a statistical calculation designed to focus on Bullseye and exclude other sources of cadmium.

            181.    On February 9, 2016, one of the moss study authors displayed the Forest Service Cadmium Map at the public gathering at Cleveland High School.

            182.    DEQ Director Dick Pedersen forwarded the Forest Service Cadmium Map  to members of the Oregon legislature.

            183.    On February 8, 2016, the Forest Service forwarded additional raw data to Multnomah County.

            184.    On February 9, 2016, Multnomah County produced a map purporting to show estimated cadmium air concentrations in Portland (hereinafter referred to as Multnomah County Cadmium Map).  Defendants distributed it to the news media and others.  The significance of this publication cannot be overstated.  It appeared on the nightly news throughout Portland and was published in most local newspapers.  It became the symbol of Bullseye’s purported misconduct. 

            185.    But there was one problem.  Defendants knew or should have known that map was false, because there was no scientific basis for predicting air quality based on metal in moss.  But in their enthusiasm to promote the moss study, and impugn Bullseye at every turn, defendants published the map without any attempt to verify it.   

            186.    On approximately February 17, 2016, The Oregonian published an additional series of maps that purported to show moss concentrations of arsenic and other metals radiating out from individual samples. DEQ provided those maps.

187.    Upon learning about the arsenic map’s publication, a Forest Service employee sent an email on February 16, 2016, stating: “I had no idea this map was going to be published in the Oregonian.  It was mainly meant to be visual corroborative evidence of the bullseye hotspot for Geoff and Sarah’s journal article submission. I would be happy if this was scrutinized further to see if there really are some problem areas with As [Arsenic] in the city.”  

            188.    Yet again, truth and accuracy were not the principles guiding publication and dissemination of the moss study:  On February 16, 2016, a moss study author stated that “with all the attention the moss research is getting” chances of obtaining funding were increased.

            189.    The following day, on February 16, 2016, the DEQ public affairs person who had previously released maps to The Oregonian suggested that DEQ should not wait for Forest Service approval before releasing more maps.

            190.    Six weeks later, on April 5, 2016, the two Forest Service employees who had enthusiastically distributed maps, published an article in a scientific journal about the moss study.  In that article, they acknowledged that moss could not be used to predict air concentrations, even though they had provided the initial draft of the Multnomah County Map, which did exactly that.  The article authors acknowledged they did not know (1) how long it had taken for metal to accumulate in the moss, (2) how long metal stayed in moss, or (3) the rate at which moss collected metal.  They also acknowledged an absence of sufficient data “to convert moss-based maps into atmospheric concentration values.”  In short, the Multnomah County Map was false, because it purported to convert moss samples into atmospheric concentrations.

            191.    On information and belief, by April 5, 2016, Defendants knew the map they had published was false, yet they did nothing to correct the falsehood or properly inform the public.  Quite the contrary, they continued their course of actions against Bullseye.  

            192.    On June 8, 2016, the Forest Service issued its final, formal report on the moss study.  It was written by the same people who ran the moss study and wrote the article above.  The only maps included in the Forest Service publication were dot maps, showing metals in hundreds of moss samples throughout Portland.  Neither the Forest Service Cadmium Map or the Multnomah County Cadmium Map were included.   Indeed, none of the many maps that purported to predict distributions of metals beyond individual samples were included, even though they had been provided to the media on various dates on or before February 2016. On information and belief, the Forest Service did not include those maps because they had determined them to be unreliable.  In the end, the Forest Service concluded only that “Mosses are a useful screening tool” that could be used to identify areas for air monitoring.

            193.    Remarkably, yet again, Defendants took no steps to correct the false statements made about Bullseye.

            194.    On July 10, 2016, the Forest Service issued a press release stating that “data from a study of metals concentrations in moss collected in the Portland area in 2013 had been subject to an unauthorized, premature disclosure.”  On information and belief, this press release was the Forest Service’s attempt to distance itself from the many false and misleading maps that had been widely distributed.  

            195.    As of the filing of this complaint, Multnomah County still has the false cadmium air concentration map posted on its website, and continues to misrepresent that “[t]he data correlates cadmium air concentrations with concentrations in moss analyzed in a U.S. Forest Service (link is external) project.”  The false map is also widely available on the internet.

H.        Defendants distributed a baseless contaminated vegetable warning, thereby continuing to stoke public fear. 

196.    On February 1, 2016, a DEQ official told a reporter that DEQ “would need to complete our spatial analysis and consult with OHA for that information” before providing any warnings about possible contamination of vegetables or dirt.  But Defendants did not wait.

