Lawsuit Filed by Southeast Portland Neighbors Against Bullseye Glass Co.

11/28/2017 3:27 PM
16CV07002
7
IN THE CIRCUIT COURT OF THE STATE OF OREGON
8 FOR THE COUNTY OF MULTNOMAH
9 SCOTT MEEKER and ERIN MEEKER,

KELLY GOODWIN, BRUCE ELY and
10 KRISTI HAUKE, ELIZABETH BORTE and CIVIL ACTION NO. 16CV07002
RINO PASINI, CHRISTIAN MINER, and
11 JUDY SANSERI and HOWARD BANICH; PLAINTIFFS’ MEMORANDUM IN
individually and on behalf of all others SUPPORT OF MOTION FOR CLASS
12 similarly situated,
CERTIFICATION
13 Plaintiffs,
14 v.
15
BULLSEYE GLASS CO., an Oregon
16 corporation,
17 Defendant.
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30 P LAINT IF FS ’ ME MO R AN DU M IN KE LLE R R O HRB AC K L.L.P .
SUP P O RT O F M OT ION FO R C LAS S 1 2 0 1 T hird Av e n ue , S u it e 3 2 0 0
31 CE RT IFI C AT IO N Sea tt le, W A 9 8 1 0 1
1
Table of Contents
2 I. INTRODUCTION ..................................................................................................................... 1
3 II. BACKGROUND ...................................................................................................................... 2

4 A. The Bullseye Plume area is a predominantly residential neighborhood that
became a dumping ground for Bullseye’s emissions. ........................................... 2
5
6 B. Bullseye has been melting toxic metals in its furnaces since the 1970s
without emissions controls.................................................................................... 3
7
C. Plaintiffs’ experts can show that Bullseye’s emissions have polluted a
8 significant portion of Southeast Portland. ............................................................. 4
9 D. Bullseye’s emissions have stigmatized the neighborhood around Bullseye
as less desirable, suppressing home values. .......................................................... 6
10
III. LEGAL STANDARDS .......................................................................................................... 6
11
12 IV. CLASS DEFINITION ............................................................................................................ 7
13 V. ARGUMENT ........................................................................................................................... 8
14 A. The proposed subclasses are of the nature routinely certified by courts in

analogous cases. .................................................................................................... 8
15
B. Plaintiffs have satisfied ORCP 32 A’s requirements of numerosity,
16 commonality, typicality, adequacy, and pre-litigation notice. ............................ 10
17
1. The proposed class is sufficiently numerous. ......................................... 10
18
2. The proposed class shares common factual and legal questions. ........... 10
19
3. Plaintiffs are typical of the proposed subclasses..................................... 11
20
4. Plaintiffs and Plaintiffs’ counsel will adequately represent the
21 class. ........................................................................................................ 12
22 5. Plaintiffs provided notice of their intent to seek damages. ..................... 14
23 C. A class action is the superior method to resolve this controversy. ..................... 14
24
1. Common issues predominate in this complex environmental tort
25 case, as in many like it. ........................................................................... 14
26 2. ORCP 32 (B)(1): Separate actions .......................................................... 21
27 3. ORCP 32 B(2): Class-wide injunctive or declaratory relief ................... 21

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .
30 SUP P O RT O F M OT I ON FO R C LAS S 1 2 0 1 T hird Av e n ue , S u it e 3 2 0 0
CE RT IFI C AT I O N Sea tt le, W A 9 8 1 0 1
31 i
4. ORCP 32 B(4) & ORCB 32 B(5): Interest in individual control of
1 litigation .................................................................................................. 22
2
5. ORCP 32 B(6): The desirability of this forum........................................ 22
3
6. ORCP 32 B(7) and B(8): Potential difficulties in management, and
4 amount of claim ...................................................................................... 22
5 D. Notice Plan .......................................................................................................... 24

6 E. Trial Plan............................................................................................................. 25
7 IV. CONCLUSION..................................................................................................................... 25
8
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

31 ii
1
TABLE OF AUTHORITIES
2
Page(s)
3
4 Cases
5 Adams v. Cooper Indus., Inc.,

No. 03-CV-476-JBS, 2007 WL 1805586 (ED Ky June 21, 2007) ......................................................16
6
Alsea Veneer, Inc. v. State,
7 117 Or App 42, 843 P2d 492 (1992), aff’d in part, rev’d in part, 318 Or 33, 862 P2d
95 (1993) ........................................................................................................................7, 11, 12, 14, 22
8
9 Amchem Products., Inc. v. Windsor,

521 US 591 (1997) ...............................................................................................................................15
10
Amgen Inc. v. Conn. Ret. Plans and Trust Funds,
11 568 US 455, 133 S Ct 1184 (2013) ......................................................................................................12
12 Bates v. Tenco Servs., Inc.,

132 FRD 160 (DSC), amended, 132 FRD 165 (DSC 1990)................................................................16
13
Bentley v. Honeywell Int’l, Inc.,
14
223 FRD 471 (SD Ohio 2004) .................................................................................9, 10, 13, 19, 20, 24
15
Berdysz v. Boyas Excavating, Inc.,
16 ___ NE3d ___, 2017 WL 632445 (Ohio Ct App Feb 16, 2017) ..........................................................16
17 Bernard v. First Nat’l Bank of Oregon,

275 Or 145, 550 P2d 1203 (1976) .........................................................................................................7
18
Black v. Rhone-Poulenc, Inc.,
19 173 FRD 156 (SDW Va 1996).............................................................................................................11
20
Boggs v. Divested Atomic Corp.,
21 141 FRD 58 (SD Ohio 1991) ...............................................................................................9, 10, 15, 24
22 Cal. v. Kinder Morgan Energy Partners, LP,

613 F App’x 561 (9th Cir 2015) ..........................................................................................................17
23
Collins v. Olin Corp.,
24 248 FRD 95 (D Conn 2008)...............................................................................8, 10, 11, 19, 20, 23, 24
25
Cook v. Rockwell Int’l Corp.,
26 151 FRD 378 (D Colo 1993) ...........................................................................................................9, 24
27

31 iii
Delgado v. Del Monte Fresh Produce, N.A.,
1 260 Or App 480, 317 P3d 419 (2014)..................................................................................................20
2
Facciola v. Greenberg Traurig LLP,
3 281 FRD 363 (D Ariz 2012) ................................................................................................................13
4 Flournoy v. Honeywell Int’l, Inc.,

239 FRD 696 (SD Ga 2006) ..................................................................................................................9
5
Fox v. Cheminova, Inc.,
6 213 FRD 113 (EDNY 2003) ................................................................................................................21
7
Freeman v. Grain Processing Corp.,
8 895 NW2d 105 (Iowa 2017) ..............................................................................9, 12, 15, 18, 19, 20, 25
9 Froeber v. Liberty Mut. Ins. Co.,

222 Or App 266, 193 P3d 999 (2008)....................................................................................................7
10
Gintis v. Bouchard Transp. Co.,
11 596 F3d 64 (1st Cir 2010) ....................................................................................................................15
12 Green v. Salomon Smith Barney, Inc.,
13 228 Or App 379, 209 P3d 333 (2009)....................................................................................................7
14 Hudson v. Peavey Oil Co.,

279 Or 3, 566 P2d 175 (1977) .............................................................................................................17
15
Hurt v. Midrex Div. of Midland Ross Corp.,
16 276 Or 925, 556 P2d 1337 (1976) ...................................................................................................9, 19
17 Iorio v. Allianz Life Ins. Co. of N. Am.,
No. 05-CV-633-JLS (CAB), 2009 WL 3415703 (SD Cal Oct 21, 2009) ............................................20
18
19 Jarvis v. K2 Inc.,
486 F3d 526 (9th Cir 2007) .................................................................................................................17
20
LeClercq v. Lockformer Co.,
21 No. 00-CV-7164, 2001 WL 199840 (ND Ill Feb 28, 2001) ..........................................................15, 20
22 Liborio v. Del Monte Fresh Produce N.A.,
No. 0710-11657, 2008 WL 8257750 (Mult Co Cir Ct, Aug 8, 2008) ...........................................10, 15
23
24 Lowe v. Philip Morris USA, Inc.,

344 Or 403, 183 P3d 181 (2008) .........................................................................................................20
25
Ludwig v. Pilkington N. Am., Inc.,
26 No. 03-CV-1086, 2003 WL 22478842 (ND Ill 2003) .............................................................10, 19, 20
27

31 iv
Lunda v. Matthews,
1 46 Or App 701, 613 P2d 63 (1980)......................................................................................................19
2
Mejdrech v. Met-Coil Sys. Corp.,
3 319 F3d 910 (7th Cir 2003) .......................................................................................................8, 16, 21
4 Muniz v. Rexnord Corp.,

No. 04-CV-2405, 2005 WL 1243428 (ND Ill Feb 10, 2005) ..........................................................9, 13
5
Newman v. Tualatin Dev. Co.,
6 287 Or 47, 597 P2d 800 (1979) .................................................................................................7, 10, 11
7
In re Northern Dist. of California Dalkon Shield IUD Prods. Liab. Litig.,
8 526 F Supp 887 (ND Cal 1981) ...........................................................................................................21
9 O’Connor v. Boeing N. Am., Inc.,

184 FRD 311 (CD Cal 1998) ...............................................................................................................18
10
Olden v. LaFarge Corp.,
11 203 FRD 254 (ED Mich 2001), aff’d, 383 F3d 495 (6th Cir 2004) .......................................................9
12 Pearson v. Philip Morris, Inc.,
13 358 Or 88, 361 P3d 3 (2015) .............................................................................................10, 14, 15, 19
14 Penland v. Redwood Sanitary Sewer Serv. Dist.,

156 Or App 311, 965 P2d 433 (1998)..................................................................................................18
15
Petrovic v. Amoco Oil Co.,
16 200 F3d 1140 (8th Cir 1999) .................................................................................................................9
17 Ponca Tribe of Indians of Oklahoma v. Cont’l Carbon Co.,
No. 05-CV-445-C, 2007 WL 28243 (WD Okla Jan 3, 2007) ..............................................................24
18
19 Rowe v. E.I. DuPont De Nemours & Co.,
262 FRD 451 (DNJ 2009) ....................................................................................................................18
20
Scott v. Elliott,
21 253 Or 168, 451 P2d 474 (1969) .........................................................................................................17
22 Shea v. Chicago Pneumatic Tool Co.,
164 Or App 198, 990 P2d 912 (1999)..................................................................................................14
23
24 Silva v. Bullseye Glass Co.,

No. 3:16-CV-01078 (D Or)..................................................................................................................22
25
Stanley v. U.S. Steel Co.,
26 04-CV-74654, 2006 WL 724569 (ED Mich Mar 17, 2006) ................................................................20
27

31 v
State v. Lang,
1 273 Or App 113, 359 P3d 349 (2015)..................................................................................................19
2
Sterling v. Velsicol Chem. Corp.,
3 855 F2d 1188 (6th Cir 1988) .................................................................................................................8
4 Torres v. Mercer Canyons Inc.,

835 F3d 1125 (9th Cir 2106) ...............................................................................................................15
5
Turner v. Murphy Oil USA, Inc.,
6 234 FRD 597 (ED La 2006).........................................................................................15, 16, 19, 20, 24
7
Wehner v. Syntex Corp.,
8 117 FRD 641 (ND Cal 1987) .....................................................................................................9, 11, 20
9 State ex rel. Young v. Crookham,

290 Or 61, 618 P2d 1268 (1980) .........................................................................................................21
10
Statutes
11
ORS 465.315(1)(b)(A) .................................................................................................................................6
12
Rules
13
14 Federal Rule of Civil Procedure 23 .......................................................................................................7, 22
15 Oregon Rule of Civil Procedure 32 .......................................................................1, 6, 7, 10, 14, 21, 22, 24
16 Other Authorities
17 7AA Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1778 (3d ed
2016) ....................................................................................................................................................15
18
Council on Court Procedures, Staff Comment, 1992, reprinted in Lisa A. Kloppenberg,
19 Oregon Rules of Civil Procedure 1997-98 Handbook, 95 (1997) .......................................................14
20
Restatement (Second) of Torts § 821F (1979) ...........................................................................................18
21
U.S. EPA, Visible Emissions Field Manual: EPA Methods 9 and 22 4 (1993)...........................................3
22
3 William B. Rubenstein Newberg on Class Actions § 8:28 (5th ed 2014) ...............................................23
23
24
25
26
27

31 vi
1 I. INTRODUCTION
2 Plaintiffs Scott and Erin Meeker, Kelly Goodwin, Bruce Ely and Kristi Hauke, Elizabeth Borte
3 and Rino Pasini, Christian Miner, Judy Sanseri, and Howard Banich (collectively, “Plaintiffs”) seek to
4 represent two subclasses—one of residents, one of residential real property owners—to pursue trespass,
5 negligence, and nuisance claims against defendant Bullseye Glass Co. (“Bullseye”). Plaintiffs seek
6 injunctive relief and damages on behalf of themselves and similarly situated residents and property
7 owners in part of inner Southeast Portland defined in this Motion as the “Bullseye Plume” or “Plume.”
8 Using common proof, Plaintiffs plan to show at trial how Bullseye’s decades of unchecked
9 emissions have polluted properties within the Plume, impaired property values, and caused a loss of use
10 and enjoyment of that property. That trial will be expert-intensive and focus on Bullseye’s conduct and
11 its natural consequences, making class wide resolution of Plaintiffs’ and Class members’ claims
12 efficient, manageable, and superior to any other method.
13 Plaintiffs support this Motion with the expert opinions of Dr. Andrew Gray, an environmental
14 engineer and atmospheric scientist; Dr. Mark Chernaik, a toxicologist with a Ph.D. in biochemistry; and
15 Dr. John Kilpatrick, a real property appraiser with extensive experience in the valuation of
16 environmentally impaired property. Dr. Gray explains how unfiltered emissions from Bullseye’s glass-
17 making furnaces elevated ambient air concentrations of particulate matter in the Bullseye Plume, and
18 uses a commonly-accepted dispersion modeling program to map that Plume. Dr. Chernaik describes
19 how Bullseye’s particulate emissions have caused hazardous metals to be deposited on Class members’
20 property and created a lasting public health hazard within the Plume. And Dr. Kilpatrick outlines how
21 Bullseye’s pollution has stigmatized Class members’ neighborhood, impairing residential property
22 values in the Bullseye Plume. Dr. Kilpatrick further explains that relying on scientifically valid
23 techniques—such as a mass appraisal automated valuation model, a contingent valuation survey, and
24 standard market data—he will be able to determine class wide damages relating to the diminution in real
25 property values and residents’ loss of use and enjoyment of their property caused by Bullseye’s conduct.
26 At this stage, however, Plaintiffs do not seek any rulings on the merits; they simply ask this
27 Court to certify the proposed subclasses and Plaintiffs’ claims under ORCP 32, appoint Plaintiffs as

31 1
1 class representatives and Plaintiffs’ counsel as Lead Counsel to represent those subclasses, and order the
2 Parties to confer on a notice and trial plan.
3 II. BACKGROUND
A. The Bullseye Plume area is a predominantly residential neighborhood that became a dumping
4 ground for Bullseye’s emissions.
5 Bullseye Glass Co. operates an industrial glass-manufacturing facility in a residential and
6 commercial area of Southeast Portland. See Def.’s Answer to Second Am. Compl. ¶ 18. In February
7 2016, neighborhood residents along with the broader Portland community first learned that this
8 neighborhood was a “hotspot” of hazardous air pollution stemming from particulate emissions of
9 cadmium, arsenic, and hexavalent chromium, for which the likely source was Bullseye.1
10 Those revelations resulted in national news coverage,2 local protests,3 a series of contentious
11 community meetings,4 a state-wide clean air initiative,5 the formation of advocacy groups like the
12 Eastside Portland Air Coalition,6 and this class action lawsuit. When news about Bullseye’s emissions
13 became public, Bullseye received “hundreds of e-mails and phone calls” from concerned people,
14 continuing into at least June and July 2016. Ex. 17, Deposition of Jim Jones (“Jones Dep.”) 93:10-23.
15 For three weeks, residents within a half-mile of Bullseye were told by the State not to eat produce from
16 their gardens.8 The State later downgraded that advisory based on preliminary soil sampling results, but
17
18
1
See, e.g., Ex. 15, Kirk Johnson, Toxic Moss in Portland, Ore., Shakes City’s Green Ideals, The New York Times (Mar 2,
19 2016); Ex. 16, Daniel Forbes, State Finds Alarmingly High Arsenic, Cadmium Levels Near Two SE Portland Schools The
Portland Mercury (Feb 3, 2016, 2:06 pm) (quoting the DEQ’s Sarah Armitage as saying, “I can say, yes, we’re confident
20 it’s Bullseye.”); Ex. 17, Bullseye source test results, DEQ’s actions to identify and control the unknown hexavalent
chromium source: Question and answers, Department of Environmental Quality; Geoffrey H. Donovan, Sarah E. Jovan,
21 Demetrios Gatziolis, Igor Burstyn, Yvonne L. Michael, and Vincente J. Monleon, Using an epiphytic moss to identify
previously unknown sources of atmospheric cadmium pollution, 559 Science of the Total Environment, 84, 89 (2016) (“The
22 evidence that glass-manufacturer #1 [Bullseye] is the source of the observed cadmium hotspot is compelling.”).
2
E.g., Johnson, supra note 1.
23 3
Ex. 18, Group protests SE Portland glass company over toxics, KGW.com (Feb 16, 2016, 11:54 pm).
4
E.g., Ex. 19, Andrew Dymburt, SE Portland ‘shows solidarity’ at air quality meeting, KOIN 6 (Feb 17, 2016, 5:34 pm).
24 5
Ex. 20, Angela Ruffoni, Gov. Brown Launches Cleaner Air Oregon, KXL News (Apr 6, 2016, 5:45 pm).
6
See generally Ex. 21, About, Eastside Portland Air Coalition.
25 7
All exhibit (“Ex.”) references refer to exhibits to the Declaration of Matthew Preusch in Support of Motion for Class
26 Certification, filed herewith.
8
Ex. 22, Lynne Terry, Don’t eat backyard vegetables near Portland glass factories, officials warn, The Oregonian (Feb 20,
27 2016). See also Ex. 24 (warning sign on community garden).

