In early February, 2016, the Oregon Department of Environmental Quality (DEQ) announced that the air quality in a portion of Southeast Portland had “arsenic at levels 159 times above the state’s safety goal and cadmium levels 49 times higher[.]” The health effects from prolonged exposure to air of this quality increase the chances of getting cancer.
Residents of the area filed a class action suit on March 3rd, 2016 against Bullseye, the glass factory responsible for the elevated levels of arsenic and cadmium in the air. The suit seeks an injunction to cease Bullseye’s operations until safety controls can be installed, which the company has already promised to do. Further, the suit seeks to compel Bullseye to clean up any pollution they caused, and to provide blood and urine testing to anyone living within 1.5 miles of the factory. The suit does not seek monetary damages “but says such a request is coming, noting that the plaintiffs believe their property values have decreased.”
The suit’s claims for relief are tortious—one count of nuisance and one count of common law trespass. The class certification seems likely to be granted as there are well-defined class populations, that are sufficiently numerous, and have commonly suffered from the same act. Further, the class representatives are ostensibly typical of the class population, and a class action suit is the clearly superior method to make the damaged parties whole.
The first claim—nuisance—is strong. A traditional “coming to the nuisance” defense does not appear to be a strong defense to the claim, as the nature of the nuisance was not readily apparent. Although residents of the area knew of the nuisance, the smoke stack, when they settled, the toxicity of the smoke was not obvious. Further, the inherent danger of this nuisance, and the fact that the class population could not have perceived it makes the defense even more flimsy.
The second claim—common law trespass—is strong as well. The claim is that the pollution from the smoke stack was spewed from the factory, and ultimately landed and rested on the property of others without license or assent. Under Oregon law, smoke, and its residual effects, that transfer from one property to another is trespass under statute.
The suit will likely not come to trial. The evidence of the wrongdoing is obvious and damning. If the suit were to settle, it would be interesting to see if Bullseye survives. Bullseye can refrain from its activities until it gets the proper safety controls. However, the blood and urine testing is likely to be costly, and that cost pales in comparison to what could be owed if property remediation is required. Further, ongoing suits from people with connected health issues, like cancer, mean that liability could extend for many years to come. It is unclear what sorts of insurance Bullseye has, or the value of the company, but with an environmental disaster of this magnitude, it is seemingly possible that Bullseye will go out of business.
The Bullseye controversy resulted in increased exposure to pollution threats in inner cities. Both Oregon Senators, Ron Wyden and Jeff Merkely, have requested for increased funding from the United States Environmental Protection Agency for toxic air monitoring so as to stem potential future disasters.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
 FRCP 23.1
 Ream v. Keen, 838 P.2d 1073, 1074 (1992)