197.    On February 15, 2016, Defendants issued a joint statement telling residents within one-half mile of Bullseye to “await further guidance before consuming backyard produce.” This was a baseless warning that unnecessarily stoked fear and anger in Bullseye’s neighbors.  Defendants already knew, from the undisclosed soil study mentioned above, that there was no unusual contamination of the soil around Bullseye.  In addition, there was no scientific basis to assume that metal in moss—which collects particles over the course of years—indicated anything about the metal content in seasonal vegetable plants. 

198.    On or around March 9, 2016, DEQ released results of extensive soil sampling it had conducted around Bullseye in February.  DEQ concluded that the levels of metals near Bullseye “were too low to be harmful to people, including children at the nearby day care.”  In fact, during this and subsequent soil sampling, DEQ identified soil samples containing elevated levels of arsenic and chromium, but concluded those samples were predictable consequences of the urban environment, and not linked to Bullseye.

199.    Contemporaneous with release of the soil study results, Defendants issued a joint press release saying that it was safe to eat produce from neighborhood gardens around Bullseye.  But this was no revelation to Defendants; they had known all along that the soil around Bullseye did not pose a danger.  Defendants could have—and should have—told the public about the original soil sample results a month earlier, instead of concealing them.

200.    By then, however, the damage to Bullseye from Defendants’ false maps and baseless contaminated vegetable warning had been done. On March 3, 2016, 18 days after the Defendants’ press release, Bullseye was served with a $1.2 billion class action lawsuit, filed by the lawyer who extoled the virtues of that approach at the neighborhood meeting on February 17.  The suit was largely based on neighbors’ claims they were afraid to eat vegetables from their gardens, a fear created and inflamed by the Defendants’ false and misleading statements.

I.         Defendants engaged in bad faith negotiations for an air emissions agreement with Bullseye, disguising their intention to take coercive actions, while Bullseye was earnestly trying to understand and respond to emissions concerns.

201.    As noted above, beginning in February, Bullseye began negotiating with DEQ for an Air Emissions Agreement.  Bullseye entered these negotiations earnestly trying to understand what DEQ’s concerns were, and intending to address public health. Bullseye had always believed DEQ’s permits were protective of the environment and public health, and was shocked to find itself compared to benchmarks as if they were air emissions standards.  Thus, Bullseye entered these negotiations hoping to agree on steps it could take to resolve emissions concerns while continuing to operate its facility.  Bullseye assumed DEQ would do the same, and expected the parties would reach agreement.  DEQ commonly conducts such negotiations when a company is facing an emissions problem.

202.    From the outset of the negotiations, Bullseye agreed it would install a baghouse pollution control device as soon as possible. The parties agreed an appropriate target date for that installation was September 1, 2016.

203.    The negotiations largely involved controlling Bullseye’s emissions before completion of the baghouse.  Bullseye constructed a pilot, temporary baghouse, and agreed to use cadmium only in furnaces connected to it.  Bullseye also ceased using chrome as the parties explored what form of chrome Bullseye might be emitting.  Otherwise, the parties negotiated over controlling Bullseye’s emissions from uncontrolled furnaces by limiting the volume of metals placed into the furnaces.

204.    On February 12, 2016, Bullseye met with representatives of DEQ and ODOJ.  At that meeting, the DEQ representative conceded that the October 2015 air monitoring—because it only covered 18 days—did not provide sufficient data to evaluate air quality.

            205.    DEQ Director Pedersen phoned Bullseye’s owners after the meeting, and assured them they would have an agreement within one to two weeks.

            206.  Throughout February, there were a series of meetings between Bullseye and DEQ to negotiate the emissions agreement.  There were also numerous draft agreements exchanged.  During these communications, a DEQ compliance officer stated that normally Bullseye would have three years to install emissions controls.  When asked why Bullseye was not given more time, she said “This isn’t a normal situation and DEQ doesn’t have any credibility right now.”

            207.  By March 3, 2016, Bullseye believed it had reached an agreement with DEQ, and had been assured the agreement would be signed on that day. Yet, on that day, Bullseye was informed that the “optics weren’t right” for the Governor, and that the agreement would be delayed until the following week.  This was a pivotal moment, because DEQ had the ability to bind Bullseye to agreed-upon terms and effectively settle all emissions concerns on that day.  But subsequent events revealed that something entirely different was going on behind the scenes.  Evidently, Defendants were not satisfied with addressing emission concerns by finalizing an agreement, when they could scapegoat Bullseye and engage in a series of grand-standing public gestures for political, not public safety reasons.           

208.    On March 8, 2016 DEQ Deputy Director Joni Hammond wrote a letter to

Bullseye which, among other things, stated that DEQ would be asking the Environmental Quality Commission (EQC) to draft temporary rules for glass manufacturers. 