31 2
1 cautioned that gardeners should wash their hands after working in the soil and wash all produce before
2 consuming it.9 The state’s public health assessment of Bullseye’s impact on the community is ongoing.10
3 After Bullseye suspended the use of certain metals and installed its first pollution control
4 baghouse in March 2016, average concentrations of toxic metals in the neighborhood “dropped 98
5 percent from 2015 levels[.]”11 Despite the installation of a baghouse, however, Bullseye “continue[s] to
6 get complaints about opacity”12 from people in the neighborhood. Ex. 1, Jones Dep. 18:2-3, 8-17. Even
7 after Bullseye belatedly came under the close scrutiny of regulators, it continued to violate air quality
8 opacity standards, Ex. 4, and received a State-issued cease and desist order for lead emissions. Ex. 5.
9 B. Bullseye has been melting toxic metals in its furnaces since the 1970s without emissions controls.
10 Plaintiffs and the public now know what Bullseye has long known: The company has been
11 melting hazardous air pollutants in uncontrolled furnaces for over four decades. See, e.g., Mem. in Supp.
12 of Mot. for Leave to Amend Pleading to Assert Claim for Punitive Damages 6-8. Shockingly, Bullseye
13 never tested the emissions from its furnaces or sought to measure the impact of those emissions on its
14 neighbors. Ex. 2, Deposition of Dan Schwoerer (“Schwoerer Dep.”) 111:14-25. When Bullseye’s
15 maintenance supervisor asked to test those emissions to quantify them in the 2000s, Bullseye Controller
16 Eric Durrin said testing should not be done, so that Bullseye could have “plausible deniability.” Ex. 28,
17 Deposition of Daren Marshall (“Marshall Dep.”) 131:11-132:11. Bullseye “didn’t want to know the
18 answer to that” and it was “financially expensive to have that done.” Id.; see also id. 121:20-123:3 (Q:
19 Did Mr. Durrin tell you that Bullseye wanted to have plausible deniability? A: Yes.”)
20 While Bullseye disputes whether it knew the emissions from its furnaces contained hazardous
21 metals, no credible source disputes that those emissions did, in fact, contain substantial amounts of toxic
22
9
23 Ex. 23, Press Release, Oregon Health Authority, New soil, cancer, urine test data show low risk for Portland residents (Mar
9, 2016).
10
24 Ex. 25, Environmental Health Assessment: Bullseye Glass Co., Oregon Health Authority.
11
Ex. 26, Press Release, Department of Environmental Quality, Cleaner Air Oregon, Ongoing monitoring at Bullseye Glass
25 shows sustained emissions reductions (Mar 21, 2017). Bullseye installed a larger baghouse system and resumed the use of
heavy metals in its now-filtered furnaces on August 29, 2016. Ex. 27, Fedor Zarkhin, The Oregonian, Bullseye Glass back
26 in business with new device to control toxic emissions (Sep 8, 2016).
12
Plume opacity is “the degree to which the transmission of light is reduced or the degree to which the visibility of a
27 background as viewed through the diameter of a plume is reduced.” U.S. EPA, Visible Emissions Field Manual: EPA
Methods 9 and 22 4 (1993).
31 3
1 metals, including arsenic, cadmium, lead, selenium, and hexavalent chromium. Material cleaned from
2 Bullseye’s stacks contain those metals. See Declaration of Daniel Mensher in Supp. of Reply in Supp. of
3 Mot. for Leave to Amend Pleading to Assert Claim for Punitive Damages and Opp’n to Mot. for
4 Continuance, Ex. A (confirming same). And Bullseye owner Mr. Schwoerer admits his understanding
5 that metals can “volatilize” off the surface of melting glass in Bullseye’s furnaces. Ex. 2, Schwoerer
6 Dep. 79:19-24; 82:24-83:25. Based on what Bullseye Vice President Jones now knows, he concedes he
7 would be concerned about the use of chromium in uncontrolled furnaces if he lived within a half mile of
8 Bullseye. Ex. 1, Jones Dep. 79:24-80:10.
9 C. Plaintiffs’ experts can show that Bullseye’s emissions have polluted a significant portion of
Southeast Portland.
10
Plaintiffs’ expert Dr. Gray has defined the extent and boundaries of Bullseye’s air pollution. Dr.
11
Gray is an environmental engineer and atmospheric scientist with 39 years of experience in air
12
modeling. He performed a historical air dispersion analysis of particulate matter (PM10) from Bullseye’s
13
furnaces from 2010 through the end of 2015. See generally Ex. 6, Report of Dr. Andrew Gray (“Gray
14
Rpt.”).13 Dr. Gray’s conclusions reinforce previously disclosed information—including the U.S. Forest
15
Service’s peer-reviewed “moss study” and the DEQ air monitoring results discussed herein—that
16
emissions from Bullseye’s furnaces “substantially contribute[d] to elevated levels of PM [particulate
17
matter] in the ambient air over a large area surrounding the facility.” Ex. 6 at 1.
18
Dr. Gray’s analysis draws from Bullseye internal records, publicly available information, and an
19
EPA-preferred American Meteorological Society/Environmental Protection Agency Regulatory Model
20
(“AERMOD”) system, to quantify the average increase in PM10 in the Bullseye Plume attributable to
21
Bullseye from 2010 to the end of 2015, shortly before Bullseye suspended the use or arsenic and
22
cadmium and later installed a baghouse system. Id. at 3-6. Dr. Gray’s modeling results show that, for the
23
2010-2015 period, Bullseye’s emissions increased the long-term average amount of PM10 in a more than
24
25
26
13
27 Plaintiffs have filed a redacted version of Dr. Gray’s report pending this Court’s resolution of a motion to file under seal
confidential material in that report, which motion Bullseye intends to file.
31 4
1 3-square kilometer area within the Plume by .2 micrograms per meter cubed. Id. at 1. That area is
2 represented in Figure 1 of Dr. Gray’s report, and Figure 1 of Dr. Kilpatrick’s report:
10
11
12
13
14
15
16
17
18
19
20
21
22
Building on Dr. Gray’s work, and drawing further from Bullseye records, testing of Bullseye
23
stack materials, and public health studies, toxicologist Dr. Chernaik concludes that particulate emissions
24
from Bullseye have caused a “highly significant” increase in the risk of mortality for those living in the
25
26 Bullseye Plume from 2010 to 2015. Ex. 7, Report of Dr. Mark Chernaik (“Chernaik Rpt.”) at 5. The
27 metals in those emissions—cadmium, arsenic, and hexavalent chromium—have created an

31 5
“unacceptable” cumulative cancer risk of 67 per million people. Id. at 6-7. Under Oregon law, the
1
2 acceptable level of risk for exposure to carcinogens for DEQ hazardous substances cleanups is a
3 “lifetime excess cancer risk of one per one million people exposed.” ORS 465.315(1)(b)(A) (emphasis
4 added). Dr. Chernaik concludes that the cadmium from those emissions deposited on the Bullseye
5
Plume’s residential properties was “highly significant from a public health perspective and, because of
6
the persistent nature of toxic metals in house dust, remains today a public health issue.” Ex. 7,
7
Chernaik Rpt. at 9.
8
D. Bullseye’s emissions have stigmatized the neighborhood around Bullseye as less desirable,
9
suppressing home values.
10 Plaintiffs allege the unchecked emissions from Bullseye, and the ongoing public health legacy
11 they have produced, have created a stigma that reduces the desirability of real property in the Plume and
12 that diminishes real property values. Dr. Kilpatrick, the Managing Director of Greenfield Advisors,
13 explains how that diminished value for residential real estate properties can be measured on a class-wide
14 basis using common proof, including widely accepted mass appraisal methodologies. See generally Ex.
15 8, Report of Dr. John Kilpatrick (“Kilpatrick Rpt.”) ¶¶ 16-84.
16 Dr. Kilpatrick’s firm has conducted a preliminary contingent value survey, a method used in
17 peer-reviewed research to value property resources, to determine by how much the Bullseye pollution
18 stigma has impaired home values in the Plume. Ex. 8, Kilpatrick Rpt. ¶¶ 66-71. That “study indicated a
19 25 to 33 percent diminution in property values as a result of the contamination similar to Bullseye.” Id. ¶
20 71. “These results are consistent with my prior experience, case studies, and peer-reviewed literature
21 that demonstrate the existence of stigma surrounding contaminated properties[.]” Id.
22 III. LEGAL STANDARDS
23 Oregon Rule of Civil Procedure 32 directs courts to, “after the commencement of an action
24 brought as a class action, * * * determine by order whether and with respect to what claims or issues it is
25 to be so maintained and * * * find the facts specially and state separately its conclusions thereon.”
26 ORCP 32 C(1). An action may be brought as a class action if the size of the class makes joinder
27 impracticable, the class shares common questions of law or fact, the representative’s claims are typical,
31 6
1 the representatives will fairly and adequately represent the class, and a class action “is superior to other
2 available methods for the fair and efficient adjudication of the controversy.” ORCP 32 A-B. In addition,
3 in damages actions, representative parties must have provided pre-litigation notice. See ORCP 32 A(5).
4 “The question of certification is a legal one that involves issues of both law and fact.” Alsea
5 Veneer, Inc. v. State, 117 Or App 42, 52, 843 P2d 492, 497 (1992), aff’d in part, rev’d in part, 318 Or
6 33, 862 P2d 95 (1993). Whether to proceed as a class action is largely a decision of judicial
7 administration; trial courts are “customarily granted wide latitude.” Newman v. Tualatin Dev. Co., 287
8 Or 47, 51, 597 P2d 800, 802 (1979). Oregon courts have broad authority to make rulings “tailored to the
9 practical needs of individual cases and to a variety of circumstances.” Green v. Salomon Smith Barney,
10 Inc., 228 Or App 379, 386, 209 P3d 333, 336 (2009).
11 When considering whether to certify a class, Oregon courts may consider federal courts’
12 interpretation of analogous provisions of Federal Rule of Civil Procedure 23 as persuasive authority in
13 the absence of controlling caselaw. See Froeber v. Liberty Mut. Ins. Co., 222 Or App 266, 277 n9, 193
14 P3d 999, 1006 (2008) (because ORCP 32 is “modeled after the federal rules[,]” “decisions by federal
15 courts on class action settlements are persuasive”).
16 IV. CLASS DEFINITION
17 In Oregon, a class must be defined in a way to permit notice “and to facilitate the court’s
18 determination on the manageability of the action.” Bernard v. First Nat’l Bank of Oregon, 275 Or 145,
19 156, 550 P2d 1203, 1211 (1976). Plaintiffs propose two overlapping subclasses defined by reference to
20 (1) the boundary identified by Dr. Gray’s modeling results that show significantly elevated levels of
21 particulate matter contributed by Bullseye—the “Bullseye Plume”; (2) the date the public became aware
22 of the pollution contamination emanating from Bullseye; and (3) the nature of the subclass members’
23 allegedly infringed real property rights as either owners or residents. Such precisely-defined,
24 geographic-based subclasses will facilitate the straightforward management of this action. See ORCP 32
25 G (permitting subclasses).
26 Plaintiffs’ proposed subclasses, the “Resident Subclass” and the “Owner Subclass”, are defined
27 as follows:

31 7
All residents of the residential properties within the Bullseye Plume
1 depicted in Figure 1 of the report of Dr. Andrew Gray as of February
2 3, 2016, which properties are preliminarily listed in Appendix A hereto.
3 All owners of the residential real properties within the Bullseye Plume
depicted in Figure 1 of the report of Dr. Andrew Gray as of February 3,
4 2016, which properties are preliminarily listed in Appendix A hereto.
5 Appendix A is a list of 2,185 addresses of residential real property addresses preliminarily
6 identified as fully within or intersected by the boundary of the Plume.14 See Ex. 8, Kilpatrick Rpt. ¶ 14.
7 Collectively, the members of the subclasses are “Class Members.”
8 Excluded from the subclasses are Defendant and any of its subsidiaries, affiliates, owners,
9 offices, or employees; all persons who make a timely election to be excluded from the class;
10 governmental entities; and the judge to whom this case is assigned and that judge’s immediate family.
11 V. ARGUMENT
12 This case should proceed on behalf of the proposed subclasses, and be led by the proposed class
13 representatives who are typical, adequate, and whose claims share common and factual legal questions
14 with their neighbors within the Bullseye Plume. Proceeding as a representative action is the superior
15 method to resolving those claims, and has been approved in many analogous cases.
16 A. The proposed subclasses are of the nature routinely certified by courts in analogous cases.
17 Class action proceedings are well suited to resolve complex, expert-intensive tort claims arising
18 from pollution of multiple properties. Because those cases involve common legal and factual issues
19 focused on the defendant’s behavior, “the accuracy of the resolution of which is unlikely to be enhanced
20 by repeated proceedings,” “it makes good sense * * * to resolve those issues in one fell swoop.”
21 Mejdrech v. Met-Coil Sys. Corp., 319 F3d 910, 911 (7th Cir 2003).
22 Accordingly, “[m]any courts have certified classes in situations involving chemical seepage onto
23 adjoining property.” Collins v. Olin Corp., 248 FRD 95, 103 (D Conn 2008). See also, e.g., Sterling v.
24 Velsicol Chem. Corp., 855 F2d 1188, 1197 (6th Cir 1988) (water contamination of nearby residential
25 properties due to chemicals from landfill); Petrovic v. Amoco Oil Co., 200 F3d 1140, 1144 (8th Cir
26
14
27 Plaintiffs have filed a redacted version of Appendix A pending this Court’s resolution of Plaintiffs’ motion to seal, filed
concurrently with this Motion.
31 8
1 1999) (property pollution as a result of an underground oil seepage); Flournoy v. Honeywell Int’l, Inc.,
2 239 FRD 696 (SD Ga 2006) (nuisance and trespass from mercury and PCB contamination); Bentley v.
3 Honeywell Int’l, Inc., 223 FRD 471 (SD Ohio 2004) (contamination of residents’ groundwater); Olden v.
4 LaFarge Corp., 203 FRD 254, 271 (ED Mich 2001), aff’d, 383 F3d 495, 508-10 (6th Cir 2004)
5 (property damage caused by toxic pollutants arising from cement manufacturing plant); Cook v.
6 Rockwell Int’l Corp., 151 FRD 378, 388 (D Colo 1993) (damage from leaked radioactive and non-
7 radioactive substances); Boggs v. Divested Atomic Corp., 141 FRD 58, 67 (SD Ohio 1991) (property
8 damage in area surrounding uranium plant); Wehner v. Syntex Corp., 117 FRD 641, 643 (ND Cal 1987)
9 (damage resulting from a chemical manufacturer); Muniz v. Rexnord Corp., No. 04-CV-2405, 2005 WL
10 1243428, at *1 (ND Ill Feb 10, 2005) (collecting cases supporting proposition that “class action is
11 superior form of adjudication of case involving contamination of property by a hazardous chemical”).
12 Most recently, in similar circumstances to those presented here, the Iowa Supreme Court
13 affirmed class certification in a nuisance, negligence, and trespass case brought by residents living near
14 a grain processing facility. Freeman v. Grain Processing Corp., 895 NW2d 105 (Iowa 2017). Reviewing
15 the plaintiffs’ claims and the evidence they would require—such as “whether emissions interfered with
16 the residents’ exclusive land possession”—the court concluded that a class action would be the most
17 efficient and perhaps only way to resolve the issues involved: “the complexity of these questions may
18 hinder the ability of some class members to get relief due to the expense of expert testimony.” Id. at 123.
19 Oregon case law, while limited on this issue, is in accord with that line of cases. In Hurt v.
20 Midrex Div. of Midland Ross Corp., 276 Or 925, 556 P2d 1337 (1976) the plaintiffs brought a class
21 action tort case against their employer for damaging their cars with air pollution emitted from the
22 employer’s iron ore reduction plant. Id. at 927. In reversing the trial court’s denial of certification, the
23 Oregon Supreme Court concluded that “[w]e view this to be a case typical of the kind contemplated by
24 the [Oregon] legislature as being proper for a class action.” Id. at 930 (emphasis added).
25 Like the cases cited here, this case is paradigmatic for class certification as an environmental
26 injury to real property.

27

31 9
B. Plaintiffs have satisfied ORCP 32 A’s requirements of numerosity, commonality, typicality,
1 adequacy, and pre-litigation notice.
2
1. The proposed class is sufficiently numerous.
3 The numerosity threshold is typically satisfied at 50 or more members. See Liborio v. Del Monte
4 Fresh Produce N.A., No. 0710-11657, 2008 WL 8257750, at *2 (Mult Co Cir Ct, Aug 8, 2008)
5 (Bushong, J.) (numerosity met where class included more than 50); Newman, 287 Or at 50 (class of at
6 least 125 townhouse owners was sufficiently numerous). Numerosity is met here. The subclasses consist
7 of the owners or residents of 2,185 residential properties. Ex. 8, Kilpatrick Rpt. ¶ 14.
8
2. The proposed class shares common factual and legal questions.
9
“Commonality asks only if there are questions of law or fact common to the class. It does not
10
test how central the common questions are to the resolution of the action. Nor does it take into account
11
the nature of the proof required to litigate those common issues.” Pearson v. Philip Morris, Inc., 358 Or
12
88, 110, 361 P3d 3, 18-19 (2015) (citing ORCP 32 A) (emphasis in original). Environmental
13
contamination cases generally—and this case in particular—present a host of common issues. Some of
14
those issues are described below.
15
Liability: Common liability question include (a) whether Bullseye was negligent in the
16
maintenance and operation of its facility, (b) whether Bullseye owed any duties to Class Members and
17
breached those duties, and (c) whether Bullseye’s conduct created a trespass and/or constituted a
18
nuisance. See Collins, 248 FRD at 104 (polluter’s “entire course of conduct and knowledge of its
19
potential hazards is a common issue to the class”); Bentley, 223 FRD at 481 (“[W]hen defendants’
20
conduct towards the proposed class is alleged to be uniform, the commonality requirement is met.”);
21
Boggs, 141 FRD at 64 (court had “no difficulty in concluding that the commonality requirement has
22
been satisfied” in pollution case).
23
Extent of Contamination: The pattern of dispersion of particulate emissions from Bullseye is
24
based on Bullseye’s operations and official meteorological data, both of which are common to all Class
25
Members. Boggs, 141 FRD at 64 (common question was “how extensive were the emissions”); Ludwig
26
v. Pilkington N. Am., Inc., No. 03-CV-1086, 2003 WL 22478842, at *5 (ND Ill 2003) (defendant’s
27
“single course of conduct, disposal of arsenic containing waste, * * * created a common nucleus of facts
31 10
1 for the class”). Similarly, the nature and toxicity of Bullseye’s emissions are common to the proposed
2 class. See Wehner, 117 FRD at 644 (“nature of the dioxin” a common question in class case).
3 Causation and Measure of Damages: Common questions also relate to causation and damages,
4 including whether Bullseye caused interference with Class Members’ rights of exclusive possession and
5 enjoyment of their real property, and the proper method to measure and amount of damages resulting
6 from that interference. Even if there are some causation or damages that are individual, “individual
7 issues of causation do not preclude class certification.” Collins, 248 FRD at 104.15
8 This litigation presents a litany of common questions that can and should be answered using
9 common proof.
10 3. Plaintiffs are typical of the proposed subclasses.

11 Class representatives are typical if their claim “arises from the same event or practice or course
12 of conduct that gives rise to the claims [of members of the class] and his or her claims are based on the
13 same legal theory.” Newman, 287 Or at 50. “The fact that damages may differ among individual
14 plaintiffs or that some plaintiffs may have suffered no damages does not render the claims atypical.”
15 Alsea Veneer, Inc., 117 Or App at 53.
16 Here, the named Plaintiffs’ claims are based on the same facts—Bullseye’s negligent operations
17 and resulting emissions—and the same legal theories as those of absent class members. Each Plaintiff
18 owns and resided in residential property in the Bullseye Plume as of the relevant date. See Ex. 9 (map
19 indicating approximate location of Plaintiffs’ properties). As the deposition testimony confirms,
20 Plaintiffs are simply “one of the people that are affected[,] just like” their neighbors who also reside in
21 the Bullseye Plume, “not much different than any other southeast Portlander.” See Ex. 3, Sanseri Dep.
22 223:21-24; S. Meeker Dep. 148:17-18.
23 Another factor common to the named Plaintiffs and the members of the proposed class is how
24 they have changed their use and enjoyment of their properties because of Bullseye’s emissions,
25 reflecting how a normal person would react to objectively offensive emissions. See Ex. 3, Sanseri Dep.
26
15
27 Whether Bullseye’s conduct warrants punitive damages is also a common question. Black v. Rhone-Poulenc, Inc., 173
FRD 156, 161 (SDW Va 1996).
31 11
1 42:17-25, 44:21-25 (stopped gardening); Banich Dep. 25:24-26:8 (stopped gardening, stopped using
2 yard socially, “shut up our house”); Borte Dep. 97:6-9, 118:1-2, 121:12-15 (children allowed to pay in
3 yard only “very rarely”, stopped eating fruit from yard, did less yard work); Ely Dep. 13:19-24, 15:10-
4 13, 35:1-36:18, 37:5-9 (stopped eating vegetables, hosting guests less often, take off shoes when
5 entering home, take precautions in yard); Hauke Dep. 22:1-7, 22:25-23:15, 54:20-55:4, 55:8-16, 32:15-
6 33:9, 88:9-16 (no vegetable garden, additional precautions in garden, decreased entertaining outside); E.
7 Meeker Dep. 31:14-32:9, 35:20-22, 120:18-25, 149:21-150:1 (limited vegetable garden to a few
8 containers with newly purchased dirt, does not take daughter to local park); S. Meeker Dep. 81:20-82:9,
9 85:9-21, 136:19-137:1 (daughter not using back yard as before, stopped going to nearby park, limited
10 garden); Goodwin Dep. 40:24-41:25, 58:17-24, 95:4-17 (stopped eating produce from yard, spends less
11 time outside, no longer opens windows); Pasini Dep. 59:15-20, 65:4-66:1, 103:20-23 (stopped or
12 reduced eating herbs and fruit from yard, dramatically reduced kids’ time in yard); Miner Dep. 89:24-
13 90:21 (did not put in planned garden, not entertaining).
14 The Plaintiffs’ experiences reflect the experiences of others in their neighborhood, as
15 documented in news reports, comments made to Bullseye, and comments on public discussion groups.
16 See, e.g., Ex. 10, Lynne Terry, Portland’s toxic air: Will young family have to leave home? The
17 Oregonian (Feb 26, 2016) (describing family that stopped eating greens from its garden). Because
18 nuisance is judged by an objective standard, slight variations in Plaintiffs’ responses and the responses
19 of subclass members to Bullseye’s emissions are immaterial except that they help show how a normal
20 person would respond to the circumstances presented. See Freeman 895 NW2d at 121 (“Objective
21 standards more readily present common questions than subjective standards.”) (citing Amgen Inc. v.
22 Conn. Ret. Plans and Trust Funds, 568 US 455, 459, 133 S Ct 1184, 1191 (2013)).
23 4. Plaintiffs and Plaintiffs’ counsel will adequately represent the class.

24 The test for adequacy is whether “(1) there are no disabling conflicts of interest between the class
25 representatives and the class; and (2) the class is represented by counsel competent to handle such
26 matters.” Alsea Veneer, Inc., 117 Or App at 53.
27

31 12
1 As deposition testimony confirms, the named Plaintiffs have invested substantial time
2 prosecuting this case on behalf of the proposed subclasses and are prepared to serve as class
3 representatives. The named representatives have conducted research, attended meetings, met with
4 counsel, missed work to observe court hearings, sat for depositions, and otherwise invested substantial
5 time and resources into working with counsel to prosecute these claims on behalf of the subclasses. See,
6 e.g., Ex. 3, Sanseri Dep. 108:7-109:20; Hauke Dep. 48:19-49:1; Pasini Dep. 70:12-15 (research); Sanseri
7 Dep. 119:1-10; Banich Dep. 21:7-11; Hauke Dep. 62:12-17; E. Meeker Dep. 9:25-10:7; S. Meeker Dep.
8 59:16-60:14; Goodwin Dep. 91:14-92:12; Pasini Dep. 93:1-11; Miner Dep. 34:9-19 (meetings) ; Borte
9 Dep. 145:4-10; Ely Dep. 43:21-25, 45:17-19; Goodwin Dep. 117:15-17; Pasini Dep. 110:23-111:5;
10 Miner 87:16-18 (invested time and resources). See also Sanseri Dep. 222:15-20; Banich Dep. 52:18-24;
11 Borte Dep. 144:9 – 145:3; Ely Dep. 45:4-16; Hauke Dep. 89:21-90:18; E. Meeker Dep. 9:4-11; S.
12 Meeker Dep. 147:19-148:10; Goodwin Dep. 115:21-117:14; Pasini Dep. 98:16-24, 110:16-22; Miner
13 Dep. 87:11-15 (understand obligations of a class representative).
14 The named Plaintiffs have no “disabling conflicts of interest” with their fellow Class Members.
15 They share the same goal: obtaining appropriate injunctive relief and available damages under tort
16 claims, including diminution in value, loss of use, expenses for testing persons and property, and a
17 medical monitoring fund. Second Am. Class Action Compl. ¶ 79. Some Class Members may wish to
18 pursue personal injury claims—which are not part of the relief Plaintiffs have sought in this case—but
19 those Class Members may still do so individually and, if necessary, opt out to do so. See Bentley, 223
20 FRD at 483 (in pollution case claiming injunctive relief and property damages, “res judicata would not
21 apply to bar and/or prejudice any personal injury claims that the class members may have”); Muniz,
22 2005 WL 1243428, at *4 (“[A] class action suit seeking damages for property damage would not bar
23 and/or prejudice any personal injury claims that the class members may have.”); Facciola v. Greenberg
24 Traurig LLP, 281 FRD 363, 370 (D Ariz 2012) (“In some instances, opting not to assert certain claims
25 may be an essential part of adequate representation.”).
26 Plaintiffs’ counsel is adequate to represent the subclasses. Keller Rohrback L.L.P. is a nationally-
27 recognized class action firm with significant environmental experience and sufficient resources to

31 13
1 prosecute this action on behalf of the subclasses as class counsel, and Karl G. Anuta is an experienced
2 Oregon trial attorney specializing in environmental and toxic tort law. See generally Ex. 11 (Keller
3 Rohrback L.L.P. environmental resume), Ex. 12 (Anuta resume); see also Def.’s Answer to Second Am.
4 Compl. ¶ 66 (“Bullseye admits that Plaintiffs’ counsel are competent.”).
5 5. Plaintiffs provided notice of their intent to seek damages.

6 ORCP 32 A(5) requires that, “[i]n an action for damages, the representative parties” must
7 comply with the rule’s pre-litigation notice provisions. Plaintiffs provided that notice. See Ex. 13.
8 C. A class action is the superior method to resolve this controversy.
9 In addition to the prerequisites of ORCP 32 A, to certify a class the court must find “that a class
10 action is superior to other available methods for the fair and efficient adjudication of the controversy.”
11 ORCP 32 B. As Oregon courts have explained, single adjudications of common questions are typically
12 “preferable to piecemeal litigation and potentially inconsistent awards” that can arise from multiple
13 individual cases. Alsea Veneer, Inc., 117 Or App at 55.
14 Rule 32 lists eight factors that are “pertinent” to assessing superiority. ORCP 32 B. “Neither the
15 ‘predominance’ factor nor any of the other seven [factors] * * * is controlling.” Pearson, supra., 358 Or
16 at 106. The 1992 amendments to ORCP 32 “abandoned as unduly rigid” the prior rule’s requirement that
17 class issues predominate. Council on Court Procedures, Staff Comment, 1992, reprinted in Lisa A.
18 Kloppenberg, Oregon Rules of Civil Procedure 1997-98 Handbook, 95 (1997). Today, ORCP 32 does
19 not require “predominance as a sine qua non of certification of any class.” Shea v. Chicago Pneumatic
20 Tool Co., 164 Or App 198, 207, 990 P2d 912, 917 (1999). Rather, a trial court reviews all the factors to
21 determine if, overall, the class mechanism is superior.
22 Reviewing those factors in the context of this case shows that a class action is a superior
23 method—the only practical method, in fact—for resolving Class Members’ claims against Bullseye.
24 1. Common issues predominate in this complex environmental tort case, as in many like it.
25 Plaintiffs begin with the often-disputed predominance factor, which focuses on the relationship
26 between common and individual issues. Under the predominance inquiry, courts ask “how central are
27 the common questions, and will common proof resolve them?” Pearson, 358 Or at 110. To do so, a trial
31 14
1 court must assess whether it is likely the action will “require separate adjudications to resolve factual or
2 legal questions regarding the individual class members and, if so, how many individual adjudications
3 would be required.” Id. “When common questions present a significant aspect of the case and they can
4 be resolved for all members of the class in a single adjudication, there is clear justification for handling
5 the dispute on a representative rather than on an individual basis.” 7AA Charles A. Wright & Arthur R.
6 Miller, Federal Practice & Procedure § 1778 (3d ed 2016).
7 Even if there are some issues that require individualized attention, as the Ninth Circuit has
8 explained, “more important questions apt to drive the resolution of the litigation are given more weight
9 in the predominance analysis over individualized questions which are of considerably less significance
10 to the claims of the class.” Torres v. Mercer Canyons Inc., 835 F3d 1125, 1134 (9th Cir 2106); see also
11 Liborio, 2008 WL 8257750 (even where common questions may not predominate, “[i]t makes little
12 sense to have those common questions decided in a piecemeal fashion in individual lawsuits.”).
13 In the words of the Supreme Court “mass tort cases arising from a common cause or disaster
14 may, depending on the circumstances, satisfy the predominance requirement.” Amchem Products., Inc.
15 v. Windsor, 521 US 591, 625 (1997). There is no “general rule,” as Justice Souter explained while
16 writing for the First Circuit, that pollution and environmental contamination actions “escape class
17 treatment on the ground that the requirements to show injury, cause, and compensatory amount must be
18 sustainable as to specific plaintiffs.” Gintis v. Bouchard Transp. Co., 596 F3d 64, 66 (1st Cir 2010)
19 (reversing denial of class certification in action arising from a discharge of oil into bay).
20 Here, as in many environmental cases, “[c]ommon issues of liability, causation, and remedies not
21 only predominate but overwhelm individualized issues.” Boggs, 141 FRD at 67; see also Turner v.
22 Murphy Oil USA, Inc., 234 FRD 597, 606 (ED La 2006) (“[T]he central factual basis for all of Plaintiffs’
23 claims is the leak itself—how it occurred, and where the oil went.”); Freeman, 895 NW2d at 129
24 (common proof of polluter’s “course of conduct, its emissions during the relevant time period, its
25 knowledge of emissions, and at what level emissions interfere with a normal person in the community’s
26 enjoyment of his or her property” “are at the heart of the residents’ claims”); LeClercq v. Lockformer
27 Co., No. 00-CV-7164, 2001 WL 199840, at *7 (ND Ill Feb 28, 2001) (proof “would be identical” for

31 15
1 “history of operations, the spillage, the impact on the land, soil, and water, [and] possible remedies” and
2 “[r]epetitive discovery for individual cases on the same core issues would be wasteful”).
3 a. Proof common to all Class Members will resolve this case’s central questions.
4
Plaintiffs will provide common proof to resolve the common questions—including Bullseye’s
5
conduct, the spread of emissions, and the effects of those emissions—that will drive resolution of this
6
matter.
7
Bullseye’s Conduct: Proof of Bullseye’s management of its facility, including its decision to not
8
install pollution control equipment, is the same for each Class Member, and will be central to Plaintiffs’
9
negligence claim. Cf., e.g., Mejdrech, 319 F3d at 911-12; Turner, 234 FRD at 604.
10
Air Dispersion Modeling: The dispersal of contaminants—a critical issue for nuisance and
11
trespass claims—will be common to all claimants within the Bullseye Plume. With Dr. Gray’s air
12
dispersion analysis, Plaintiffs have provided a reliable common method to resolve that issue. AERMOD
13
is an air dispersal modeling system widely accepted as a method of calculating the airborne dispersion of
14
pollutants. Ex. 6, Gray Rpt. at 5-6. It is the EPA-preferred model for modeling air releases from a large
15
array of industrial sources. Id. The accuracy of AERMOD is accepted even when assessing dispersion
16
over diverse terrain, circumstances not present here. See Adams v. Cooper Indus., Inc., No. 03-CV-476-
17
JBS, 2007 WL 1805586, at *10 (ED Ky June 21, 2007) (finding in context of Daubert challenge that
18
“AERMOD is a reliable methodology”).
19
Property Valuation and Loss of Use: Common proof will model the impairment in value and loss
20
of use and enjoyment of Class Members’ property attributable to Bullseye’s pollution. Cf. Berdysz v.
21
Boyas Excavating, Inc., ___ NE3d ___, 2017 WL 632445, at *6 (Ohio Ct App Feb 16, 2017) (affirming
22
trial court’s finding that common issues predominated in air pollution nuisance case seeking diminution
23
in value and loss of use damages). Courts have regularly used common proof to determine the impact
24
pollution has had on class members’ home values using well-established models. E.g., Bates v. Tenco
25
Servs., Inc., 132 FRD 160, 163-64 (DSC), amended, 132 FRD 165 (DSC 1990) (certifying class for
26
damages, including diminution in value, for residents of subdivision adjacent to a jet fuel storage
27

31 16
1 facility). Similarly, for loss of use damages, there is no need for class members to testify as to how they
2 actually use their property and how that use has been affected by Bullseye’s actions because the
3 unimpaired “right to use” real property has value, regardless of how the property is actually used. Jarvis
4 v. K2 Inc., 486 F3d 526, 533 (9th Cir 2007). And the lost value of this right can be calculated across the
5 class, again using well-established economic models and other common evidence. See, e.g., id. at 534
6 (property owners’ states of mind are irrelevant because loss of use damages are based on the objective
7 fair market value); Cal. v. Kinder Morgan Energy Partners, LP, 613 F App’x 561, 564 (9th Cir 2015)
8 (finding damages to the class “can be proved through estimates of a property’s rental value based on
9 hypothetical assumptions rather than its actual use.”).
10 Here, Plaintiffs’ expert on diminished property value explains how real property damages can be
11 measured on a class-wide basis. Dr. Kilpatrick explains the extensive research connecting contamination
12 to an impact on property values, Ex. 8, Kilpatrick Rpt. ¶¶ 39-63, a common factor in the Bullseye
13 Plume. Dr. Kilpatrick’s contingent valuation survey shows that real property in the Plume has a
14 “stigma” that depresses home values. Id. ¶ 71. See also Hudson v. Peavey Oil Co., 279 Or 3, 10, 566
15 P2d 175, 179 (1977) (discussing damages available in trespass case where contamination meant “the
16 property’s value to a prospective purchaser would be significantly affected”); Ex. 3, Sanseri Dep. 52:6-9
17 (discussing impaired value). Dr. Kilpatrick explains the precise impairment value of properties in the
18 Bullseye Plume are amenable to statistical modeling using data for Multnomah County. See generally
19 Ex. 8, Kilpatrick Rpt. ¶¶ 72-78. Likewise, to calculate loss of use damages, Dr. Kilpatrick can use fair
20 market rental values to determine damages for things like “inability to garden or entertain at one’s
21 home.” Id. ¶¶ 64-65. See also Scott v. Elliott, 253 Or 168, 182, 451 P2d 474, 480 (1969) (measure of
22 damages for temporary loss of use “is the fair rental value of the property”).
23 Real property damages related to diminished value and loss of use are thus subject to common
24 proof.
25
26
27

31 17
b. Plaintiffs’ claims are susceptible to common proof.
1
2 In addition to resolving those specific common issues, Plaintiffs’ common proof is generally
3 suitable to resolve Plaintiffs’ and Class Members’ nuisance, negligence, and trespass claims.
4 Nuisance: In Oregon, nuisance is governed by an objective standard. Whether a condition
5 constitutes a nuisance depends on its effect on “a normal person of ordinary habits and sensibilities” in
6 the area in question, and not on the subjective experiences of each class member. Penland v. Redwood
7 Sanitary Sewer Serv. Dist., 156 Or App 311, 315, 965 P2d 433, 436 (1998) (quoting Jewett v. Deerhorn
8 Enterprises, Inc., 281 Or 469, 476, 575 P2d 164, 167-68 (1978)); see also Restatement (Second) of Torts
9 § 821F (1979) at comment d (“If normal persons living in the community would regard the invasion in
10 question as definitely offensive, seriously annoying or intolerable, then the invasion is significant.”).
11 Because this claim turns on an objective measure of how a defendant’s conduct affected the
12 class, it lends itself to class treatment. See O’Connor v. Boeing N. Am., Inc., 184 FRD 311, 331-32 (CD
13 Cal 1998) (holding that whether defendants’ alleged activities constituted a nuisance was common to all
14 members of the property class even if damages may vary for each individual class member); Rowe v.
15 E.I. DuPont De Nemours & Co., 262 FRD 451, 462 (DNJ 2009) (“Plaintiff’s private nuisance claim is
16 appropriate for class treatment. The issues relating to this claim turn on the conduct of Defendant and
17 the objective perception of a ‘normal person’ in the community rather than the conduct and perceptions
18 of the individual class members.”). In short, no individual testimony by class members is probably
19 required to determine whether an invasion by hazardous air pollution is offensive.
20 The Iowa Supreme Court’s decision in Freeman is instructive. The court, affirming a lower
21 court’s order certifying a class in an air pollution case, noted that because Iowa uses an objective
22 “normal person” standard to determine whether something constitutes a nuisance, “any idiosyncratic
23 sensitivity, physical infirmities, lifestyle choices, preferences for use and enjoyment, or housekeeping
24 habits are immaterial to proving whether defendant’s conduct created a nuisance.” 895 NW2d at 121.
25 Here, Plaintiffs will offer evidence—outlined in Dr. Chernaik’s report—to show the types and
26 concentrations of pollutants Bullseye has emitted across the Bullseye Plume are objectively
27 unreasonable to a person of ordinary habits. Oregon, like Iowa, has an “objective” nuisance standard.
31 18
1 See State v. Lang, 273 Or App 113, 122, 359 P3d 349, 354 (2015) (“To cause public inconvenience,
2 annoyance, or alarm, an odor must be objectively offensive—that is, it must be offensive to an ordinary,
3 reasonable person under the circumstances.”). Plaintiffs will likely offer their own testimony and the
4 testimony of their neighbors to complement the expert testimony of Dr. Chernaik to establish that
5 Bullseye’s emissions have been “objectively offensive” in the whole Bullseye Plume. A jury might in
6 theory find otherwise, but the claim will rise or fall on common proof because “the factual determination
7 of whether a nuisance exists is capable of being made on a classwide basis.” Freeman, 895 NW2d at
8 122. Even if there are individual issues—such as “whether the interference was unreasonable or not”—
9 those can “be readily addressed at the damages phase” of a class trial. Collins., 248 FRD at 104-05.
10 Trespass: As with nuisance, trespass claims are commonly certified in contamination cases like
11 the present one. E.g., Turner, 234 FRD at 609 (nuisance and trespass claims “will not require the Court
12 to inquire extensively into individual cases for proof of liability.”); Bentley, 223 FRD at 488 (certifying
13 trespass claim); Ludwig, 2003 WL 22478842, at *1-5 (same). The Oregon Supreme Court is in accord. It
14 reversed the denial of certification of trespass to personal property claims in an air pollution case in
15 Hurt, 276 Or 925. In 2015, it discussed and endorsed Hurt. See Pearson, supra 358 Or 113-14.
16 Plaintiffs will prove with common evidence that Bullseye’s emissions trespassed on Class
17 Members’ property. In Oregon, a “[d]eposit on a person’s land of airborne particles emanating from a
18 neighboring plant has been held to be an invasion of that person’s right to the exclusive possession of
19 land.” Lunda v. Matthews, 46 Or App 701, 705, 613 P2d 63, 66 (1980); see also UCJI No. 53.01,
20 Trespass to Land, Cmt. (an “intrusion of fumes, gases, and odors can constitute a trespass”). As
21 explained by Dr. Chernaik, deposition rates derived from Dr. Gray’s modeling emissions show that
22 substantial amounts of toxic metals such as cadmium in particulate form from Bullseye’s furnaces
23 deposited on “each square meter” within the Bullseye Plume. Chernaik Rpt. at 8. Cadmium in particular
24 deposited at a predicted rate of at least 20% above health-based standards that have been adopted by
25 many jurisdictions. Id. at 9. That is reliable, common proof that does not require individual inquiry into
26 the circumstances of each property to determine whether Bullseye’s emissions have interfered with
27 Class Members’ right of exclusive possession of their property.

31 19
1 Negligence: Courts commonly certify negligence claims in environmental cases because
2 common questions going to liability predominate over individualized questions regarding damages. See
3 Turner, 234 FRD at 607 (extent of contamination on particular property “do[es] not require the type of
4 extensive individualized proof that would preclude class treatment of the negligence claim.”); Collins,
5 248 FRD at 104 (negligence arising from contamination certified where defendant’s “entire course of
6 conduct and knowledge of its potential hazards is a common issue to the class”); Wehner, 117 FRD at
7 645 (certifying negligence claim); Stanley v. U.S. Steel Co., 04-CV-74654, 2006 WL 724569, at *4-6
8 (ED Mich Mar 17, 2006) (same).
9 Here, the cause of each Class Members’ injury can be traced to Bullseye’s operations, creating a
10 “common nucleus of facts.” Ludwig, 2003 WL 22478842, at *5; see also Collins, 248 FRD at 104
11 (although causation may require individual proof, “proof as to the other elements of negligence will be
12 class-wide”); Bentley, 223 FRD at 487 (certifying class in pollution case where “cause of action arises
13 out of the same alleged course of conduct by Defendants”). Plaintiffs will present evidence of Bullseye’s
14 “course of conduct, its duty of care and corresponding breach, and its knowledge of the harms caused.”
15 Freeman, 895 NW2d at 123. For example, Plaintiffs will present common evidence that Bullseye had a
16 duty to its neighbors but breached that duty when it was aware the emissions control systems existed but
17 chose not to use them. Plaintiffs’ experts will explain how that breach caused harm to every property in
18 the Bullseye Plume. See Lowe v. Philip Morris USA, Inc., 344 Or 403, 413, 183 P3d 181, 186 (2008)
19 (distinguishing “purely economic harm” from harm to person or property, citing cases).16
20 Bullseye may attempt to argue that individual inquiries will be necessary to determine the
21 amount of damages, but a “class action is not inappropriate simply because each class member will have
22 to make an individualized showing to recover damages.” Delgado v. Del Monte Fresh Produce, N.A.,
23 260 Or App 480, 493, 317 P3d 419, 426 (2014). See also LeClercq, 2001 WL 199840, at *7 (“There is
24
25
16
Should the court grant Plaintiffs’ Motion to Amend, punitive damages claims are particularly susceptible to common proof
26 because they focus on a defendant’s conduct. See Iorio v. Allianz Life Ins. Co. of N. Am., No. 05-CV-633-JLS (CAB), 2009
WL 3415703, at *6 (SD Cal Oct 21, 2009) (class treatment of punitive damages appropriate because “[p]unitive damages
27 award will be based largely on the misconduct of the Defendant”).