209.    Temporary rule-making, of course, was completely unnecessary, because DEQ simply could have signed the emissions agreement as scheduled five days earlier.  In fact, the EQC’s authority to issue temporary rules is limited to situations where “failure to act promptly will result in serious prejudice to the public interest.”  The public interest could have been fully served by executing the agreement that Bullseye wanted to sign.  Clearly, that was put on hold for political reasons because there was no such risk; Bullseye wanted to sign an agreement with DEQ.   

            210.    During the week of March 22, 2016, Bullseye’s owners met personally with DEQ Deputy Director Hammond.  In an ensuing email, they made clear they had agreed to complete baghouse installation by September 1, and that they would shortly sign a five-year agreement to install emissions controls and limit HAPs.  They implored Ms. Hammond not to move forward with a temporary rule, because doing so would permanently tarnish Bullseye’s reputation. Instead, they asked her to “use the public comments you receive on this temporary rule to work with the legislation [sic] to create air toxic standards for all small business that use HAPs.” 

            211.    Ms. Hammond did not disclose at that meeting that she, together with Defendants, had already placed in motion a series of actions unlike anything DEQ had ever done.

J.         Defendants unlawfully asserted federal regulatory control over Bullseye, after nearly a decade of telling Bullseye the regulation did not apply, so that they could threaten massive fines and coerce Bullseye.      

212.    On March 9, 2016, two weeks before Deputy Director Hammond met with Bullseye’s owners, she wrote a letter to EPA, asking it to reinterpret and retroactively apply a regulation that had been in place for almost ten years.

213.    As noted above, in 2008, EPA established a NESHAP for Glass Manufacturing Area Sources, 40 CFR 63.1148 (Subpart SSSSSS) [hereinafter referred to as 6S].  The purpose of 6S was to control metal emissions from glass manufacturing facilities. EPA proposed the NESHAP after studying large float and container glass manufacturers, 1,000 times the size of Bullseye, such as bottle manufacturers like Owens Brockway.  Those factories operate “continuous furnaces,” a term that has a specific meaning in the glass industry.  That term describes a furnace that is continuously being fed raw materials, continuously melting those materials, and producing a continuous, uninterrupted flow of finished glass for fabrication.  These furnaces produce glass 24-hours a day, seven days a week. Thus, they continuously produce emissions.  In fact, the emissions testing requirements of 6S can only be employed on a furnace that is melting continuously, and at a constant rate, for 24 hours.  Continuous furnaces are huge, and can produce as much glass in one day as Bullseye produces in a year.

214.    When EPA solicited public comment on a draft of 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 furnaces, and explained how its furnaces were 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 it only applied to continuous furnaces.  It is worth emphasizing:  EPA changed this regulation specifically to exclude Bullseye’s furnaces.  This change clarified that the rules were meant for large manufacturers, not Bullseye or other small colored glass manufacturers.  

215.    Over the ensuing years, both DEQ and EPA took the position that Bullseye’s periodic, batch furnaces were not subject to 6S.  During that time, DEQ conducted on-site inspections of Bullseye’s facility and furnaces and had the opportunity to observe them in operation. 

DEQ’s 2011 ACDP permit for Bullseye stated:


“40 CFR 63, Subpart SSSSSS, NESHAP for Glass Manufacturing Area Sources, is not applicable to this facility because the regulation applies only to continuous furnaces. Bullseye operates only periodic furnaces.”


On July 30, 2015, in an email discussion of the moss study, a DEQ air official commented that 6S did not apply to Bullseye because it did not have a continuous furnace.


On February 4, 2016, EPA’s Regional Air Toxic Coordinator said in an email to DEQ: “It’s a bummer that they don’t have a continuous furnace.  That makes them not subject to the Glass Manufacturer Area Source Rule, 40 CFR Subpart 6S.”


At various public appearances, and in numerous statements to the news media, a variety of DEQ officials reiterated that Bullseye did not fall under Rule 6S.


216.    In her March 9, 2016 letter, Deputy Director Hammond requested a “reevaluation” and “clarification” of whether Bullseye’s furnaces, which DEQ itself had described as “periodic” for nine years, were instead “continuous.”  No one told Bullseye that Oregon had changed its mind about this and was seeking this “clarification” in writing.  Nor did anyone give Bullseye the chance to be heard before DEQ arrived at this position.  Clearly, Defendants’ negotiations with Bullseye were not candid attempts at problem-solving, as Bullseye believed.  Rather, Defendants were scheming to impose unlawful regulatory authority over Bullseye.

217.    DEQ knew what a “continuous” furnace was, and therefore knew the premise of this request was false.  As noted above, Owens Brockway Glass, right here in Portland, has four continuous furnaces, and DEQ described them as such in its permitting documents.  Owens Brockway’s furnaces produce 1,000 times the glass that Bullseye’s do.  Those are precisely the type of furnaces 6S was meant to apply to.

218.    This unprincipled request by DEQ—seeking to reverse a position it had taken and upon which Bullseye had relied—was completely unnecessary.  At the time of the request, and throughout the time it was under consideration, Bullseye and DEQ were on the brink of signing an emission agreement.  Moreover, DEQ was seeking temporary rules applicable to Bullseye, which were in fact promulgated on April 21.

219.    On information and belief, this action was taken so that DEQ and the Governor’s office could present themselves as being tough on pollution.  It was also designed to portray Bullseye as a company that had been operating in violation of the law, and to divert attention from DEQ’s feckless performance on toxic emissions controls.  In addition, on information and belief, Defendants took this action in response to political pressure, and only after DEQ had consulted with EPA about ways to disingenuously circumvent their past interpretations of this rule.  

220.    On April 12, 2016, EPA issued a “non-binding regulatory interpretation” asserting that DEQ had “discretion” to apply 6S to Bullseye. Once again, no one told Bullseye about this, or gave Bullseye the chance to respond.

221.     On April 13, 2016, DEQ wrote a letter advising Bullseye that it was now subject to 6S because its furnaces were “continuous.”  DEQ’s letter did not acknowledge, or attempt to explain, how it could have reached this conclusion when Bullseye was operating the same furnaces, in the same way, as it had been throughout the time DEQ described them as “periodic.”

222.    Because 6S is a federal regulation, it is supposed to be applied consistently throughout the United States.  On information and belief, Oregon is the only state that has sought to apply 6S to small, colored art glass manufacturers.

223.    Incredibly, on April 25, 2016, DEQ threatened enforcement action against Bullseye for failing to comply with 6S since 2010, even though Bullseye’s 2011 DEQ permit declared that 6S was not applicable to Bullseye.  In other words, DEQ threatened to punish Bullseye for doing exactly what DEQ told it to do.  The fines threatened in DEQ’s pre-enforcement notice could have been as high as $1.5 million.

224.    Following DEQ’s commandeering of 6S authority, DEQ’s new proposed agreement with Bullseye required it to abide by all the standards and procedures of 6S.  For good reason, however, Bullseye believed DEQ’s reversal of positions was improper, and that DEQ was wrong to apply 6S to its operations.

K.        Defendants grossly overstated the significance of two six-minute visible emissions from Bullseye’s furnaces to strengthen their shaky claim that they were protecting the environment.

225.    On April 28, 2016, inspectors visited Bullseye to inspect their pilot baghouse and furnace reports.  Before leaving, an agent decided to view the “opacity” of one of Bullseye’s stacks.  Bullseye’s permit required that the opacity of its emissions not exceed 20%.  DEQ asserted that they observed two six-minute emissions that were at 24% and 28%, respectively.

226.    On information and belief, these readings were not valid because they were taken from the wrong place, too late in the day, and when steam was emitting from other stacks nearby.  These tests failed to meet the requirements of EPA Method 9.

227.    At that time, Bullseye’s emissions were being closely monitored by four air monitors surrounding it, and there were no excess emissions on those days.  So, this minor opacity finding did not indicate toxic emissions; indeed, the visible emissions were mostly steam.

228.    Also, at this time, Bullseye had committed to having baghouse controls in place and thereby eliminate opacity issues by September 1.

229.    Nonetheless, DEQ issued a pre-enforcement notice to Bullseye, requiring it to establish a corrective action plan and submit it to DEQ in 30 days.  Not surprisingly, immediately following DEQ’s pre-enforcement notice, DEQ issued a press release boasting of its accomplishments.

230.    Although Bullseye was already on track to install emissions controls, it did as DEQ demanded:  Bullseye contracted for the required study and improvement plan.  An independent, certified environmental consultant made 72 separate observations in compliance with EPA procedures, and observed only one emissions above 20%.  On July 7, 2016, there was a six-minute reading of 23.5%.

231.    Meanwhile, in Corvallis, neighbors of Hollingsworth and Voss have spent years looking at this large plume, while DEQ ploddingly “worked with” the company to fix its emissions problems:

            232.     On information and belief, threatening enforcement action against Bullseye for such minor opacity events was irrational and done for an improper purpose.


L.        Defendants unlawfully and deceitfully invoked the Governor’s Cease and Desist authority.

            233.    Whenever it appears that “air contamination is presenting an imminent and substantial endangerment to the health of persons,” Oregon’s Governor has authority under ORS 468.115(1), to enter an order against the person causing the pollution “to cease and desist from the action causing the pollution or contamination.”  On information and belief, this authority has never before been used in an air emissions case, even on companies emitting thousands of pounds of HAPs in excess of their permit.  

234.    Oregon does not have an enforceable standard for lead emissions.   Oregon has established a lead emissions benchmark of annual daily-average emissions of 150 ng/m3.  There is no benchmark for one-day emissions.