31 20
1 ample support for certifying a class action in a contamination case even though there may be
2 individualized issues of damages.”).
3 Because common issues predominate, a class action is the superior method to resolve Class
4 Members’ claims. ORCP 32 B’s other factors also support a finding of superiority.
5
2. ORCP 32 (B)(1): Separate actions
6
ORCP 32 B(1) directs courts to consider whether (1) separate actions by class members “creates
7
a risk of inconsistent or varying adjudications with respect to members of the class which would
8
establish incompatible standards of conduct for the party opposing the class,” or whether (2)
9
“adjudications with respect to members of the class which would as a practical matter be dispositive of
10
the interests of the other members not parties to the adjudications or substantially impair or impede their
11
ability to protect their interests.”
12
Here, individual litigation of Class Members’ common issues “would risk disparate results
13
among those seeking redress[,] would exponentially increase the costs of litigation for all, and would be
14
a particularly inefficient use of judicial resources.” Fox v. Cheminova, Inc., 213 FRD 113, 130 (EDNY
15
2003) (cleaned up); accord Mejdrech, 319 F3d at 911. Plaintiffs are seeking injunctive relief regarding
16
Bullseye’s monitoring and reporting of ongoing emissions, and in the form of testing for Class
17
Members’ property, and Class Members. Multiple lawsuits could result in multiple, varying requests for
18
how Bullseye should operate to minimize neighborhood impact.17
19
20 3. ORCP 32 B(2): Class-wide injunctive or declaratory relief
21
Courts next consider the “extent to which the relief sought would take the form of injunctive
22
relief or corresponding declaratory relief with respect to the class as a whole.” ORCP 32 B(2). As with
23
the prior factor, this one weighs in favor of class treatment in this case because it would benefit both
24
25 17
Likewise resolving any Class Members’ punitive damages claims would ensure this matter does not impede others’
abilities to protect their rights because multiple, individual claims for punitive damages could as a practical matter drain
26 Bullseye’s ability to pay claims. See State ex rel. Young v. Crookham, 290 Or 61, 72, 618 P2d 1268, 1274 (1980) (“class
actions, in appropriate cases, provide for unitary consideration of [punitive] damages”); In re Northern Dist. of California
27 Dalkon Shield IUD Prods. Liab. Litig., 526 F Supp 887, 895-96 (ND Cal 1981) (defendant moved for punitive damages class
to protect from “prejudice caused by the filing of multiple suits” and the possibility of bankruptcy).
31 21
1 Bullseye and the proposed subclasses if Bullseye was subject to only one, uniform injunctive order, such
2 as an order requiring ongoing fence-line monitoring and reporting of emissions. See Advisory
3 Committee notes to Federal Rule of Civil Procedure 23 (“[I]ndividual litigations of * * * landowners’
4 rights and duties respecting a claimed nuisance, could create a possibility of incompatible adjudications.
5 Actions by or against a class provide a ready and fair means of achieving unitary adjudication.”).
6 4. ORCP 32 B(4) & ORCB 32 B(5): Interest in individual control of litigation

7
ORCP 32 B(4) directs courts to consider the “interest of members of the class in individually
8
controlling the prosecution or defense of separate actions”; relatedly, part B(5) of that rule considers
9
“[t]he extent and nature of any litigation concerning the controversy already commenced by or against
10
members of the class.” Here, Plaintiffs are aware of only one other civil case regarding Bullseye’s
11
emissions: a personal injury case in federal court that has now been dismissed. Silva v. Bullseye Glass
12
Co., No. 3:16-CV-01078 (D Or). Thus, there is not a strong interest from putative Class Members in
13
filing their own, costly individual action, though there is certainly keen interest in the outcome of this
14
aggregate litigation filed on their behalf. See, e.g., Ex. 14 (September 29, 2017 post in “EPAC”
15
Facebook group page by group member providing update on litigation).
16
5. ORCP 32 B(6): The desirability of this forum
17
18 ORCB 32 B(6) directs the court to consider the “desirability or undesirability of concentrating
19 the litigation of the claims in the particular forum.” Here, concentrating this litigation in Multnomah
20 County, where all Class Members have an interest in real property, is preferable.
21
6. ORCP 32 B(7) and B(8): Potential difficulties in management, and amount of claim
22
Under ORCP 32 B(7), courts weigh “[t]he difficulties likely to be encountered in the
23
management of a class action that will be eliminated or significantly reduced if the controversy is
24
adjudicated by other available means.” Even where a class is large, “a single administration is
25
undoubtedly less difficult” than processing individual claims. Alsea Veneer, Inc., 117 Or App at 55.
26
Relatedly, ORCP 32 B(8) asks courts to consider whether “the claims of individual class members are
27

31 22
1 insufficient in the amounts or interests involved, in view of the complexities of the issues and the
2 expenses of the litigation, to afford significant relief to the members of the class.”
3 These related factors weigh in favor of class litigation here for two reasons. First, resolving the
4 expensive, expert-intensive issues such as the standard of care and amount of historic emissions in one
5 case, on behalf of a class, is preferable to having to litigate those same issues again and again in
6 individual cases. Second, the alternative to not certifying a class means that many Class Members’
7 harms could go uncompensated. While the Plaintiffs’ individual diminution in value claims are
8 potentially significant, they are not so large to justify the expense of hiring the necessary experts—on
9 operation of a glassmaking facility, on emissions, on toxicity—to prosecute individual actions.
10 Addressing those issues in one case saves both the parties and the courts expense. Realistically, given
11 the costs of litigation, it is this case or nothing for most Class Members.
12 Plaintiffs’ subclass definitions also enable manageability. Firstly, the list of addresses in the
13 Bullseye Plume can be used to easily facilitate mailed notice in this case. See 3 William B. Rubenstein
14 Newberg on Class Actions § 8:28 (5th ed 2014) (“Generally speaking, first class mail is ideal for sending
15 individual notice to class members.”). Second, Plaintiffs address potential management concerns by
16 creating two subclasses based on the alleged infringement of the real property right. See id. § 7:30
17 (“subclassing often comes into play at the relief stage when conflicts arise over the distribution of
18 damages”); Collins, 248 FRD at 105 (in property pollution case, citing In re Visa Check/MasterMoney
19 Antitrust Litig., 280 F3d 124, 138 (2d Cir 2001), for the proposition that creating subclasses is one tool
20 courts can use to address management issues).
21 Members of the Owner Subclass will be entitled to diminution in value damages and to
22 reimbursement for expenses incurred testing their real property. Members of the Resident Subclass will
23 be entitled to occupancy-related damages, including the loss of use and enjoyment of their real property,
24 compensation for diagnostic and property testing, and any damage to personal property. They would
25 also be able to access the medical monitoring relief fund Plaintiffs seek. Many individuals will be
26 members of both subclasses, as the Plaintiffs are, and would be entitled to all forms of damage.
27

31 23
1 More generally, a class definition like the one proposed by Plaintiffs here is customary in
2 pollution class actions. E.g., Collins., 248 FRD at101 (“Many courts have certified classes defined by
3 geography[.]”); Cook, 151 FRD at 382 (certifying class defined by geographic boundaries based on dose
4 or exposure contours of radioactive and non-radioactive materials); Boggs, 141 FRD at 60-62 (certifying
5 class defined as persons within six miles of boundaries of plant that released hazardous materials);
6 Ponca Tribe of Indians of Oklahoma v. Cont’l Carbon Co., No. 05-CV-445-C, 2007 WL 28243, at *3
7 (WD Okla Jan 3, 2007) (“Plaintiffs’ experts have established the geographic limits of the class * * * ”).
8 Disputes about the precise spread of Bullseye’s contamination, if any, are merits issues that
9 should be resolved by the fact-finder at trial, not at the class certification phase. Bentley, 223 FRD at 479
10 (factual disputes about the area of impact go to the merits and not the propriety of certification); Turner,
11 234 FRD at 606 (certification not threatened by fact that “the oil did not spread uniformly throughout
12 the affected area” and “different homes in the area received differing degrees, if any, of oil
13 contamination.”); Collins, 248 FRD at 106 (extent of area impacted is a factual issue to be determined
14 on class-wide basis); Boggs, 141 FRD at 62 (“amount and effect of” dispersion of pollutants and effect
15 on health and property values are “merits issues”).
16 Plaintiffs’ abundant factual and expert evidence submitted in support of class certification
17 demonstrates that uniform, class-wide proof is available to ascertain the physical boundaries of the
18 Bullseye pollution, the magnitude of that pollution, and its resulting economic impacts in diminution in
19 property value as well as loss of use and enjoyment. In sum, balancing all ORCP 32 B factors
20 demonstrates that a class action is the superior method to resolving the proposed Class Members’ claim.
21 D. Notice Plan
22 When a court certifies a class, it must “direct that notice be given to some or all members of the
23 class under [ORCP 32 E(2)],” determine the time and form of notice, and determine the requirements for
24 opting out of the class. ORCP 32 F(1). Plaintiffs request that, if this Court certifies the subclasses, it
25 order the parties to confer on a notice plan to present to the Court within 30 days of its class certification
26 order. Providing notice should be straightforward and relatively inexpensive in this case given the
27 precise, geographically-defined class. For example, Class Members may receive direct mail, and may be

31 24
1 able to determine if they are in the Bullseye Plume by finding their address in an online listing of
2 Appendix A as part of a notice plan.
3 E. Trial Plan
4 The Court has set a trial date of June 11, 2018. As with notice, Plaintiffs propose that the Court
5 order the parties to confer on devising a trial plan after a ruling on class certification.
6 Plaintiffs preliminarily envision a three-phase trial, like the procedure employed in Freeman:
7 Phase 1 - Defendant’s course of conduct. This first phase would focus on Bullseye’s operations,
8 resolving questions central to Plaintiffs’ and Class Members’ negligence, nuisance, and, if leave to
9 amend is granted on Plaintiffs’ pending motion, punitive damages claims. For example, Plaintiffs will
10 present evidence from which a jury could conclude that Bullseye knew it was emitting hazardous
11 emissions, but did nothing to measure or control them, violating the applicable standard of care.
12 Phase 2 - Defining the pollution plume. The second phase of the trial would be an expert-
13 intensive presentation of the extent of Bullseye’s trespassing emissions, and the substantial and
14 unreasonable interference caused by those emissions. As Plaintiffs have explained above, common proof
15 such as air dispersion modeling and particulate deposition rates can establish class-wide interference
16 with Class Members’ rights to exclusive use and possession of their property, and the significance of
17 those intrusions.
18 Phase 3 – Damages: The final phase of the trial would present Plaintiffs’ “formula for calculating
19 damages.” Freeman., 895 NW2d at 111. This would be a simpler proposition than in Freeman because
20 Plaintiffs are seeking diminution in value and loss of use that are uniform across the stigmatized
21 Bullseye Plume, on behalf of two distinct subclasses.
22 IV. CONCLUSION
23 The revelation that Bullseye was the cause of a pollution hotspot shook Portland and drew national
24 attention when revealed in February 2016. Owners and residents in the now-ascertained Bullseye Plume
25 are entitled to a class-wide determination of the infringement of their real property rights stemming from
26 this contamination. Plaintiffs respectfully request that this Court permit Plaintiffs to pursue claims to
27 redress those and other harms by Bullseye on a uniform, class-wide basis.

31 25
1
2 DATED this 28th day of November, 2017.

KELLER ROHRBACK L.L.P.
3
4 By s/ Matthew J. Preusch
Matthew J. Preusch (Bar No. 134610)
5 mpreusch@kellerrohrback.com
6 801 Garden Street, Suite 301
Santa Barbara, CA 93101
7 Telephone: (805) 456-1496
Facsimile: (805) 456-1497
8
Daniel Mensher (Bar No. 074636)
9 dmensher@kellerrohrback.com
Amy Williams-Derry (Admitted Pro Hac Vice)
10 awilliams-derry@kellerrohrback.com
11 1201 Third Ave., Suite 3200
Seattle, WA 98101
12 Telephone: (206) 623-1900
Facsimile: (206) 623-3384
13
Karl G. Anuta (Bar No. 861423)
14 kga@integra.net
LAW OFFICE OF KARL G. ANUTA, P.C.
15 735 S.W. First Avenue
Strowbridge Bldg, Second Floor
16 Portland, Oregon 97204
Telephone: (503) 827-0320
17 Facsimile: (503) 228-6551
18 Attorneys for Plaintiffs and the Proposed Class
19
20
21
22
23
24
25
26
27

31 26
1 CERTIFICATE OF SERVICE
2 I hereby certify that I served a true copy of the foregoing PLAINTIFFS’ MEMORANDUM IN
3 SUPPORT OF MOTION FOR CLASS CERTIFICAION on:
4 Allan M. Garten
Carrie Menikoff
5 Kent Robinson
GRM LAW GROUP
6 5285 Meadows Road, Suite 330
Lake Oswego, OR 97035
7
Attorneys for Defendant
8
9 by the following indicated method or methods:

10 ☐ by faxing full, true, and correct copies thereof to the attorneys at the fax numbers shown
11 above, which are the last-known fax numbers for the attorneys' offices, on the date set forth below. The
12 receiving fax machines were operating at the time of service and the transmissions were properly
13 completed, according to the confirmation reports on file.
14 ☐ by mailing full, true, and correct copies thereof in sealed, first-class postage-prepaid
15 envelopes, addressed to the attorneys as shown above, the last-known office addresses of the attorneys,
16 and deposited with the United States Postal Service at Portland, Oregon, on the date set forth below.
17 ☐ by sending full, true, and correct copies thereof via overnight courier in sealed, prepared
18 envelopes, addressed to the attorneys as shown above, the last-known office addresses of the attorneys,
19 on the date set forth below.
20 ☐ by causing full, true, and correct copies thereof to be hand-delivered to the attorneys in
21 person or at the attorneys' last-known office addresses listed above on the date set forth below.
22 ☒ by electronic transmission of a notice of filing by the electronic filing system provided by
23 the Oregon Judicial Department for the electronic filing and the electronic service of a document via the
24 Internet to the electronic mail (email) address of a party who has consented to electronic service under
25 UTCR 21.100(1).
26 I hereby declare that the above is true to the best of my knowledge and belief. I understand that
27 this document is made for use as evidence in court and is subject to penalty of perjury.
28
30 Cer ti fic ate o f S er vi ce KE LLE R R O HRB AC K L.L.P .
1 1 2 0 1 T hird Av e n ue , S u it e 3 2 0 0
31 Sea tt le, W A 9 8 1 0 1
DATED: November 28, 2017
1
Signed: s/ Matthew J. Preusch
2
Matthew J. Preusch, Attorney for Plaintiffs
3
10
11
12
13
14
15
16
17
18
19
20
21
22
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30 Cer ti fic ate o f S er vi ce KE LLE R R O HRB AC K L.L.P .
31 Sea tt le, W A 9 8 1 0 1
APPENDIX A
Appendix A
Meeker, et al. v. Bullseye Glass Co.
Case No. 16CV07002
Multnomah County Circuit Court
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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22
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11/28/2017 4:25 PM
16CV07002
7
9 SCOTT MEEKER and ERIN MEEKER,

10 KRISTI HAUKE, ELIZABETH BORTE and CIVIL ACTION NO. 16CV07002
RINO PASINI, CHRISTIAN MINER, and
11 JUDY SANSERI and HOWARD BANICH; DECLARATION OF
individually and on behalf of all others MATTHEW PREUSCH
12 similarly situated,
IN SUPPORT OF MOTION
13 Plaintiffs, FOR CLASS CERTIFICATION
14 v.
15
16 corporation,
17 Defendant.
18
I, Matthew Preusch, hereby declare:
19
1. I am an associate in the law firm of Keller Rohrback L.L.P., and I am counsel of record
20
for Plaintiffs in this matter. I make this declaration of my own personal knowledge, and if called to do
21
so, I could competently testify to the matters stated herein.
22
2. Attached as Exhibit 1 is a true and correct copy of pages 18, 79, 80, and 93 of the
23
transcript of the deposition of Jim Jones taken on January 23, 2017.
24
3. Attached as Exhibit 2 is a true and correct copy of pages 79, 82, 83, and 111 of the
25
transcript of the deposition of Dan Schwoerer taken on August 30, 2017.
26
27
28
30 DE C LAR AT I ON O F M A TT HEW P RE US C H KE LLE R R O HRB AC K L.L.P .
31 Sea tt le, W A 9 8 1 0 1
1 4. Attached as Exhibit 3 is a true and correct copy of compiled excerpts of Plaintiffs’
2 deposition transcripts.
3 5. Attached as Exhibit 4 is a true and correct copy of a letter to Bullseye Glass Co. from
4 DEQ dated May 4, 2016 and Bates labeled BE00005845-BE00005846.
5 6. Attached as Exhibit 5 is a true and correct copy of a Cease and Desist Order issued by
6 DEQ to Bullseye Glass Co. dated May 19, 2016 and Bates labeled BE00002336-BE00002338.
7 7. Attached as Exhibit 6 is a true and correct copy of the November 16, 2017 report of Dr.
8 Andrew Gray.
10 Mark Chernaik.
12 John Kilpatrick.
13 10. Attached as Exhibit 9 is a true and correct copy of a map indicating the approximate
14 location of Plaintiffs’ properties.
15 11. Attached as Exhibit 10 is a true and correct copy of Lynne Terry, Portland’s toxic air:
16 Will young family have to leave home? The Oregonian (Feb 26, 2016).
17 12. Attached as Exhibit 11 is a true and correct copy of a Keller Rohrback L.L.P. firm
18 resume.
19 13. Attached as Exhibit 12 is a true and correct copy of the resume for Karl G. Anuta.
20 14. Attached as Exhibit 13 is a true and correct copy of Plaintiffs’ ORCP 32 notice letter,
21 sent to Bullseye Glass Co. on March 3, 2016.
22 15. Attached as Exhibit 14 is a true and correct copy of a post in the Eastside Portland Air
23 Coalition Facebook group by a group member providing an update on litigation dated September 29,
24 2017.
25 16. Attached as Exhibit 15 is a true and correct copy of Kirk Johnson, Toxic Moss in
26 Portland, Ore., Shakes City’s Green Ideals, The New York Times (Mar. 2, 2016),
27
28
31 Sea tt le, W A 9 8 1 0 1
1 https://www.nytimes.com/2016/03/03/us/toxic-moss-in-oregon-upsets-city-known-for-environmental-
2 ideals.html.
3 17. Attached as Exhibit 16 is a true and correct copy of Daniel Forbes, State Finds
4 Alarmingly High Arsenic, Cadmium Levels Near Two SE Portland Schools, The Portland Mercury (Feb.
5 3, 2016, 2:06 pm), http://www.portlandmercury.com/BlogtownPDX/archives/2016/02/03/arsenic-
6 cadmium-levels-near-two-se-portland-schools-are-alarmingly-high-state-finds.
7 18. Attached as Exhibit 17 is a true and correct copy of Bullseye source test results, DEQ’s
8 actions to identify and control the unknown hexavalent chromium source: Question and answers,
9 Department of Environmental Quality,
10 http://www.oregon.gov/deq/FilterDocs/BullseyeSourceTestHexchromeQA.pdf (last visited Nov. 20,
11 2017).
12 19. Attached as Exhibit 18 is a true and correct copy of Group protests SE Portland glass
13 company over toxics, KGW.com (Feb. 16, 2016, 11:54 pm), http://www.kgw.com/news/health/protest-
14 planned-urging-portland-glass-company-to-cease-operations/44790750.
15 20. Attached as Exhibit 19 is a true and correct copy of Andrew Dymburt, SE Portland
16 ‘shows solidarity’ at air quality meeting, KOIN 6 (Feb. 17, 2016, 5:34 pm),
17 http://koin.com/2016/02/17/abernethy-elementary-community-meeting-cadmium-arsenic-bullseye-glass-
18 02172016/.
19 21. Attached as Exhibit 20 is a true and correct copy of Angela Ruffoni, Gov. Brown
20 Launches Cleaner Air Oregon, KXL News (Apr. 6, 2016, 5:45 pm), http://www.kxl.com/gov-brown-
21 launches-cleaner-air-oregon/.
22 22. Attached as Exhibit 21 is a true and correct copy of a cached version of the website,
23 About, Eastside Portland Air Coalition, http://eastsideportlandair.org/about/ (last visited Nov. 10, 2017).
24 23. Attached as Exhibit 22 is a true and correct copy of Lynne Terry, Don’t eat backyard
25 vegetables near Portland glass factories, officials warn, The Oregonian (Feb. 20, 2016),
26 http://www.oregonlive.com/health/index.ssf/2016/02/dont_eat_backyard_vegetables_n.html.
27
28
31 Sea tt le, W A 9 8 1 0 1
1 24. Attached as Exhibit 23 is a true and correct copy of Press Release, Oregon Health
2 Authority, New soil, cancer, urine test data show low risk for Portland residents (Mar. 9, 2016),
3 http://www.oregon.gov/oha/ERD/Pages/New-Soil-Cancer-Urine-Data-Shows-Low-Risk.aspx.
4 25. Attached as Exhibit 24 is a true and correct copy of an image from a video included in
5 the report, Pat Dooris, Warning: Don’t eat produce grown near toxic hot spots, KGW (Feb. 19, 2016)
6 http://www.kgw.com/news/health/warning-dont-eat-produce-grown-near-toxic-hot-spots/49520386.
7 26. Attached as Exhibit 25 is a true and correct copy of Environmental Health Assessment:
8 Bullseye Glass Co., Oregon Health Authority,
9 http://www.oregon.gov/oha/PH/HEALTHYENVIRONMENTS/TRACKINGASSESSMENT/ENVIRO
10 NMENTALHEALTHASSESSMENT/Pages/bgfsite.aspx (last visited Nov. 20, 2017).
11 27. Attached as Exhibit 26 is a true and correct copy of Press Release, Department of
12 Environmental Quality, Cleaner Air Oregon, Ongoing monitoring at Bullseye Glass shows sustained
13 emissions reductions (Mar. 21, 2017), http://cleanerair.oregon.gov/ongoing-monitoring-bullseye-glass-
14 shows-sustained-emissions-reductions/.
15 28. Attached as Exhibit 27 is a true and correct copy of Fedor Zarkhin, Bullseye Glass back
16 in business with new device to control toxic emissions, The Oregonian (Sept. 8, 2016),
17 http://www.oregonlive.com/environment/index.ssf/2016/09/bullseye_glass_back_in_busines.html.
18 29. Attached as Exhibit 28 is a true and correct copy of pages 131 and 132 of the transcript
19 of the deposition of Daren Marshall taken on November 20, 2017.
20
21 I declare under penalty of perjury that the foregoing is true and correct.
22 Executed this 28th day of November, 2017, at Santa Barbara, California
23
s/ Matthew J. Preusch
24 Matthew Preusch
25
26
27
28
31 Sea tt le, W A 9 8 1 0 1
Exhibit 1
FOR THE COUNTY OF MULTNOMAH
SCOTT MEEKER and ERIN MEEKER, )