            235.    The EPA does not have a one-day standard for lead emissions.  The EPA emissions standard is 150 mg/n3, computed on a three-month daily rolling average.

            236.    On March 24, 2016, DEQ and OHA announced they had established a new “screening level” for daily lead emissions of 150 ng/m3.  This was not an emissions limit; it was not even a benchmark, which would have required notice and comment rulemaking.  Rather, it was a number that DEQ and OHA decided to use to “provide context to air monitoring results.”

            237.    During the October air tests, when there were no emissions controls in place, the average daily lead emissions for the 18 monitored days was 42.9 ng/m3.  On one day, there was a high reading of 248.3. DEQ appropriately noted the one-day spike as a matter of concern, but did not characterize that spike as harmful, or take any action because of the spike.  During the October air tests, Bullseye melted an average of 67 pounds per day of lead.  On a few days, it melted 132, 139, and 141 pounds of lead without causing a spike in the air monitor readings. 

            238.    Although DEQ was well aware of these facts, it did not seek lead usage limits, emission controls, or emission testing beginning with the March 10, 2016 draft of the proposed air quality agreement.  Moreover, at no point did DEQ suggest or require that Bullseye use lead in a controlled furnace.

            239.    New air sampling began in February 9, 2016.  Between that day and May 8, 2016, the average lead concentration reading in the air monitor at the daycare near Bullseye was approximately 16 ng/m3.  The highest single day’s lead reading was 115 ng/m3.  Obviously, Bullseye’s emissions during this time did not exceed any screening level, benchmark, or emissions limit.

            240.    On May 9 and 10, 2016, Bullseye melted 96 and 134 pounds of lead, respectively.  They used an increased amount of lead for only those two days.  While high, those quantities did not exceed amounts that had been melted previously in uncontrolled furnaces without incident. 

241.    The monitored air concentration of lead for those two days was 416 ng/m3 and 669 ng/m3, respectively.  While those two days were high, neither Bullseye’s annual nor three-month average came anywhere close to 150 ng/m3.

            242.    At the time this occurred, Bullseye was in daily contact with DEQ.  Bullseye was operating under the Environmental Quality Commission’s temporary rules, which had gone into effect on May 1.  Importantly, Bullseye had made it clear to DEQ by April 21 that it intended to comply with the rules, and sought input from DEQ on how to do so. DEQ provided a draft of an agreement with Bullseye on May 4, and the parties were busily trying to schedule a meeting for follow-up.  Bullseye was providing daily reports of its furnace operations, weekly reports of its HAPs use, and copies of its trade-secret, proprietary “batch tickets,” which identify the quantity of metal introduced into a batch.  Bullseye was responsive to all DEQ’s information requests.  Also, Bullseye frequently apprised DEQ of its repair work on the baghouse.  Inspectors visited Bullseye and toured the facility on May 18, 2016.  Bullseye had a meeting scheduled with DEQ Acting Director Shepherd for May 20, 2016

            243.    On the morning of May 19, 2016, DEQ received the air monitoring results showing increased lead emissions from ten days earlier, discussed above.  DEQ did not advise Bullseye of the readings, nor inquire what had caused them.  Notably, as of May 19, Bullseye’s lead usage had decreased to normal, and air readings for those days were well below any threshold.

            244.    Later that same day, DEQ Acting Director Shepard and OHA Director Lynne Saxton sent Governor Brown a letter asking that she invoke her Cease and Desist authority against Bullseye.  The letter stated that, “The current national ambient air quality standard for lead is 150 nanograms per cubic meter.”  But this assertion was both false and misleading. The national air standard for lead is 150 ng/m3 on a three-month daily average. Bullseye never exceeded that standard. On information and belief, Shepherd and Saxton knowingly misstated the national standard to make it look like Bullseye had exceeded a health standard when it had not.  Moreover, this assertion was based on outdated data, because it was based on a two-day spike that occurred ten days earlier.                        

            245.    In addition, the letter stated that since October 2015, the air monitoring data “indicate a pattern of unpredictable emissions of toxic metals at potentially dangerous levels.”  In months of negotiations and air monitoring, DEQ had never communicated any such concern to Bullseye.  Indeed, at that time Bullseye was not even using arsenic, or chromium in any of its processes.  On information and belief, there was no pattern of emissions at dangerous levels.

            246.    Neither Shepherd nor Saxton presented any other basis for asserting that the two aberrant lead emission spikes posed a danger.  For this reason, their request for a cease and desist order was based on a false premise.  In fact, there was no “imminent and substantial danger” to anyone’s heath based on this two-day event.  This is especially true because Bullseye had reverted to its normal manufacturing practices and its emission had returned to normal.  Furthermore, all DEQ needed to do was ask Bullseye to lower its usage of lead. This DEQ did not do.

247.    Instead, in response to Director Saxton and Acting Director Shepherd’s letter, Governor Brown directed DEQ to issue a Cease and Desist Order.

            248.    On May 19, 2016 Acting Director Shepherd issued a Cease and Desist Order (“Order”), forbidding Bullseye from using eight different metals in an uncontrolled furnace. The Order restated the falsehood that “The current national ambient air quality standard for lead is 150 nanograms per cubic meter.”  Moreover, the Order forbade Bullseye from using cobalt, manganese, nickel, and selenium. Yet despite more than three months of continuous monitoring, DEQ did not articulate a single time when data from air monitors had shown excessive emissions of any of these metals.  Notably, a DEQ spokesman subsequently acknowledged that Bullseye’s emissions for these other metals were not dangerous.

            249.    Because of the Order, Bullseye effectively was shut down.  On information and belief, the Cease and Desist was used as a means of forcing Bullseye to agree to the requirements of 6S, when the state lacked legal authority to do so.

            250.    In response to press inquiries about Bullseye, Dr. Fred Berman Director of the Toxicology Information Center at Oregon Institute of Occupational Health Sciences, stated that “any air concentration that would produce toxicity within 24 hours would be…many thousands of times higher than the 150 ng benchmark. Defendants ignored this opinion and continued to assert that Bullseye’s two-day emission spike represented an “imminent and substantial” danger.

            251.    In fact, Defendants proceeded to use the Order to coerce Bullseye.  On May 24, Bullseye representatives met with DEQ and proposed production limits that would answer any emissions concerns.  DEQ representatives responded favorably, but said they needed to check with the Governor’s Office.

252. On May 26, 2016, the Oregon Department of Justice (ODOJ) sent Bullseye a proposed “Mutual Agreement and Final Order” (MAO) that would allow Bullseye to resume operations.  In the transmittal, ODOJ threatened that “Unless Bullseye signs an agreed form of MAO by Noon tomorrow, DEQ will proceed to recommend that the Governor renew the Cease and Desist Order for another ten days.”

253.    The initial proposed MAO, in addition to its impossible deadline, asked Bullseye to agree that the lead “screening level” was actually an “emission standard,” in an apparent attempt by Defendants to white-out the falsehoods of their Cease and Desist applications.  Also, the language of the draft failed adequately to acknowledge Bullseye’s good faith disagreement with DEQ’s retroactive application of 6S.  Despite the overwhelming pressure, Bullseye could not in good faith sign that agreement.  Defendants followed through on their threat and extended the Cease and Desist.

            254.    The Governor’s statutory authority to issue a Cease and Desist was created to address “imminent and substantial endangerment” to health.  It was not created to provide Defendants a bargaining tool (used more like a bargaining hammer) to force companies to agree to onerous and improper demands. At the time the Order was reissued, Defendants knew there was no danger to the environment or the public health, and there was no rational basis for them to claim there was.

            255.    As noted above, in twelve months preceding the two-day increase in air monitor lead results, ESCO emitted 54 pounds of lead, an average of a pound per week.  A pound of lead is 450,000,000 times the amount of lead detected in the air monitor results on May 8 and 9.

256.    Defendants’ irrational conduct is further shown by their subsequent disingenuous statements justifying what they did.  As noted above, DEQ conducted air emissions testing at AmeriTies in The Dalles during June 2016.  Those tests showed readings for the toxin Naphthalene that averaged more than 100 times the Oregon benchmark, and at one point reached a high of 179 times the benchmark.  This occurred after decades of problems with AmeriTies’ emissions.  When concerned citizens asked why DEQ had not used its Cease and Desist authority to stop AmeriTies’ emissions, DEQ provided this dishonest response:

This explanation was just false.  Once again, DEQ turned to the phony rationale that Bullseye exceeded a “short-term (or 24-hour) exposure limit,” when there was no such limit.  A screening level is not an emissions limit.  And the assertion that Bullseye’s emissions were in some way inconsistent as opposed to AmeriTies is just fallacy.  Bullseye’s purported “inconsistency” stemmed from a two-day spike during three months of testing.  AmeriTies, on the other hand, was consistently emitting more than 100 times the benchmark level, probably for decades.  If anything, the consistency of AmeriTies’ high emissions shows the unfair and disparate treatment Bullseye received.

            257.    In response to the deceptive statements in the Order about the “lead standard,” on May 20 and 23, 2016, the Multnomah County Health Department recommended and offered free lead testing for children and pregnant women within one-half mile of Bullseye.  On May 25, Multnomah County announced it had tested 192 people.  Significantly, all had normal levels of lead in their blood.

            258.    On June 6, 2016, faced with the closure of its business—which would have put 150 employees out of work—and under duress, Bullseye had no choice but to execute a Mutual Agreement and Final Order (MAO) with DEQ that required Bullseye to abide by Regulation 6S.    