KELLY GOODWIN, BRUCE ELY and )
KRISTI HAUKE, ELIZABETH BORTE )
and RINO PASINI, CHRISTIAN )
MINER, and JUDY SANSERI and )
HOWARD BANICH; individually )
and on behalf of all others )
similarly situated, )
Plaintiffs, )
)
v. ) No. 16-CV-07002
)
BULLSEYE GLASS CO., an Oregon )
corporation, )
Defendant. )
VIDEO DEPOSITION OF JIM JONES
Taken on behalf of Plaintiffs
** Confidential Transcript **
* * *
BE IT REMEMBERED THAT the deposition of JIM
JONES was taken before Rosemary Tanzer, a Registered
Professional Reporter and a Certified Shorthand Reporter
for Oregon and Washington, on Monday, January 23, 2017,
commencing at the hour of 9:31 a.m., in the law offices
of PERKINS COIE LLP, 1120 NW Couch Street, 10th Floor,
Portland, Oregon.
* * *
Electronically signed by Rosemary Tanzer (101-277-636-4500) 48fd017f-2420-49b0-92e7-2db91ff79324

Page 18
09:54:13 1 control systems on the Tek furnaces?
2 A Because we continue to get complaints about the
3 opacity.
4 Q And how would you define opacity.
09:54:30 5 A I think that's best left up to DEQ.
6 Q Sure. And who are those complaints coming from?
7 A People -- I understand they are people driving by.
8 Q Do those complaints come from people who live in the
9 neighborhood as well?
09:54:48 10 A I think so.
11 Q How frequently do you get complaints about opacity?
12 A During this last year -- actually, I don't know the
13 number.
14 Q Do you know the nature of the complaints? What are
09:55:03 15 people complaining about?
16 A They're saying they see smoke coming out. I don't
17 think most people know how to read opacity.
18 Q So since you've installed -- you mentioned you have
19 plans -- let me start that over again.
09:55:29 20 You have plans to install, or at least are
21 considering installing, two additions in omissions
22 control devices. Do you know what the cost would be of
23 baghouses for those two furnaces or are you considering
24 connecting them to the existing baghouse system?
09:55:43 25 MS. CROOKS: Objection. Compound. And I think

CONFIDENTIAL
Page 79
12:54:02 1 the -- our opacity regulations in our permit in making
2 sure we were in compliance there.
3 Q And why -- do you know why he was concerned about
4 opacity?
12:54:20 5 A Because that's what DEQ was concerned about.
6 Q Are these the same opacity complaints I believe you
7 testified earlier that you had received complaints about
8 at Bullseye?
9 A Yes.
12:54:31 10 Q The next sentence is a statement attributed to you.
11 It says as soon as -- pardon me. I'll start again. "As
12 soon as we get the first baghouse we would like to run
13 the stack test, and then if it takes us three months we
14 would like to run chrome three in uncontrolled furnaces."
12:54:49 15 Why did you want to run chrome three in
16 uncontrolled furnaces?
17 A Because we -- because we believed that it was safe.
18 Q Do you believe that still?
19 A No, not without further testing.
12:55:10 20 Q Do you think it's reasonable for neighbors of
21 Bullseye Glass to be concerned about the use of chrome
22 three in uncontrolled furnaces?
23 MS. CROOKS: Objection. Calls for speculation.
24 Q BY MR. PREUSCH: Let me ask it a different way. If
12:55:21 25 you lived within a half mile of Bullseye Glass, would you
CONFIDENTIAL
CONFIDENTIAL
Page 80
12:55:24 1 have been concerned about the use of chrome three in
2 uncontrolled furnaces?
3 A Probably not because EPA and DEQ weren't concerned
4 about it.
12:55:37 5 Q Based on what you know now, would you provide the
6 same answer?
7 A They're concerned about it now.
8 Q But based on what you know now, would you be
9 concerned about it now?
12:55:49 10 A Yes.
11 Q The next paragraph down you said -- I believe you're
12 discussing the source testing for chrome. And one
13 passage from the sentence attributed to you is that
14 "furnaces are so small we have an eight-inch diameter
12:56:03 15 stack with very little effluent."
16 I had asked you earlier whether eight inches
17 was the stack diameter. Does this refresh your memory
18 now?
19 A I know that we had to -- I have a hard time
12:56:17 20 believing that I actually said that. I wouldn't have
21 known that it was actually eight inches. I did know we
22 had to size up our stacks just to get the equipment from
23 the testing companies in it, but I wouldn't have known
24 off the top of my head whether it was eight or
12:56:32 25 twelve inches. So that could have come from someone
CONFIDENTIAL
Page 93
01:17:30 1 Q BY MR. PREUSCH: The court reporter handed you
2 Exhibit 51. It begins with Bates number BE00017263 and
3 ends with 17265. It appears to be an e-mail chain from
4 February 15, 2016 including you, Brad Stewart, Rick
01:17:56 5 Allen, and Dane Lange. I apologize if I'm mispronouncing
6 that.
7 If I could have you look at the second page of
8 the e-mail.
9 A Yes.
01:18:13 10 Q There is an e-mail attributed to you from
11 February 14, 2016 at 12:00 a.m. It reads, "This is what
12 I've been dealing with... Frantic incompetency. Along
13 with hundreds of e-mails and phone calls telling me that
14 we are poisoning people."
01:18:34 15 Does that reflect what was going on the first
16 couple of weeks in February 2016?
17 A Yes.
18 Q Did you -- for how much longer did you continue to
19 receive hundreds of e-mails and phone calls, whether they
01:18:50 20 were telling you that you were poisoning people or not?
21 A I don't know how long but we -- we received phone
22 calls and e-mails into June/July. And the frantic
23 incompetency, I was talking about DEQ.
24 Q Do you still believe DEQ to be frantically
01:19:15 25 incompetent?

Page 122
1 CERTIFICATE
2 I, Rosemary Tanzer, a Registered Professional
3 Reporter, and a Certified Shorthand Reporter for Oregon
4 and Washington Certified Court Reporter, hereby certify
5 that said witness personally appeared before me at the
6 time and place set forth in the caption hereof; that at
7 said time and place I reported in stenotype all testimony
8 adduced and other oral proceedings had in the foregoing
9 matter; that thereafter my notes were transcribed through
10 computer-aided transcription, under my direction; and
11 that the foregoing pages constitute a full, true and
12 accurate record of all such testimony adduced and oral
13 proceedings had, and of the whole thereof.
14 Witness my hand at Portland, Oregon, this 1st
15 day of February, 2017.
16
17
18 _____________________
19
Rosemary Tanzer
20 OREGON CSR NO. 94-0299
Expires September 30, 2017
21
22
23
24
25

Exhibit 2
1 IN THE CIRCUIT COURT OF THE STATE OF OREGON
3 SCOTT MEEKER and ERIN MEEKER, )

KELLY GOODWIN, BRUCE ELY and KRISTI)
4 HAUKE, ELIZABETH BORTE and RINO )
PASINI, CHRISTIAN MINER, and JUDY )
5 SANSERI and HOWARD BANICH, )
individually and on behalf of all )
6 others similarly situated, )
Plaintiffs, )
7 )
vs. ) Case No.: 16-CV-07002
8 )
BULLSEYE GLASS CO., an Oregon )
9 corporation, )
Defendants. )
10 ___________________________________)
11 "CONFIDENTIAL"
12 VIDEOTAPED DEPOSITION OF DANIEL SCHWOERER
13 Taken in behalf of the Plaintiffs
14 Wednesday, August 30, 2017
15 BE IT REMEMBERED that, pursuant to Oregon Rules
16 of Civil Procedure, the deposition of DANIEL
17 SCHWOERER was taken before Victoria A. Guerrero,
18 Oregon Certified Shorthand Reporter, Registered
19 Merit Reporter, Registered Professional Reporter,
20 and Certified Realtime Reporter, on Wednesday,
21 August 30, 2017, commencing at the hour of 9:08
22 a.m., in the conference room of the law firm of GRM
23 Law Group, 5285 Meadows Road, Suite 330, in the City
24 of Lake Oswego, County of Washington, State of
25 Oregon.
www.LNScourtreporting.com
Daniel Schwoerer 8/30/2017 79
1 asking about, would that happen before the batch
2 heals over?
3 A No.
4 Q It would happen after that?
5 A After.
6 Q Did you get a response to this question?
7 A No.
8 Q Did you ask anybody else that question?
9 A Well, Dr. LaCourse.
10 Q Who is LaCourse?
11 A Dr. LaCourse is a glass scientist at
12 university -- upstate New York. Can't recall the --
13 Q Is it Alfred University?
14 A Alfred.
15 Q Did you ever get an answer to this question
16 about the amount of cadmium to be volatilized off
17 the glass melt from Bill LaCourse or anybody else?
18 A No.
19 Q What's your current understanding of how
20 much cadmium you'd expect to volatilize off of a
21 glass melt?
22 A I mean, the only understanding I have at
23 this point is that some does. What quantity? I
24 don't know.
25 Q How did you learn that some does?
1 Q Sorry.
2 Has your understanding that you learned in
3 the University of Wisconsin as to any other metals
4 and their tendency to volatilize or not changed
5 since February 2016?
6 A Yes.
7 Q In what way?
8 A You asked me if any other metals. So the
9 question, in what way? I don't understand.
10 Q Sure. I'll try to ask it a little better.
11 If I understand your testimony so far
12 correctly, it's that you learned at the University
13 of Wisconsin, and it had been your understanding up
14 until February 2016, that the metals used to color
15 the glass would not volatilize off of the glass
16 melt; is that correct?
17 A Yes, that's correct.
18 Q Has your understanding of that process
19 changed as to any of the metals used to color glass
20 since February 2016?
21 A Yes.
22 Q For which metals?
23 A Chromium.
24 Q How has your understanding changed as to
25 chromium?
1 A My understanding at this point is that a --
2 some of the chrome can volatilize off the surface of
3 a melt.
4 Q When it is volatilizing off the surface of
5 a melt, what form is the chromium?
6 A Well, it would volatilize off, again, my
7 understanding today, not prior to that, to any time,
8 is that -- or not prior to 2016, was that currently,
9 chrome can volatilize off as chrome -- as hex
10 chrome.
11 Q Is that the same as Chrome-6?
12 A Yes.
13 Q So if I say Chrome-6 or hex chrome or
14 hexavalent chromium, we'll be talking about the same
15 thing?
16 A Yes.
17 Q When did you learn that?
18 A Learned it when we did a source test for
19 DEQ in, I believe, March or April of 2016.
20 Q Who performed that source test?
21 A I believe it was Montrose.
22 Q Montrose?
23 A Yeah.
24 Q And you think that was April of 2016?
25 A In that time frame.
1 characterization.
2 A Incorrect characterization.
3 Q Is your belief that if any emissions at all
4 were coming out of Bullseye of hazardous materials
5 before February 2016, they were de minimis?
6 A Can you repeat that?
7 MADAM COURT REPORTER: "QUESTION: Is
8 your belief that if any emissions at all
9 were coming out of Bullseye of hazardous
10 materials before February 2016, they were
11 diminimous?"
12 THE WITNESS: Yes.
13 BY MR. PREUSCH:
14 Q Did you ever conduct any modeling of
15 emissions before February 2016 from Bullseye?
16 A No.
17 Q Did you ever do any air sampling of the air
18 around Bullseye before February 2016?
19 A No.
20 Q Did Bullseye Glass Company ever undertake
21 any study to estimate the amount of hazardous
22 emissions from its facility before February 2016?
23 A No.
24 Q Did you ever consider doing so?
25 A No.
Page 248
1 REPORTER'S CERTIFICATE
2 I, VICTORIA A. GUERRERO, Certified Shorthand Reporter,
3 Registered Merit Reporter, Registered Professional Reporter,
4 Certified Realtime Reporter, in and for the State of Oregon
5 do hereby certify that, pursuant to Oregon Rules of Civil
6 Procedure, DANIEL SCHWOERER personally appeared before me at
7 the time and place mentioned in the caption herein; that the
8 witness was by me first duly sworn/affirmed under oath and
9 examined upon oral interrogatories propounded by counsel;
10 that said examination, together with the testimony of said
11 witness, was taken down by me in stenotype and transcribed
12 through computer-aided transcription; and that the foregoing
13 transcript, review being requested by the witness or a
14 party, constitutes a true record of said examination of and
15 testimony given by said witness, and of all other oral
16 proceedings had during the taking of said deposition, and of
17 the whole thereof.
18 IN WITNESS WHEREOF, I have hereunto set my hand
19 at Portland, Oregon, this Thursday, September 7,
20 2017.
21
22
________________________________________
23 Victoria A. Guerrero, CSR, RMR, RPR, CRR
Oregon CSR No. 14-0428 (exp. 6-30-2020)
24 Washington CCR No. 3293 (exp. 3-15-18)
California CSR No. 8370 (exp. 3-15-18)
25 Hawaii CSR No. 490 (exp. 12-31-17)
Electronically signed by Victoria Guerrero (201-225-611-9146) bbaecbc1-06c4-46d8-ad5d-164003699b96

Exhibit 3
Page 1

SCOTT MEEKER and ERIN MEEKER,

KRISTI HAUKE, ELIZABETH BORTE and
RINO PASINI, and CHRISTIAN MINER,
and JUDY SANSERI and HOWARD BANICH;
individually and on behalf of all
others similarly situated,
Plaintiffs,
v. Case No. 16CV07002
BULLSEYE GLASS CO., an
Oregon corporation,
Defendant.
VIDEOTAPED DEPOSITION OF JUDY SANSERI

Taken on behalf of the Defendant
February 24, 2017
CONFIDENTIAL
Sanseri, Judy February 24, 2017
Page 42
1 Q. And are they physically located against your back
2 lot, the back fence?
3 A. Yes, right by the fence and the --
4 Q. So on the left-hand side of the photo?
5 A. Yes.
6 Q. Yes?
7 A. Yes.
8 Q. And are those arborvitae or some sort of --
9 A. Arborvitae in front of the fence.
10 Q. So you can't actually see your fence directly?
11 A. Not -- not in that place.
12 Q. Okay. And what types of vegetable were you growing
13 in this photograph?
14 A. Tomatoes, zucchini, cucumbers. Looks like there is
15 some kale in there. I can't really tell. That's
16 all I know for sure.
17 Q. What did you typically grow in your garden?
18 A. Similar. I mean, always tomatoes, cucumbers,
19 lettuce, lettuce, green beans, zucchini.
20 Q. Okay. When did you stop gardening in your garden?
21 I'm sorry, when did you stop gardening in these
22 raised beds?
23 A. Last year.
24 Q. When last year?
25 A. Well, I would have started in spring of 2016. I
Beovich Walter & Friend

Page 44
1 A. The left side would be the patio, the right side is
2 back to the pyramidals and the fence, and then
3 straight on would be going to Taggert Street.
4 Q. So at the top of the photograph, that's looking
5 towards Taggert Street?
6 A. Yes, it is.
7 Q. So actually the arborvitae is on your side fence?
8 A. It is.
9 Q. Okay. Can you see your back fence, the fence
10 between you and the neighbor on the other side of
11 your property in Exhibit 74?
12 A. Do you mean the back fence here?
13 Q. Yes. On the top of that photo there appears to
14 be --
15 A. Yes, I can see the back fence there.
16 Q. Okay. And do you have plants growing in front of
17 your back fence?
18 A. I have all sorts of plants, shrubbery, little
19 palms, that sort of thing there, but not edible
20 plants there.
21 Q. Okay. Why aren't you growing in your garden?
22 A. Because I don't trust the soil, and I don't want to
23 grow plants in a situation where there was cadmium
24 and arsenic and chromium and lead and all these
25 different glass chemicals coming my way. I didn't

Page 108
1 question.
2 THE WITNESS: I'm sorry.
3 MR. PREUSCH: That's all right.
4 Q. BY MS. CROOKS: So you learned about cadmium in
5 February of 2016. Correct?
6 A. February, March, yes.
7 Q. Okay. And so soon after you learned about cadmium
8 in February or March of 2016, you got on the
9 internet to look up cadmium exposure?
10 A. Yes.
11 Q. Okay. And what did you learn about cadmium
12 exposure when you looked it up at that time?
13 A. I don't recall everything I learned, but I did
14 learn that it's very toxic, and the most concerning
15 part that I read was that it stays in your body for
16 a long time and that it's stored in your kidneys
17 and you can have problems with your kidneys through
18 the years.
19 It can cause cardiovascular events, which would
20 include stroke, and it can leach out the calcium
21 from your bones, will make your bones more fragile.
22 It can cause anemia.
23 Q. Anything else that you recall?
24 A. Neurological damage of different sorts.
25 Q. Did you look up the level of exposure required to

Page 109
1 suffer from those types of symptoms?
2 A. I did not.
3 Q. Did you look up the effects of any other toxics
4 that you may have heard about in February or March
5 of 2016?
6 A. I did.
7 Q. Which toxics did you look up?
8 A. I looked up arsenic.
9 Q. Okay.
10 A. And lead. That's it.
11 Q. What did you learn about arsenic exposure?
12 A. That it's something that doesn't stay with you that
13 long. It's more recent. You can -- you can
14 only -- it seems like there was something about it
15 where you would have to catch -- you would have to
16 have it -- either the blood test or urine test --
17 it was a urine test, I think -- to see if it was
18 recent. I mean, it goes through your body rather
19 fast. It's eliminated fairly fast. Nothing like
20 cadmium.
21 Q. Okay.
22 A. I didn't read a whole lot about it. I think that's
23 about all I recall about arsenic. And lead,
24 that -- about children, and it, of course, is not
25 good for them and other people and that it -- it

Page 119
1 Q. Did you attend meetings in person with EPAC
2 members?
3 A. One time I did.
4 Q. Do you recall when that meeting was?
5 A. I don't recall the date. It was at a large
6 facility in Southeast Portland on -- around Duke
7 street. A school.
8 Q. Do you recall what was discussed?
9 A. Many things. DEQ situation, Bullseye, that sort of
10 thing.
11 Q. And who did the talking at those meetings?
12 A. Actually, OHA was there at the time, now that I
13 think about it.
14 Q. Okay.
15 A. Very short and sweet. It wasn't very long of a
16 meeting.
17 Q. And what information was OHA giving you?
18 A. They were just -- I think they were mainly
19 collecting information from people that were in the
20 audience.
21 Q. What kind of information?
22 A. Information about what they were experiencing
23 health-wise and in their -- their neighborhood
24 because this was a meeting for everybody from
25 Portland, Darlington area, Woodstock, a variety of

Page 222
1 A. Well, I was breathing in that air and the -- the
2 pollution was going in my neighborhood and in my
3 yard.
4 Q. Okay. Did you sign an engagement letter with
5 Keller Rohrback?
6 A. I did.
7 MR. PREUSCH: Can we take a break or are we
8 close?
9 MS. CROOKS: We're close.
10 (Pause in proceedings)
11 Q. BY MS. CROOKS: Do you understand that you are
12 serving -- that you are seeking to serve as a class
13 representative in a lawsuit?
14 A. Yes, I do.
15 Q. And what do you understand your role is as a class
16 representative in a class action lawsuit?
17 A. To give information when needed, to be as well
18 informed as I can be, and to know that this would
19 be my legal -- legal right, which I'm doing, and
20 I'm -- I'm representing my neighbors.
21 Q. Okay. Do you understand that you have a fiduciary
22 role as a class representative?
23 A. I do.
24 Q. And what do you understand that fiduciary role to
25 be?

Page 223
1 A. That I'm responsible for my legal charges, et
2 cetera. I don't know if that's a way to say it.
3 Q. Okay. What else do you understand about your
4 fiduciary role as a class representative?
5 MR. PREUSCH: Objection. Vague as to
6 fiduciary. Calls for a legal conclusion.
7 Q. BY MS. CROOKS: Do you know what fiduciary means?
8 A. I do. It's money.
9 Q. It actually isn't.
10 A. Oh, it isn't. Then I don't know anything about
11 that. I thought it was.
12 Q. Okay. Do you have an understanding that you are
13 asking the court to name you as someone who is
14 representative of your neighbors?
15 A. Oh, yes.
16 Q. And why do you believe you're representative of
17 your neighbors?
18 MR. PREUSCH: Objection. Calls for a legal
19 conclusion.
20 Q. BY MS. CROOKS: You may answer.
21 A. Because I'm one of the people that are affected
22 just like them, and they might not even know about
23 this, and I do, and I just want to represent them
24 and do what I feel is right.
25 Q. BY MS. CROOKS: Okay. Since August of 2016, when

Page 234
1 C E R T I F I C A T E
2
3 I, Julie A. Walter, CSR No. 90-0173, do hereby
4 certify that JUDY SANSERI personally appeared
5 before me at the time and place mentioned in the
6 caption herein; that the witness was by me first
7 duly sworn on oath and examined upon oral
8 interrogatories propounded by counsel; that said
9 examination together with the testimony of said
10 witness was taken down by me in stenotype and
11 thereafter reduced to typewriting; and that the
12 foregoing transcript, Pages 1 to 233, both
13 inclusive, constitutes a full, true and accurate
14 record of said examination of and testimony given
15 by said witness and of all other proceedings had
16 during the taking of said deposition, and of the
17 whole thereof, to the best of my ability.
18 Witness my hand at Portland, Oregon, this 9th
19 day of March, 2017.
20
21
22 Julie A. Walter
23 CSR No. 90-0173
24
25

Page 1


Plaintiffs,
Oregon corporation,
Defendant.
VIDEOTAPED DEPOSITION OF SCOTT MEEKER

March 2, 2017
CONFIDENTIAL
Meeker, Scott - CONFIDENTIAL March 2, 2017
Page 59
1 Facebook page?
2 A. Probably not.
3 Q. Would you have posted about the emissions more
4 generally in the past year on your own Facebook
5 page?
6 A. No.
7 Q. Have you looked to see if you have posted on your
8 Facebook page --
9 A. No.
10 Q. -- about Bullseye or the emissions?
11 A. Not recently.
12 Q. Okay.
13 MS. CROOKS: We might want to follow up with
14 you on that, Matt, if you haven't already.
15 MR. PREUSCH: Okay.
16 Q. BY MS. CROOKS: So you said that you attended a
17 meeting at Cleveland High School?
18 A. Um-hum (affirmative response).
19 Q. Do you remember when that meeting was?
20 A. Not the date, no.
21 Q. Do you remember if it was in February?
22 A. That would be appropriate.
23 Q. All right. Who was present at that meeting?
24 A. Oh, I think that was -- the DEQ and OHA were there.
25 Q. And who else was present?

Page 60
1 A. Lots of families and neighbors.
2 Q. Okay. Where was it held?
3 A. Cleveland High School in their auditorium.
4 Q. And you attended that meeting?
5 A. Yes.
6 Q. Did your wife attend with you?
7 A. Yes.
8 Q. Was your daughter with you as well?
9 A. No.
10 Q. What did you learn at that meeting?
11 A. We learned that there was still a lot of questions
12 and that Bullseye was possibly -- I can't recall if
13 they knew at the time or not -- but releasing heavy
14 metals into the air.
15 Q. When you say "they" knew, who is "they"?
16 A. DEQ.
17 Q. And what did DEQ tell you?
18 A. That there had been a moss survey done. They told
19 us the results of that moss study.
20 Q. What were the results of that moss study?
21 A. That there were high levels of cadmium in the moss.
22 Q. Where was the moss located when it was studied?
23 A. I believe it was Powell Park.
24 Q. Where is Powell Park?
25 A. Powell Park is on Southeast Powell right before

Page 81
1 Q. And so but it's generally coming from the east and
2 then going somewhere after it comes by your home?
3 MR. PREUSCH: I'm going to object to this whole
4 line of questioning. It calls for expert
5 testimony.
6 You can answer.
7 MS. CROOKS: I'm calling for his experiences.
8 THE WITNESS: Generally, "wind" would be the
9 right term because it changes all the time. I
10 don't know. My experience is that it likes to do
11 that, flow from east to west.
12 Q. BY MS. CROOKS: Okay. All right.
13 Obviously, if there is a storm or something
14 else --
15 A. Sure.
16 Q. -- the wind is going to change?
17 A. That's when you notice it more.
18 Q. When there is a storm?
19 A. When there is wind.
20 Q. Yes. How was your life changed since February of
21 2016 when the childcare center told you about air
22 emissions?
23 A. I still go to work every day. We don't let my
24 daughter in the backyard. We don't let my dogs
25 into the grassy part of the yard. They stay on the

Page 82
1 concrete or the gravel that Vee has recently put
2 in.
3 You know, my wife and I built a little
4 playhouse for my daughter that she got to play in
5 once maybe since we decided that wasn't
6 appropriate.
7 Q. Okay.
8 A. It's changed because I can't use the outside the
9 way I want my daughter to be able to be outside.
10 Q. So when did you stop allowing your dogs to go into
11 the backyard? Well, stop letting them be on the
12 grass in the backyard.
13 A. Around when we learned about Bullseye.
14 Q. Okay. So they still go outside?
15 A. Oh, yeah.
16 Q. And you try and keep them off the grass?
17 A. Yes.
18 Q. And your daughter, when did you stop permitting her
19 to play out in your backyard?
20 A. I think we let her go outside once to see the
21 playhouse, and that's the last time I remember her
22 other than just occasionally going out there to
23 just walk around and use her backyard once in a
24 while.
25 Q. So she does go out there?

Page 85
1 Q. So she has spent time outside?
2 A. Oh, yeah.
3 Q. It's just not on grass in the neighborhood?
4 A. Not on my grass.
5 Q. Does she play on other grass in the neighborhood?
6 A. No.
7 Q. Has she gone and played on any grass in Portland in
8 the past year?
9 A. She -- we used to go to Powell Park, but we haven't
10 been there in a long time. There is another park
11 that's up the road that we take her to, up
12 Gladstone near 34th by the elementary school that
13 we take her to. There is grass there.
14 Q. And she plays on that grass?
16 Q. Yes?
17 A. Yes.
18 Q. And why do you feel it's safe at 34th and Gladstone
19 for her to play on grass?
20 A. That's another half a mile further than Powell
21 Park. It's probably a mile from Powell Park.
22 Q. Okay. And you're not concerned that the grass may
23 have other contaminants on it from other sources?
24 A. Not any more than anyone -- than any grass ever --
25 that's ever been publicly fertilized. Who knows

Page 136
1 Q. So I'm no technological expert, but it appears to
2 me you have an iPad. Is that right?
3 A. I do.
4 Q. And you have an iPhone?
5 A. I do.
6 Q. And it appears that the third page is from your
7 iPad?
8 A. Yes.
9 Q. And the other two pages are from your phone?
10 A. That seems to be correct.
11 Q. Is it possible that you have kept notes on your
12 iPad that are not synced with your phone?
13 A. It's possible, but not probable.
14 Q. Why not probable?
15 A. Because I didn't. Because it's not. Because I
16 have been through it.
17 Q. You have been through your iPad, too?
18 A. To look for --
19 Q. Okay. So you write on May 7th, "I've decided to
20 plant in pots buried in the ground and replace the
21 dirt in our galvanized feed trough."
22 Is that correct?
23 A. Yes.
24 Q. And why did you decide to replace the dirt?
25 A. We have -- have reason to believe that the dirt

Page 137
1 wasn't going to be safe for our family.
2 Q. In May of 2016?
3 A. In May of 2016.
4 Q. How did you get the dirt out of the trough? You
5 just dug it out?
6 A. Shovel.
7 Q. And you did that?
8 A. I did.
9 Q. And then what did you do with that dirt?
10 A. It still resides on my property.
11 Q. Where is it?
12 A. It's in the pile of dirt that's -- that we talked
13 about previously.
14 Q. Is it co-mingled with the other dirt?
15 A. Yes.
16 Q. Did you dig out the other raised bed that we just
17 were talking about?
18 A. Just enough to get the pots in.
19 Q. And where did you put that dirt?
20 A. The same spot.
21 Q. And what about the wine barrel? Did you dig the
22 dirt out of that?
23 A. I did.
24 Q. And put the dirt in the pile?
25 A. I did.

Page 147
1 implications of heavy metal toxins?
2 A. No.
3 Q. You haven't sought any counsel or information from
4 him regarding the heavy metals?
5 A. I wouldn't have that information.
6 Q. Okay. So that's no?
7 A. That's a no.
8 Q. Was there anyone else you believe you may have text
9 messaged about the situation?
10 A. He is the only person I would text message stuff
11 like this to.
12 Q. Why did you decide to do become a class member in
13 this lawsuit?
14 MR. PREUSCH: Objection. Misstates the nature
15 of his involvement in this lawsuit.
16 Q. BY MS. CROOKS: Do you understand that you are a
17 class member?
18 A. Yes.
19 Q. Do you understand that you are the named plaintiff
20 in this lawsuit at the moment?
21 A. Yes.
22 Q. Do you understand that as the named plaintiff you
23 are seeking to be named the class representative
24 for the class of people?
25 A. Yes.

Page 148
1 Q. And why did you decide to take on that role?
2 A. To show my daughter that this is what we do. We
3 stand up for ourselves.
4 Q. Okay. And what is your understanding of what your
5 role as a class representative is?
6 A. To represent the class as best as my ability.
7 Q. Okay. Do you understand that you have a fiduciary
8 duty to the people in the class who aren't parties
9 to the lawsuit?
10 A. Yes, I do.
11 Q. And what is that fiduciary duty?
12 A. To make -- to -- to represent the class as best as
13 possible, to be who I am and be the average person
14 in the class.
15 Q. And why do you think you're the average person in
16 this class?
17 A. I'm not much different than any other Southeast
18 Portlander. I believe in the community. I walk a
19 lot of places. I -- my daughter is in school in
20 the neighborhood. There's not many people that
21 are -- a lot of people are in the same situation I
22 am in.
23 Q. And how did you find your lawyers at Keller
24 Rohrback?
25 A. My wife introduced me to them.

Page 164
2
4 certify that SCOTT MEEKER personally appeared
20
21
22 Julie A. Walter
23 CSR No. 90-0173
24
25

Page 1


Plaintiffs,
Oregon corporation,
Defendant.
VIDEOTAPED DEPOSITION OF HOWARD BANICH

February 24, 2017
Banich, Howard February 24, 2017
Page 21
1 Q. Have you contacted DEQ, the Department of
2 Environmental Quality?
3 A. No.
4 Q. Have you had any involvement with EPAC, the
5 Eastside Portland Air Coalition?
6 A. Not directly.
7 Q. I think Ms. Sanseri testified that you attended a
8 meeting --
9 A. Yes.
10 Q. -- that they were in?
11 A. Yes.
12 MR. PREUSCH: Make sure you let her finish
13 first, Howard.
14 Q. BY MS. PECK: Do you recall when that meeting was?
15 A. Not really. A few -- few months after February
16 2016, so sometime in the spring, I'll guess.
17 Q. Do you remember generally what was discussed at
18 that meeting?
19 A. I do, yes.
20 Q. What was that?
21 A. There were representatives of DEQ, of -- oh, gosh,
22 the other organizations, the Oregon Health
23 Authority, whatever it's called, and there were a
24 lot of -- and some local activists.
25 And the meeting was set up for the

Page 25
1 Complaint and our location within it is very
2 concerning.
3 Q. Are there other industrial facilities in that hot
4 spot that you're aware of?
5 A. Close to it, I think. I'm not sure if they are
6 within it.
7 Q. What might those close ones be?
8 A. They are the ones we talked about earlier.
9 Q. The cement factory?
10 A. The rail yards, yeah.
11 Q. And your property is also close to Powell
12 Boulevard. Is that right?
13 A. Yes.
14 Q. And would you characterize your property as being
15 nearby I-5?
16 MR. PREUSCH: Objection. Vague as to "nearby."
17 Q. BY MS. PECK: How far away do you think I-5 is from
18 your property?
19 A. In terms of mileage, I don't know. On a normal
20 day, it takes about 25 minutes to get from our
21 house onto I-5.
22 Q. Without traffic or with traffic?
23 A. On a normal traffic day, so some traffic, yes.
24 Q. Other than not gardening and -- yeah, let's just
25 say other than not gardening, how else has your

Page 26
1 life changed since you received the news about the
2 emissions?
3 A. We have shut up our house. We filled it with air
4 purifiers. We take our shoes off when we come in
5 the house. We wipe our dog's feet every time he
6 comes back in the house, which we used to do only
7 when it was raining. We don't use our backyard for
8 social purposes at all.
9 Q. Do you let your dog go in the backyard?
10 A. Yes.
11 Q. For long periods of time?
12 A. On occasion, yes.
13 Q. How long would you say you typically leave your dog
14 in the backyard?
15 A. At most, maybe six hours.
16 Q. How many times a week would you let -- is it a boy
17 or a girl?
18 A. It's a boy.
19 Q. How long -- how many times a week would you let him
20 stay outside for six hours?
21 A. Rarely. I mean, once every few months.
22 Q. In a normal week, how much time do you think your
23 dog spends outside in the backyard?
24 A. In a normal week, maybe an hour, just to go outside
25 and do his business.

Page 52
1 Q. The next sentence says, As a result the value of
2 your property has declined?
3 A. Yes.
4 Q. Other than what you have learned from your lawyers,
5 what facts do you have to support that allegation?
6 A. If we were to put our house up for sale, we would
7 have to disclose that our house is in the hot spot,
8 and I can't think of any reasonable buyer who would
9 want to pay full price after knowing that.
10 Q. So reviewing paragraphs 56 through 60 -- and I'll
11 give you a moment to do that, and my question will
12 be, Is there anything inaccurate about those
13 paragraphs?
14 A. That's accurate.
15 Q. Do you understand that you're seeking to serve as a
16 class representative in this lawsuit?
17 A. I do.
18 Q. What do you understand your role is as a class
19 representative?
20 A. To represent our neighborhood and our neighbors as
21 well as ourselves.
22 Q. Do you understand you have a fiduciary role as the
23 class representative?
24 A. I do.
25 Q. Do you understand that if a court certifies a class

Page 59
2
4 certify that HOWARD BANICH personally appeared
20
21
22 Julie A. Walter
23 CSR No. 90-0173
24
25

Page 1


Plaintiffs,
Oregon corporation,
Defendant.
VIDEOTAPED DEPOSITION OF ELIZABETH BORTE

March 8, 2017
CONFIDENTIAL
Borte, Elizabeth - CONFIDENTIAL March 8, 2017
Page 97
1 A. Around this time, right after finding out about the
2 Mercury article.
3 Q. Okay. So prior to 2016, did your children play in
4 the backyard?
5 A. Yeah, all over.
6 Q. So beginning in February of 2016, your children
7 played in the backyard, but in the dirt where --
8 A. Very, very rarely, and only in that one spot where
9 we put the nursery soil.
10 Q. Okay. Was this nursery soil from Mt. Scott Fuel?
11 A. No. It was -- what's the one on -- Portland
12 Nursery.
13 Q. Okay. And when you say "very rarely," how often
14 did you let your kids go out in the backyard?
15 A. Maybe once a week. You can't keep them tied up
16 inside all the time.
17 Q. Is this the only soil testing you had done in your
18 yard?
19 A. Yes.
20 Q. Because you're not allowed to tell me privileged
21 information, that's the answer?
22 A. The only soil testing I did.
23 Q. Okay.
24 (Exhibit 137 marked)
25 Q. BY MS. CROOKS: I'm going to hand you what I've

Page 118
1 A. We did not eat the grapes or plums or blueberries
2 in 2016.
3 Q. Okay. You didn't eat them, but in terms of
4 gardening them, did you garden them?
5 A. What does that mean?
6 Q. Well, that's a good question.
7 A. We watched them grow.
8 Q. Right. So is there any care needed for the plum
9 tree?
10 A. I don't know.
11 Q. Did you need to trim the tree?
12 A. We trimmed the trees, yes.
13 Q. Okay. And you did that work yourself?
14 A. I don't think we did that last year. We did a lot
15 of trimming this winter.
16 Q. Okay. So you might have trimmed the fruit trees
17 and the trees generally in the winter or the fall
18 of 2015?
19 A. Yeah.
20 Q. And in terms of the blueberry plants, did you do
21 any work on those plants in 2016?
22 A. No.
23 Q. And why not?
24 A. What do we do? I don't know what work would need
25 to be done.

Page 121
1 Q. Yes. 2015.
2 A. Well, we planted the blueberries and we amended the
3 soil where we planted them.
4 Q. How did you amend the soil?
5 A. We brought in bags of soil from the nursery when we
6 planted.
7 Q. Okay.
8 A. The blueberries.
9 We mowed the lawn, trimmed the trees, you know,
10 trimmed the roses back and rhododendrons and
11 general stuff.
12 Q. Okay. What did you do in 2016 to tend to your
13 yard, yard work?
14 A. We did a lot less in the early spring because we
15 were staying out of the yard. And then later in
16 the year -- yeah. I don't know. We trimmed this
17 past winter, fall.
18 Q. Trimmed like the trees and the grape vines?
20 Q. Yes?
21 A. Yes.
22 Q. Did you continue to mow?
23 A. We did later in the summer.
24 Q. Okay. So you didn't mow in the spring?
25 A. In the early spring, no.

Page 144
1 Simply the cost that they have spent on the
2 testing so far?
3 MR. PREUSCH: Let's talk about that off the
4 record or when you notice my deposition.
5 MS. CROOKS: All right. I'll do that. I'll
6 notice you up soon, Matt.
7 MR. ANUTA: Do I get to defend? That could be
8 fun.
9 Q. BY MS. CROOKS: Do you understand that you are
10 seeking to serve as a class representative in this
11 lawsuit?
12 A. Yes, I do.
13 Q. And what do you understand your role is if the
14 Court appoints you as a class representative?
15 A. I don't know. Be deposed, offer my personal
16 experience as an example for the whole group.
17 Q. Any other role you understand you would be required
18 to fulfill?
19 A. Testify in court.
20 Q. All right. Do you understand that you have a
21 fiduciary role as a class representative?
22 A. Yes.
23 Q. And what do you understand that fiduciary role to
24 be?
25 A. To protect the interests of the class financially.

Page 145
1 Q. What do you mean "financially"?
2 A. Ensure that people are reimbursed financially for
3 troubles caused by emissions from Bullseye.
4 Q. How much time have you spent assisting your counsel
5 in this litigation since you joined the class or
6 since you joined the lawsuit?
7 A. At least 20 or 30 hours. I would have to think
8 back probably and add them up.
9 Q. Is 20 to 30 an estimate?
10 A. That's an estimate.
11 Q. Sure, but do you think you need to spend more time
12 than that to estimate the total amount that you
13 have spent?
14 A. Well, it's possible. I mean, it's been over the
15 past year, so remembering what I was doing in March
16 and April and August and December, you know.
17 Q. All right. Have you ever heard what an incentive
18 payment is?
19 A. Yes.
20 Q. What is your understanding of an incentive payment?
21 A. I don't know what it is, but I've heard of it.
22 Q. You don't know what an incentive payment is?
23 A. No.
24 Q. In what context have you heard of it?
25 A. I heard of it --

Page 154
2
4 certify that ELIZABETH BORTE personally appeared
20
21
22 Julie A. Walter
23 CSR No. 90-0173
24
25

Page 1


Plaintiffs,
Oregon corporation,
Defendant.
VIDEOTAPED DEPOSITION OF BRUCE ELY

March 13, 2017
CONFIDENTIAL
Ely, Bruce - CONFIDENTIAL March 13, 2017
Page 13
1 Q. Do you know if any fertilizer was used on your
2 property?
3 A. Yes. I've fertilized the grass.
4 Q. Okay. What kind of fertilizer did you use?
5 A. Just regular fertilizer. I don't know how to
6 describe it other than intended for the grass.
7 Q. Do you know if it was organic?
8 A. I don't know.
9 Q. Before 2016 did you eat any vegetables that were
10 grown in your garden?
11 A. Yes.
12 Q. Would you say you ate them for most of your meals,
13 or how frequently did you eat them?
14 A. In the summer and fall when the vegetables were
15 available, yes, most meals.
16 Q. Did you supplement your vegetables with anything
17 from the grocery store or co-ops?
18 A. I don't know.
19 Q. Do you still eat from your garden today?
20 A. No.
21 Q. When is the last time you ate from your garden?
22 A. 2015.
23 Q. Why aren't you eating from your garden today?
24 A. Because we're worried about the safety of the soil.
25 Q. What are you worried is in the soil?