            259.    DEQ Acting Director Shepherd had refused even to meet with Bullseye unless and until it executed the MAO.  When he finally met with Bullseye on June 28, he likened them to criminals on probation, and said they could not be trusted.  When the other DEQ representatives at the meetings—the ones who were actually doing business with Bullseye—were asked if they felt that Bullseye had been untrustworthy or uncooperative, the answer was “no.”  They felt that Bullseye had been trustworthy and cooperative.

M.       Defendants induced Oregon’s Environmental Quality Commission to selectively and irrationally create rules applicable only to Bullseye that are more restrictive than rules imposed on major polluters.

            260.    As noted above, DEQ asked the Environmental Quality Commission (EQC) to establish rules for the colored glass industry.  On information and belief, the ensuing actions of the EQC were induced and procured by actions of the Defendants.  Although Bullseye questioned the need for such rules, it has nonetheless abided by them and will continue to do so.

            261.    On September 29, 2016, the Commission met to consider the final, permanent rules.  A new version of the rules containing material changes was distributed just a few days before the hearing.  Importantly, the Commission did not provide any notice and comment period for the new draft.  When Bullseye asked to speak at the September 29 meeting, to address the new requirements, it was denied an opportunity to be heard.  This was a violation of EQC’s procedural rules.   

            262.    The permanent rules imposed on Bullseye—and only Bullseye—are among the most stringent air emission standards imposed on any Oregon business.  Two aspects of the rules provide good examples.

            263.    First, the rules understandably sought to impose limits on Bullseye’s chromium emissions. But, the Commission imposed a chromium emissions screening level of 0.5 ng/m3 on Bullseye.  This is a concentration limit used for chromium acid mist, which Bullseye’s operations do not create.  Chromic acid mist is produced by chrome platers who dissolve chrome in acid baths.  For example, Jeld-Wen uses dissolved chromium when it applies chrome plating to metal parts. The EPA has recognized that chrome emissions from glass manufacturing are solid particulate.  The standard for particulate chromium emissions is 300 ng/m3. Presently, Cleaner Air Oregon is proposing standards for the rest of Oregon’s industry of 330 ng/m3.  There is no rational basis for treating Bullseye differently.

            264.    Second, the permanent rules place a restriction on Bullseye’s baghouse emissions for particulate matter.  Bullseye may not emit particulate matter in excess of .005 grains per dry standard cubic foot (dsqf).  This standard is more restrictive than the standard applied to the rest of Oregon industry, which allow the emission of particulate matter 20 times higher than Bullseye. Again, the state can articulate no rational basis for treating Bullseye differently.

N.        Bullseye has suffered immediate and lasting damage to its property interests because of Defendants’ actions.

            265.    Because of Defendants’ actions, the goodwill Bullseye had established over decades, together with its ongoing business, suffered immediate and ongoing injury.

            266.    Examples of the damages to Bullseye’s goodwill include:

On February 12, 2016, the Portland Public Schools Creative Science School cancelled plans with Bullseye to develop a program for elementary school kids to use glass as a tool that bridges the disciplines or art and science, because Bullseye had “poisoned a community.”

On February 13, 2016, Bullseye, its employees, and even a few community voices who tried to add reason to the dialogue, began receiving threatening phone calls and emails.

On February 16, 2016, about 80 of Bullseye’s neighbors staged a demonstration with news media on the street outside of Bullseye, accusing it of poisoning children and vegetables.

On February 17, 2016, a neighbor wrote to Bullseye’s world-wide distributors blaming Bullseye for cancer, thyroid issues, autoimmune disorders, and lung and kidney disease, and asking the distributors to suspend buying from Bullseye until it installed pollution controls.

On February 19, 2016, a representative of TriMet, which was using Bullseye glass for mosaics in construction projects, suggested the contractual relationship was in jeopardy because Bullseye was “dangerous” and “untrustworthy.”

On February 29, 2016, a window at Bullseye was smashed by a vandal.

On March 4, 2016, a charitable organization cancelled an event planned for Bullseye’s resource center.

In May 2016, a supplier suspended Bullseye’s credit and required payment in advance for raw materials.

In February 2017, Bullseye’s long-time Australian partner said Bullseye’s bad press had caused the Australian market to lose confidence in Bullseye and the industry as a whole.

In June 2017, a local Portland art glass school and Bullseye reseller closed because of business lost following Bullseye’s bad publicity.

In July 2017, a long-time customer cancelled a purchase contract, fearing that Bullseye might go bankrupt. 

On July 28, 2017, a posting on the Eastside Portland Air Coalition Facebook page advocated “vigilante Justice,” including burning down the factory, burning down the owner’s homes, and hanging the owners from the Hawthorne Bridge.