Page 15
1 Q. Do you still host once a month?
2 A. No, not as often and -- not as often.
3 Q. Okay. How frequently would you say?
4 A. Let's go with every other month. When I say "every
5 other month," I mean during the summertime.
6 Q. Right.
7 A. Not -- not now.
8 Q. Today is beautiful.
9 A. Yesterday would have been.
10 Q. And why don't you host dinner parties as often as
11 you used to?
12 A. Partially because of our concerns of the soil and
13 the air.
14 Q. You said "partially." What's the -- are there any
15 other reasons?
16 A. Maybe it's raining. I'm sure there is other
17 reasons we haven't done it as often, but nothing
18 specific as that.
19 Q. Do you know where the Bullseye facility is located?
20 A. I do.
21 Q. Do you know how far your house is from there?
22 A. I would estimate it would be a quarter of a mile.
23 Q. Which direction is Bullseye from your house?
24 A. West.
25 Q. Do you know the size of the lot that your house

Page 35
1 A. I'll list a couple things. We -- we stopped using
2 the garden, which Kristi especially really enjoyed.
3 It's her garden. I help out a lot with it. And
4 we're talking vegetable garden specifically. And
5 she has completely stopped doing that, so we don't
6 enjoy the -- the process of gardening the
7 vegetables.
8 And I know that the -- doing the yard work,
9 sort of gardening, trimming plants and everything,
10 she has changed. We both changed. We feel like we
11 have to protect ourselves a little bit in doing
12 what should be routine things because of our
13 concerns from Bullseye reports.
14 I think we have entertained less in our
15 backyard because of it. Certainly we have invited
16 different guests, friends that we have that are
17 kids, when we have had them over, we have stayed
18 inside because we don't want to be responsible for
19 them crawling around and getting in the dirt or
20 whatever, you know. You know what I'm saying
21 there. So those are a few of the things.
22 The -- when the news -- when Kristi forwarded
23 me the article, she was extremely stressed out,
24 which, in turn, affects my life, obviously, being
25 her husband. And she was so upset that I

Page 36
1 encouraged her to get involved in any way she
2 could, by researching and getting involved with
3 this lawsuit. So those are some of the things.
4 Q. And since this is one of the claims that your
5 making is that your life has changed, I'm going to
6 ask you to just keep on listing all the ways that
7 you can think of in which your life has changed.
8 So can you -- do you have any other examples?
9 A. Another example would -- the way we even inside
10 operate. We didn't used to take off our shoes at
11 the door, ask our guests to take off their shoes,
12 which I was really against. I hated the idea of
13 doing that, but conceded at this point.
14 Q. Any other ways that your life has changed?
15 A. Not that I can think of right now.
16 Q. All right. So you said that you have stopped using
17 the vegetable garden?
19 Q. Were you aware that OHA issued a news release
20 saying that it's safe to eat from gardens in your
21 neighborhood?
22 A. I was aware of that, yes.
23 Q. Yet you still are not eating from your garden.
24 That's right?
25 A. Correct, because it's one piece of information and

Page 37
1 I've been around long enough to know that just
2 because one person or agency is saying one thing,
3 doesn't mean that that's -- can be accurate, in the
4 long run.
5 Q. You said you and Ms. Hauke also have been taking
6 extra precautions whenever you are doing yard work.
7 What are those precautions?
8 A. Wearing gloves, at times wearing a mask, the
9 similar mask that I was talking about earlier.
10 Q. Anything else that you do to protect yourself?
11 A. Again, taking shoes off.
12 Q. You said that your wife was very stressed whenever
13 she learned the news.
15 Q. Can you describe some of the manifestations of that
16 stress that you notice?
17 A. I don't know what's directly related to her being
18 stressed. That's hard to say. She probably knows
19 that better, but I know when my wife is stressed
20 out and upset about things and she is -- she
21 constantly talks about the case -- or not the case,
22 the issue. Not so much now as much, but at the
23 time for months it was just like nonstop. That's
24 what we talked about.
25 Q. Why do you think she talks about it less now?

Page 43
1 A. No.
2 Q. What documents did you review in preparation for
3 your deposition today?
4 A. Most -- the ones we have in front of us.
5 Q. Anything else?
6 A. No.
7 Q. Did you meet with your lawyer?
8 A. I did.
9 Q. How long was the meeting?
10 A. About four hours.
11 Q. And who was there?
12 A. Myself, Kristi Hauke, and Matt.
13 Q. Before preparing for the deposition today, how many
14 times have -- or have you spoken with Daniel
15 Mensher?
16 A. Daniel Mensher. I don't believe so.
17 Q. Have you spoken with Karl Anuta?
18 A. No.
19 Q. I'm assuming you have spoken to Matt Preusch?
20 A. I have.
21 Q. And putting aside that you knew him before this
22 lawsuit started, how often would you say that
23 you're in contact with Mr. Preusch relating to this
24 lawsuit?
25 A. How often? I could put a number, once a week.

Page 45
1 Q. Did you review that complaint before it was filed
2 with the Court?
3 A. Yes.
6 A. Yes.
7 Q. And what do you understand your role to be?
8 A. To represent everybody in the class, not just
9 myself, and to be knowledgeable in the topic.
10 Q. Do you understand that you have a fiduciary role as
11 a class representative?
12 A. Yes.
13 Q. And what do you understand your fiduciary
14 obligation to be?
15 A. To represent the other people in the class, their
16 needs.
17 Q. Since you became involved in this lawsuit, how much
18 time have you spent on this litigation?
19 A. I would estimate it at 30 to 40 hours.
20 Q. Can you describe what you did in those 30 to 40
21 hours without divulging attorney-client
22 confidences.
23 A. Reading.
24 Q. Reading what?
25 A. Reading the documents that have come out, finding

Page 47
2
4 certify that, BRUCE ELY appeared before me at the
5 time and place mentioned in the caption herein;
6 that the witness was by me first duly sworn on
7 oath, and examined upon oral interrogatories
8 propounded by counsel; that said examination,
9 together with the testimony of said witness, was
10 taken down by me in stenotype and thereafter
11 reduced to typewriting; and, that the foregoing
12 transcript, Pages 1 to 46, both inclusive,
13 constitutes a full, true and accurate record of
14 said examination of and testimony given by said
15 witness, and of all other proceedings had during
16 the taking of said deposition, and of the whole
17 thereof, to the best of my ability.
20
21 Julie A. Walter
22 CSR No. 90-0173
23
24
25

Page 1


Plaintiffs,
Oregon corporation,
Defendant.
VIDEOTAPED DEPOSITION OF KRISTI HAUKE

March 12, 2017
CONFIDENTIAL
Hauke, Kristi March 12, 2017
Page 22
1 Q. Okay. Do you still have a garden today? I know
2 it's -- let me ask you this: Did you have a garden
3 last year in 2016 for vegetables?
4 A. No.
5 Q. And why not?
6 A. I was worried about consuming plants out of my
7 garden.
8 Q. Okay. Did you still have blueberries?
9 A. I didn't harvest them -- or I harvested them
10 because it's not supposed to be good for the plant
11 to let the fruit drop.
12 Q. Okay. So the berry plants still -- they grow
13 year-round. Is that right?
14 A. Yeah. I mean, it's alive year-round, but harvest
15 can be long.
16 Q. They usually come up in August?
17 A. Yeah, here, I guess.
18 Q. Okay. Did you grow flowers last summer?
19 A. Yes.
20 Q. Anything else in your yard that you would consider
21 part of your gardening?
22 A. No.
23 Q. Did you garden in 2015, a vegetable garden?
24 A. Yes.
25 Q. Have you done research regarding soil contaminants

Page 23
1 for gardening?
2 A. Yes.
3 Q. And why did you do that research?
4 A. Because of my concerns for being able to grow a
5 garden and consume what I was growing.
6 Q. Okay. When did you do that research?
7 A. After February of last year.
8 Q. All right. And what did you learn from your
9 research?
10 A. Do you have a more specific question?
11 Q. Sure. What did you learn about your ability to
12 continue to garden on your property on
13 28th -- 26th, Southeast 26th Avenue?
14 A. That if my soil was contaminated, that it might not
15 be a good idea to garden.
16 Q. Okay.
17 A. Vegetable garden.
18 Q. What about other types of garden?
19 A. That I should probably take certain precautions on
20 how I garden.
21 Q. In terms of how you handled the dirt?
22 A. Yes.
23 Q. Okay. And did you take those precautions in 2016?
24 A. Prior -- or past February, yes.
25 Q. Okay. We like garden photos in this case.

Page 32
1 Q. Do you have that same fencing on any other part of
2 your property?
3 A. Yes.
4 Q. Where is it located?
5 A. It would be on the south side.
6 Q. So between your neighbor's property on the south?
7 A. Yes.
8 Q. But there is no fence on the north side?
9 A. There is a fence.
10 Q. Okay. The same type of fencing?
11 A. No.
12 Q. What kind of fence is on the south side -- or on
13 the north side?
14 A. Wood.
15 Q. So in addition to gardening in your yard, it looks
16 like both the front and the backyard, what other
17 uses do you have for your yard?
18 A. Having parties, barbecues.
19 Q. Okay. And were those in the backyard or the side
20 yards?
21 A. Backyard.
22 Q. And how often would you use them for parties or
23 barbecues?
24 A. Once a month.
25 Q. Year-round?

Page 33
1 A. No. I would say spring, summer, fall.
2 Q. Okay. In 2016 did you continue to have
3 get-togethers in your yard?
4 A. Not as often.
5 Q. How often did they happen in 2016?
6 A. Maybe every other month.
7 Q. Okay. So you continued to have people over, just
8 not as often?
9 A. Yes.
10 Q. And you continued to do some gardening in your yard
11 in 2016?
12 A. Yes.
13 Q. But you did not grow a vegetable garden. Is that
14 correct?
15 A. Correct.
16 Q. So the raised beds just laid bare?
17 A. Wildflowers. I put wildflowers in there.
18 Q. Okay. Did you continue to tend to the large plants
19 that I can't remember their names?
20 A. Yes.
21 Q. Phlorinians?
22 A. Photinia.
23 Q. Photinia.
24 And you had to harvest the blueberries off the
25 bushes. Is that correct?

Page 48
1 A. Yes.
2 Q. Is there any additional construction on Southeast
3 26th?
4 A. I don't know.
6 Q. BY MS. CROOKS: I've handed you what I've marked as
7 Exhibit 185, which is Plaintiff Hauke Ely 1 through
8 3.
9 Do you recognize this document?
10 A. Yes.
11 Q. What is this document?
12 A. It's a DEQ update.
13 Q. So this is an email dated February 19th,
14 2016th -- '16 from you to Bruce Ely regarding DEQ
15 update.
16 Where did you get the attachment, which is a
17 DEQ document?
18 A. Online.
19 Q. Were you following the DEQ website for information
20 during this period of time?
21 A. Yes.
22 Q. Okay. Were you following other government websites
23 for information, like the Oregon Health Authority?
24 A. When you say "following," what do you mean?
25 Q. Looking at them to get information.

Page 49
1 A. Yes.
2 Q. And what did you understand that this update was
3 providing?
4 A. Results from air and soil sampling.
5 Q. Okay. Did you have your soil tested around your
6 home?
7 MR. PREUSCH: Objection. I would instruct you
8 not to answer to the extent you need to reveal
9 privileged or work product information.
10 THE WITNESS: I cannot answer.
11 Q. BY MS. CROOKS: Prior to March of 2016, did you
12 have your soil sampled or soil tested?
13 MR. PREUSCH: The same objection.
14 You can answer, if you can.
15 THE WITNESS: I cannot answer.
16 Q. BY MS. CROOKS: So what I'm trying to ask you is
17 before you engaged Mr. Preusch, did you -- do you
18 know what it means to engage a lawyer?
19 A. Yes.
20 Q. Okay. And have you engaged Mr. Preusch as your
21 lawyer?
22 A. Yes.
23 Q. And when did you do that?
24 A. February 2016.
25 Q. In February of 2016?

Page 54
1 street to travel through your neighborhood.
2 MR. PREUSCH: Objection. Assumes facts not in
3 evidence.
4 Q. BY MS. CROOKS: Have you seen freight trucks use
5 your street?
6 A. Yes.
7 Q. Have you seen a lot of freight trucks use your
8 street?
9 MR. PREUSCH: Objection. Vague as to "a lot."
10 You can answer if you understand the question.
11 THE WITNESS: What do you -- what's "a lot"?
12 Q. BY MS. CROOKS: Regular traffic on a daily basis?
13 A. I would say yes, there is regular traffic on a
14 daily basis on my street.
15 Q. And that traffic regularly includes on a daily
16 basis freight trucks. Is that correct?
17 A. Yes.
18 Q. Has your life changed since February of 2016?
19 A. Yes.
20 Q. How has it changed since February of 2016?
21 A. I'm more cautious how I use my yard and my house.
22 Q. And in terms of how you are cautious about how you
23 use your house, what do you mean by that?
24 A. I take off my shoes and instruct my visitors,
25 friends, whoever comes over, to take their shoes

Page 55
1 off as well.
2 Q. And why do you do that?
3 A. I don't want them tracking things from the outside
4 soil around my yard into my home.
5 Q. Okay. Any other uses that you have changed with
6 respect to your home?
7 A. No.
8 Q. And in terms of cautious about how you use your
9 yard, explain that to me.
10 A. I always wear gloves now where before, prior to
11 that time, I didn't always use gloves. I wouldn't
12 always wash my hands or my feet or take off my
13 shoes before coming inside the house.
14 Q. And now you wash your hands more?
15 A. Yes, prior to coming inside or directly after
16 coming inside.
17 Q. Okay. Any other changes that you have made since
18 February of 2016?
19 A. No.
20 Q. Any other changes to your life since February of
21 2016?
22 A. What types of changes?
23 Q. Changes that you attribute to learning the news in
24 February of 2016 related to air emissions.
25 A. No.

Page 62
1 A. Yes.
2 Q. So this article wasn't specific to air emissions at
3 Bullseye. Is that right?
4 A. Correct.
6 Q. BY MS. CROOKS: I've handed you what I've marked as
7 Exhibit 188, Plaintiff Hauke Ely 8 through 13.
8 Do you recognize this document?
9 A. Yes.
10 Q. What is Exhibit 188?
11 A. A Q & A on air toxics.
12 Q. Okay. And where did you receive this document?
13 A. I believe the community meeting.
14 Q. Which community meeting?
15 A. At Cleveland High School.
16 Q. So did you attend that meeting?
17 A. Yes.
18 Q. Did your husband attend that meeting with you?
19 A. No.
20 Q. Did anyone else attend with you?
21 A. Yes.
22 Q. Who else did you go with?
23 A. Sarah LaBarge and Stacey Addison.
24 Q. Who is Stacey Addison?
25 A. Stacey lives in the house behind Tim and Sarah's

Page 89
1 Q. Anyone else?
2 A. No.
3 Q. And which of your lawyers was present?
4 A. Matt.
5 Q. Any others?
6 A. No.
7 Q. What documents did you review to prepare?
8 A. All of the given documents that I supplied to my
9 lawyer.
10 Q. The ones that have Bate labels on bottom that say
11 "Plaintiff Hauke Ely"?
12 A. Yes.
13 Q. Have you spoken with any of the other named
14 plaintiffs in this lawsuit?
15 A. No.
16 Q. Do you know who those people are?
17 A. No.
18 Q. You just don't know their names or you don't know
19 them personally?
20 A. I don't know them personally.
21 Q. Why did you decide to join this lawsuit as a class
22 member -- sorry, as a class representative?
23 A. I felt that this issue affected myself and my
24 neighbors and that I could do a good job at
25 representing them for myself and them.

Page 90
1 Q. Okay. What do you understand your job as a class
2 representative is?
3 A. To look out for the interest of the class.
4 Q. And how will you do that?
5 A. By being honest and providing all materials
6 requested.
7 Q. What do you understand your fiduciary obligation is
8 in the class context?
9 A. Remind me what "fiduciary" is.
10 Q. Fiduciary is someone who is acting on behalf of
11 others.
12 A. Okay. Now can you ask the question again?
13 Q. Sure. What do you understand your fiduciary
14 obligation will be? I probably answered my own
15 question.
16 A. It's to look at everybody's best interest,
17 including myself, but not -- not having myself
18 above the class.
19 Q. Okay. Why don't we take a few minutes. Let me see
20 if I have any other documents I really need to mark
21 as exhibits.
22 MR. PREUSCH: Okay. Thank you.
23 (RECESS 11:37 to 11:43)
24 (Exhibits 195 to 197 marked)
25 Q. BY MS. CROOKS: I'm handing you what I've marked as

Page 106
2
4 certify that KRISTI HAUKE personally appeared
20
21
22 Julie A. Walter
23 CSR No. 90-0173
24
25

Page 1


Plaintiffs,
Oregon corporation,
Defendant.
VIDEOTAPED DEPOSITION OF ERIN MEEKER

March 2, 2017
CONFIDENTIAL
Meeker, Erin - CONFIDENTIAL March 2, 2017
Page 9
1 Q. And in reviewing the complaint, you know that
2 you're a named plaintiff. Is that right?
3 A. Yes.
4 Q. What is your understanding of what a named
5 plaintiff is?
6 A. I am a representative of my area, my class, and I
7 am -- I am representing them in this.
8 Q. Why did you decide to be a named plaintiff in this
9 lawsuit?
10 A. I feel it's my responsibility as a citizen to stand
11 up for things when I feel things are wrong.
12 Q. Have you ever done that before?
13 A. I have not, not in a legal sense, no.
14 Q. Have you in some other sense?
15 A. I have attended marches and other things like that
16 of a political nature.
17 Q. Prior to February of 2016?
18 A. No.
19 Q. So only since February 2016 have you attended
20 marches or things of a political nature?
21 A. Yes.
22 Q. What marches did you attend?
23 A. The Portland Women's march.
24 Q. Any other marches?
25 A. I did the -- the small march that we did in

Page 10
1 February of 2016 with other local neighborhood
2 residents.
3 Q. Is that what your husband called a picket?
4 A. Yes.
5 Q. Okay. And where was the March from and to?
6 A. We began at Powell Park and walked to Bullseye's
7 building.
8 Q. Okay. Any other marches?
9 A. No.
10 Q. All right. Where did you grow up?
11 A. I moved to Portland when I was a freshman in high
12 school, so I grew up in Portland, and I also grew
13 up in the Bay Area in California.
14 Q. Where did you live when you were finishing out high
15 school here?
16 A. Tigard.
17 Q. Is that where you met Mr. Meeker?
18 A. It is.
19 Q. You graduated from high school?
20 A. I did.
21 Q. Did you attend college?
22 A. I did.
23 Q. Where did you attend?
24 A. Point Loma Nazarene University.
25 Q. Where is that?

Page 31
1 A. There is some invasive clematis and also a
2 butterfly bush.
3 Q. Okay. So Exhibit 101 was taken well in advance of
4 Exhibit -- Exhibits 97 through 100? Maybe it's 98
5 through 100?
6 A. Yes, 98 through 100, yes. Yes.
7 Q. Okay. Did you take photos of your garden in 2015?
8 A. Beyond the photos that you're seeing, maybe a few
9 but not a lot.
10 Q. So none of these photos that we have just -- well,
11 sorry. Rory -- photographs 98 through 100 are from
12 2015 as best as you can tell?
13 A. Yes.
14 Q. In 2016, we heard from your husband that you did
15 have a garden in 2016. Correct?
16 A. Yes.
17 Q. And did you garden at all in 2016, you personally?
18 A. Yes.
19 Q. What did -- what was your role in gardening in
20 2016?
21 A. I would water from time to time. I was not the
22 primary caretaker. I also probably planted a few
23 of the plants.
24 Q. All right. As I understand it, you planted the two
25 water troughs, the feeding troughs, and you planted

Page 32
1 the two wine barrels?
2 A. We planted one wine barrel.
3 Q. One wine barrel. And then your husband constructed
4 some sort of planter out of a temporary retaining
5 wall with dirt in it and then pots in that dirt?
6 A. That's correct.
7 Q. Was there any other gardening that happened in your
8 yard in 2016?
9 A. Some limited flower gardening.
10 Q. Okay. Who did the flower gardening?
11 A. That's me.
12 Q. And where did you do the flower gardening?
13 A. All pots on our patio area.
14 Q. Okay. So just pots of flowers?
15 A. Correct.
16 Q. Is that consistent with what you did in 2015 in
17 terms of pots of flowers?
18 A. Yes.
19 Q. That's how you had your garden or your patio?
20 A. Yes.
21 Q. Okay. So if your husband was the primary gardener,
22 why was he the primary gardener in 2016?
23 A. I typically didn't have time in my day to go
24 outside and garden.
25 Q. Was your day different in 2016 than it was in 2015?