267.    Despite a solid pattern of growth over many years, Bullseye’s earnings have dropped.  Retail sales at its Portland store are down by 15%, and the company’s overall sales are down by 10%.

268.    On information and belief, the loss of goodwill sustained by Bullseye because of Defendants’ actions to date, caused damages and foreseeable damages of approximately $30,000,000.



Count One – Civil Rights and Conspiracy to Commit Civil Rights Violations

            269.    All the foregoing allegations are incorporated into this cause of action.

            270.    The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”

            271.    Corporations are “persons” within the meaning of this provision.

            272.    Under Oregon law, businesses have a property interest in their “goodwill.”  That term is defined to include: “favor or advantage in the way of custom that a business has acquired beyond the mere value of what it sells whether due to the personality of those conducting it, the nature of its location, its reputation for skill or promptitude or any other circumstance incidental to the business and tending to make it permanent.”

273.    At all times relevant to this complaint, plaintiff Bullseye Corporation enjoyed substantial goodwill.  This goodwill was the product of, among other things, more than 40 years of Bullseye’s skillful and innovative product design, its prompt delivery of high-quality products, its commitment to promoting colored glass for both art and architectural uses, its environmental record, and its commitment to the community around it.

274.   Plaintiff Bullseye Glass alleges that Defendants deprived and conspired to deprive it of its constitutionally protected property interest in its goodwill, without due process of law.  Defendants, acting under color of law, committed due process violations by directing arbitrary, capricious, unlawful, and irrational acts, at Bullseye, as detailed above.  Each of Defendants’ acts, individually and collectively, lacked any rational relationship to any legitimate governmental interest.

275.    This conduct violates 42 U.S.C. §§ 1983 and 1985.

Count Two — Declaratory and Injunctive Relief

            276.    All the foregoing allegations are incorporated into this cause of action.

277.    Under federal law, courts are empowered to resolve “a case of actual controversy” by declaring “the rights and other legal relations of any interested party seeking such a declaration.”  28 U.S.C. § 2201.

278.    There is a real and actual controversy between Bullseye and Defendant Whitman, in his capacity as Director of the Oregon Department of Environmental Quality, regarding DEQ’s acts alleged above, including its asserted authority to apply a specific federal regulation to Bullseye, namely 40 CFR 63.1148 (Subpart SSSSSS). 

279.    By unlawfully asserting regulatory authority over Bullseye under 40 CFR 63.1148 (Subpart SSSSSS), as adopted under state law in OAR 340-244-0220, Defendant Whitman has caused Bullseye to be subjected to additional, unwarranted regulatory obligations and limitations on its operations to which it would not otherwise be subject, and to risk liability under both state and federal law for engaging in operations that should not be subject to 40 CFR 63.1148 (Subpart SSSSSS). The controversy between Bullseye and Defendant Whitman is thus real and substantial and demands specific relief through a decree of conclusive character.

            280.    For the reasons set forth in detail above, Plaintiff Bullseye Glass seeks a declaration that it is not subject to 40 CFR 63.1148 (Subpart SSSSSS), as adopted under state law in OAR 340-244-0220, and that Oregon’s assertion of authority under that regulation was unlawful.


            Plaintiffs request a judgment and order of damages and attorney’s fees as follows:

On Count One

            A.        Declaring that Defendants have deprived and conspired to deprive Bullseye Glass of its property interests without due process of law, in violation of 42. U.S.C. §§ 1983 and 1985.

            B.        Enjoining Defendants from further depriving Bullseye of its due process property rights, the exact scope of such injunction to be determined after discovery.

            C.        Granting damages against the Multnomah County Health Department in an amount equal to Bullseye’s loss of goodwill, in an amount of $30 million.

            D.        Granting such other prospective relief as may be just and equitable, including ancillary relief.

            E.        Awarding attorney’s fees incurred by Plaintiff in preparing, filing and prosecuting this action.

On Count Two

            A.        Declaring that 40 CFR 63.1148 (Subpart SSSSSS) does not apply to Bullseye.

            B.        Declaring that defendant Whitman’s assertion of authority under 40 CFR 63.1148 (Subpart SSSSSS) to impose certain regulations on Bullseye was unlawful.

            C.        Enjoining Defendants from further asserting authority over Bullseye under 40 CFR 63.1148 (Subpart SSSSSS).

            D.        Granting such other prospective equitable relief as may be just and equitable, including ancillary relief.

DATED this __ day of December 2017.


                                                                                    GRM LAW GROUP


By:      ___________________________

                                                                                    ALLAN M. GARTEN, OSB# 821360




                                                                                    KENT S. ROBINSON, OSB# 086251




                                                                                    CARRIE MENIKOFF, OSB#034045





return to top