Page 35
1 Q. Got it.
2 And you were trying new drainage just because
3 you had learned something new or why?
4 A. Yeah, we had -- you know, our neighbors had talked
5 about reusables and, you know, instead of throwing
6 out garbage, to use these as space savers and
7 containers and you don't have to buy as much dirt
8 and those kinds of things, so we tried it.
9 Q. Maybe not next year?
10 A. Well, that's the year it actually worked better.
11 The water drained better through there, but
12 I -- and then when we replaced the dirt, we removed
13 all of those pieces.
14 Q. I see.
15 A. Filled it in with all new dirt, and that did not
16 have good drainage.
17 Q. I see. You didn't put the used milk cartons back
18 in?
19 A. Right.
20 Q. Where did you get the dirt that you replaced your
21 containers?
22 A. Mt. Scott Fuel.
23 Q. Do you remember what type of dirt from Mt. Scott?
24 A. There are potting and gardening soil mix.
25 Q. Is that the same soil you used in the years before?

Page 120
1 Q. Which? Are the one in the front with the baby
2 or --
3 A. No. I'm back further in the crowd, and I
4 can -- I'm pretty sure I can tell it's me by my
5 coat and my dark hair, and I remember standing in
6 that general direction, that general area. I can't
7 be 100 percent sure it's me. It's a pretty small
8 picture. But I think if it was in color I would
9 have a better chance.
10 Q. Are you standing by the "Bag that sack -- stack"?
11 A. Yeah, behind that and to the right.
12 Q. Okay. So you wrote "The Guilt."
13 What is this post about?
14 A. This is about the guilt that I feel for not being
15 able to protect my child.
16 Q. Protect her from what?
17 A. What seems to be a toxic environment.
18 Q. And you're talking about taking her to Powell Park,
19 is that right?
21 Q. And you no longer take her to Powell Park?
22 A. I do not.
23 Q. But you take her to another park at 34th and
24 Gladstone. Is that correct?
25 A. Yes.

Page 149
1 seeking in this lawsuit?
2 A. "As a result of Defendant's conduct" --
3 Q. I'm sorry, I should specify. Why don't you read
4 paragraph 79 to yourself.
5 A. Okay. Sorry.
6 Q. After you've had a chance to do so, then you can
7 tell us.
8 A. Okay.
9 Q. Have you had a chance to read it?
10 A. Yes.
11 Q. Does that remind you of other things you are
12 seeking in this lawsuit to answer Ms. Crooks'
13 question?
14 A. Yes.
15 Q. And what are those things?
16 A. The loss of use of our property.
17 Q. And can you tell me a little more -- I think we
18 heard some testimony from your husband about how
19 you have lost the use of your property since
20 February 2016?
21 A. We certainly don't use the backyard as much as we
22 used to. Very little, actually. It's mostly
23 blocked off now to keep us and the dogs from
24 tracking in dirt and other things. We definitely
25 host less events because there is not enough space

Page 150
1 if you block off our yard.
2 Q. Anything else not just about loss of use but other
3 damages you're seeking?
4 A. We would like to have -- to be reimbursed for any
5 remediation that needs to be done or any property
6 that needs to be changed.
7 Q. I think you testified earlier that you looked at
8 soil testing, but it was cost probative.
9 Would you like Bullseye to pay for testing of
10 your soil?
11 A. Yes.
12 Q. Okay. Thank you. You can put that down. Here,
13 I'll take it from you.
14 Earlier Ms. Crooks was asking you about other
15 polluters in the neighborhood. Do you remember
16 that conversation?
17 A. I do.
18 Q. And I believe you testified at the time that you
19 were focused on Bullseye. Do you remember that?
20 A. I do.
21 Q. Could you tell me why you focused on Bullseye even
22 though you're aware of other potential sources of
23 emission in your neighborhood?
24 A. Sure. In this case, DEQ was able to tell us that
25 they felt Bullseye was the source of these

Page 159
2
4 certify that ERIN MEEKER personally appeared before
5 me at the time and place mentioned in the caption
6 herein; that the witness was by me first duly sworn
7 on oath and examined upon oral interrogatories
8 propounded by counsel; that said examination
9 together with the testimony of said witness was
11 reduced to typewriting; and that the foregoing
15 witness and of all other proceedings had during the
16 taking of said deposition, and of the whole
20
21
22 Julie A. Walter
23 CSR No. 90-0173
24
25

Page 1


Plaintiffs,
Oregon corporation,
Defendant.
VIDEOTAPED DEPOSITION OF KELLY GOODWIN

March 10, 2017
CONFIDENTIAL
Goodwin, Kelly - CONFIDENTIAL March 10, 2017
Page 40
1 Q. So you purchased soil at Portland Nursery?
2 A. Yes.
3 Q. Okay. Which herbs do you have planted in planters?
4 A. So everything, I think, except for the rosemary and
5 the lavender.
6 Q. And where are your planters located?
7 A. In the front yard.
8 Q. The front yard.
9 And the rosemary and lavender are also located
10 in the front yard. Is that correct?
11 A. Yes.
12 Q. And the mint that is planted in the backyard, is
13 that planted in a planter?
14 A. No.
15 Q. It's planted in the yard?
16 A. It's in the soil.
17 Q. In the ground?
18 A. Yes.
19 Q. Okay.
20 MR. PREUSCH: Counsel, are we at a good
21 stopping point for a short break?
22 MS. JACOBS: Sure.
23 (RECESS 9:18 to 9:29)
24 Q. BY MS. JACOBS: Ms. Goodwin, why didn't you eat
25 vegetables from your yard in the summer of 2016?

Page 41
1 A. I was concerned about the news reports of toxicity.
2 Q. What news reports of toxicity are you referring to?
3 A. When the news originally broke about the emissions,
4 there were guidance from the city that you
5 shouldn't garden in our neighborhood.
6 Q. Guidance from the city, you said?
7 A. I think it was in the city or from the powers that
8 be, I guess.
9 Q. Okay. Did you see any guidance from the Oregon
10 Health Authority stating that it was safe to garden
11 in your neighborhood?
12 A. I saw the follow-up news articles, but once you
13 tell me not to garden, why would I take a risk?
14 Q. And what did you think the risk was?
15 A. Risk of exposure to arsenic, cadmium, chromium,
16 because I figured I had already been exposed, I
17 didn't want to have any increase of that exposure.
18 Q. And what time period did you decide not to garden?
19 A. Immediately, when I saw the news articles telling
20 me, you know, not to garden.
21 Q. Do you know what month that was?
22 A. I assume it was February.
23 Q. Okay. And you have not gardened since February
24 2016?
25 A. No, other than just cleaning up the yard.

Page 58
1 A. I do. I have table and chairs.
2 Q. Okay. And where is that located?
3 A. In the backyard. And I also have a front porch
4 with a rocking chair and a swing.
5 Q. Do you have any other furnishings in your yard?
6 A. There is also a little table and chairs on the back
7 porch.
8 Q. Anywhere else?
9 A. No.
10 Q. Other than maybe lounging in your hammock or
11 sitting at a table and chairs or doing yard work,
12 do you have any other activities in your yard?
13 A. Just -- I guess just hanging out on the porch. I
14 used to do that a lot.
15 Q. On the back porch or the front porch?
16 A. On the front porch in the swing.
17 Q. Did you hang out on your front porch on the swing
18 in 2016?
19 A. A lot less.
20 Q. How often would you say that you hung out on the
21 porch?
22 A. Probably -- probably just twice. Not very long.
23 Q. Why didn't you hang out on the front porch?
24 A. Because I have a different feeling about my yard.
25 Q. Can you describe the feeling you have about your

Page 91
1 to receive more information.
2 Is that -- was oregonlive.com your primary
3 source of information about Bullseye Glass Company?
4 A. That was where I had seen the main news articles,
5 yeah.
6 Q. And what other sources of information did you have
7 about Bullseye Glass Company?
8 A. I have a Google and I have --
9 Q. When you say you have a Google, what do you mean?
10 A. Well, I can Google --
11 Q. Okay.
12 A. -- to learn more. So I don't know what other sites
13 that led me to, but I did research.
14 Q. What did you research?
15 A. I researched to learn as much as I possibly could
16 about what was going on.
17 Q. So what sorts of topics did you research?
18 A. I basically searched for negative health effects
19 based on exposure to the chemicals, any news
20 articles I could find, as one would. You know,
21 you're a little worried.
22 Q. Were those news articles about Bullseye Glass
23 Company or news articles about health effects?
24 A. Both probably. I guess I had seen some news
25 articles that there were certain people who were

Page 92
1 filing legal complaints about specific -- there was
2 one woman who had lung cancer. It's been a long
3 time since I looked at that.
4 Q. Okay.
5 A. But there was one woman who was seeking personal
6 injury.
7 Q. Any other?
8 A. And I noticed -- I saw a lot of news articles
9 basically saying there is a high school right
10 there, there is a daycare right there, learning
11 about what my neighbors in the neighborhood were
12 dealing with because of it.
13 Q. On the page that ends Bates number 11 --
14 A. Yes.
15 Q. -- the next page, you tell Michael that you spoke
16 with an attorney who is considering a class action
17 lawsuit against the company.
19 Q. Who did you speak with?
20 A. It would have been Keller and Rohrback.
21 Q. Okay.
22 MR. PREUSCH: I will instruct the witness if
23 there are additional questions along this line, you
24 can disclose that we had conversations but not the
25 content of those conversations.

Page 95
1 prior to last year.
2 Q. BY MS. JACOBS: Prior to February 2016?
4 Q. You used to open your windows often?
5 A. Every nice day.
6 Q. Every nice day.
7 And did you open your windows after February
8 2016?
9 A. No.
10 Q. You have never opened your windows?
11 A. Well, I have opened them, but I don't make a habit
12 of it. It's only like -- I'll open the window if
13 I've cooked something smokey.
14 Q. Okay. How often would you say you have opened your
15 windows?
16 A. I don't know. Probably all together last summer I
17 might have opened them three times. I don't know.
18 Q. Okay. Do you take walks in your neighborhood?
19 MR. PREUSCH: The same objection. Vague as to
20 time.
21 Q. BY MS. JACOBS: You can answer it if you
22 understand.
23 A. I used to walk a lot more in the neighborhood.
24 Q. Prior to February 2016?
25 A. Yes.

Page 115
1 Q. Okay.
2 A. Or sometimes she would --
3 MR. PREUSCH: I'm just going to instruct the
4 witness not to go into anymore details about the
5 form of our communication. Frequency is okay.
6 Q. BY MS. JACOBS: Have you spoken with any of the
7 other named plaintiffs?
8 A. No.
9 Q. Have you emailed with any of the other named
10 plaintiffs?
11 A. No.
12 Q. Have you had any communication with any of the
13 other named plaintiffs?
14 A. No.
15 Q. You found Keller Rohrback through a news article.
16 Is that correct?
18 Q. Did you sign an engagement letter with Keller
19 Rohrback?
20 A. Yes.
23 A. Yes.
24 Q. Okay. What do you understand the role of a class
25 representative in a class action lawsuit to be?

Page 116
1 A. To provide accurate and honest information.
2 Q. Any other role?
3 A. No.
4 Q. Do you understand that you have a fiduciary role as
5 a class representative in a class action lawsuit?
6 A. What do you mean by "fiduciary"?
7 Q. What does that mean to you?
8 A. Well, generally "fiduciary" means something to do
9 with finance.
10 And what is the nature of your question?
11 Q. So the question was do you understand that you have
12 a fiduciary role which has something to do with
13 finance as a class representative?
14 A. I don't know what you mean.
15 Q. Okay.
16 A. I don't -- I don't have any expenses that were due
17 from me, I guess. That would be my answer to that.
18 Q. Okay.
19 A. But I think -- is fiduciary also talking about just
20 ensuring that the case is fair and that the needs
21 and -- needs and interests of all class members are
22 equally shared?
23 Q. Is that one -- do you understand yourself to have
24 that role?
25 A. Yes.

Page 117
1 Q. Okay. And so that role is -- what do you
2 understand the scope of your role to be?
3 A. To represent the class.
4 Q. Okay. And what does that entail?
5 A. Providing accurate and honest information.
6 Q. Okay. And you just described a sort of expanded
7 role when we were talking about fiduciary
8 obligations.
9 A. What do you mean?
10 Q. Let me look back at your testimony.
11 Do you believe that you have a role in ensuring
12 that the case is fair and that the needs and
13 interests of class members are equally shared?
14 A. Yes.
15 Q. Okay. Since March 2016, how much time have you
16 spent on this litigation?
17 A. Probably up to 100 hours.
18 Q. Okay. And what is your role in providing direction
19 to Keller Rohrback about the litigation?
20 MR. PREUSCH: Objection. You can testify as to
21 what your understanding is, but you can't -- I
22 instruct you not to discuss any of our
23 conversations or the content of those
24 conversations.
25 THE WITNESS: I don't provide direction to

Page 123
2
4 certify that KELLY GOODWIN personally appeared
20
21
22 Julie A. Walter
23 CSR No. 90-0173
24
25

Page 1


Plaintiffs,
Oregon corporation,
Defendant.
VIDEOTAPED DEPOSITION OF RINO PASINI

March 15, 2017
CONFIDENTIAL
Pasini, Rino - CONFIDENTIAL March 15, 2017
Page 59
1 A. There are a couple of rosemary bushes. We had one
2 on the north side yard. It's not really a yard.
3 It's just kind of like an alleyway. And we had
4 rosemary there. And we have -- had -- I just took
5 out a -- one we had in the front next to our
6 driveway, rosemary bush.
7 Q. Do you have any other herbs?
8 A. I think I -- I think there was some sage. Maybe
9 some sage or -- that might have came with the
10 house. I can't remember if I might have planted
11 some, too. I think that's it. I'm not -- I'm
12 not -- yeah, I think that might be it.
13 Q. Did you eat the rosemary and sage from your garden?
14 A. Yes.
15 Q. And when is the last time you ate rosemary and sage
16 from your garden?
17 A. It's been a little while. Yeah, definitely
18 not -- probably -- definitely not in the last year
19 and -- so maybe a year-and-a-half or two years
20 since we've had any of that.
21 Q. When is the last time that you ate grapes from your
22 yard?
23 A. Probably last year.
24 Q. When you say "last year" can you tell me what year
25 you're talking about?

Page 65
1 learned about that from the Mercury story in
2 February 2016?
3 A. Sure, that sounds about right.
4 Q. Okay. Since you read the story in the Mercury,
5 have you or your family changed your behaviors with
6 respect to your yard?
7 A. Yes. Well, we tried -- like I said, we tried to,
8 you know, curb our -- the eating habits of the kids
9 because -- yeah, that and things were just kind
10 of -- we just were kind of putting -- we definitely
11 tried to let -- didn't let the kids play out back
12 as much because, you know, the soil was in
13 question, so we tried to kind of put a halt on like
14 lots of outside activity.
15 Q. Anything else?
16 A. I'm sorry, what was the original question?
17 Q. If you changed your behaviors with respect to your
18 yard since reading the Portland Mercury article.
19 A. Yeah, yeah, just try to not -- not -- not -- keep
20 our children out of the dirt and out -- outside, in
21 the outside areas.
22 Q. It sounds to me like you tried to keep the kids
23 from eating fruits from the yard, but in some
24 instances you weren't able to prevent them from
25 eating fruits in the yard. Is that accurate?

Page 66
1 A. Yes.
2 Q. And you said that you tried not to let the kids
3 play out back as much. Are there instances when
4 the children did play out back since --
5 A. Right when we first learned about it, I think it
6 was pretty -- it was -- we were -- we just didn't
7 let them go outside at all. We would just go to
8 parks and stuff like that. We wouldn't -- because
9 we were -- it was -- it was pretty jarring to get
10 that information. It was very scary and we were
11 kind of trying to figure everything out, so we
12 weren't letting them go out back as all.
13 Q. Since -- okay. For how long did you prevent the
14 children from going out back at all?
15 A. I don't know. For a few -- a couple months, a
16 couple few months I want to say.
17 Q. And after that few months passed, did you start
18 letting the children go out back occasionally?
19 A. Yeah. Well, it was after -- I think after we
20 learned that Bullseye had stopped using cadmium and
21 some of the heavy metals, I think -- I mean, I
22 think we maybe let them play -- well, I think -- I
23 think, yeah. I don't -- I don't remember the exact
24 timeline, but, yeah.
25 Q. And how often would you say they play outside?

Page 70
1 Mercury --
2 A. Yeah.
3 Q. -- article that you read in the news?
4 A. Yes.
5 Q. What are your sources of news?
6 A. I think probably The Oregonian. There was -- there
7 was even a New York Times article. I don't recall
8 exactly what -- what source, but I think I
9 definitely read some stuff on -- I think
10 periodicals like the Willamette Week and, you know,
11 just local, local news sources for most of it.
12 Q. Did you do any independent research other than
13 reading the newspapers or other news sources?
14 A. I read -- I would read stuff on -- from links from
15 like Facebook.
16 Q. Do you recall any -- where any of those links led
17 to?
18 A. You mean the sources, the news sources?
19 Q. The sources.
20 A. No, I don't -- I don't recall exactly, no.
21 Q. Did you read any information specific to the issue
22 of gardening or eating fruit from your yard?
23 A. Yes. There was -- there was -- I think it was
24 pretty widely warned to -- to not eat -- eat stuff
25 that was -- if you were in -- if you are in close

Page 93
1 Q. Okay. Do you know what the purpose of the march
2 was?
3 A. To get Bullseye to start putting filters on their
4 smoke -- on their stacks.
5 Q. Okay. Any other purposes?
6 A. I'm sure that -- I'm sure there was other ones. I
7 wasn't -- I -- that was -- I think that was the
8 main one.
9 Q. Did you attend both the rally in Powell Park and
10 the march?
11 A. Yeah. I had -- I had one of my children with me,
12 so I -- as much as I could, you know, be in that
13 kind of a, you know, atmosphere with a small child.
14 I think I -- I think -- yeah, I think it was Remy
15 and he was small, so, yeah.
16 Q. This would have been about a year ago?
17 A. Yeah.
18 Q. So was Remy about a year-and-a-half old?
19 A. Exactly. I think I was probably even wearing him
20 using a little, you know, child carrier.
21 Q. Did Libby also attend this rally and march?
22 A. I don't think so.
23 Q. Okay. Do you know if Drexler attended?
24 A. I can't remember. I can't.
25 Q. Okay.

Page 98
1 now, at the very least, that.
2 Q. Why have you sued Bullseye Glass Company?
3 A. Well, I am not personally, but, I mean, I'm part of
4 the -- I think to -- so to make sure that this gets
5 addressed and it doesn't keep continuing to happen.
6 Q. "This gets addressed." What are you referring to?
7 A. The -- the air pollution.
8 Q. Are there any other reasons that you are suing
9 Bullseye Glass as a class member?
10 MR. PREUSCH: Objection. Misstates his status
11 in this case.
12 Q. BY MS. JACOBS: As a member of the putative class.
13 MR. PREUSCH: The same objection.
14 Q. BY MS. JACOBS: You can answer if you understand.
15 A. Sorry. Repeat that question, please.
16 Q. Are there any other reasons that you have decided
17 to serve as a class representative in this action
18 against Bullseye Glass Company?
19 A. That's it. I mean, just basically I just felt
20 compelled to because we live there and we have kids
21 and I wouldn't -- I would want to make sure that,
22 you know, people especially with kids or otherwise,
23 you know, can live in a place they don't have to
24 worry about getting poisoned.
25 Q. What do you hope to recover in this lawsuit?

Page 103
1 Q. BY MS. JACOBS: I think I asked you to tell me
2 about it.
3 A. Yeah.
4 Q. What were the results of that testing?
5 A. Gosh, it was -- I don't -- I think it was a little
6 bit -- I think it was high for cadmium, I want to
7 say, but I don't remember. Libby got the results
8 of that one, so she has a better -- better
9 recollection of that.
10 Q. Did you take any steps after receiving the results
11 to address them in your backyard?
12 A. Well, that's -- that's when we definitely kept the
13 kids out of the -- the yard.
14 Q. Did you do anything else in your yard?
15 A. No. We were just kind of -- until we were getting
16 things figured out, we were just kind of not
17 going -- you know, just kind of put it -- activity
18 out there to a halt until we could make sense of
19 what -- what all was happening.
20 Q. And I think you testified earlier to the fact that
21 for two or three months you kept the children from
22 going out in the yard?
23 A. Yeah, something like -- something like that.
24 Q.
25
Beovich Walter & Friend Exhibit 13

Page 65
Page 110
1 Q. And have you emailed with Mr. Anuta?
2 A. No.
3 Q. Have you spoken with any of the other named class
4 representatives in this lawsuit?
5 A. Not to my knowledge.
6 Q. Do you have reason to believe that you maybe spoke
7 with one of them at some point?
8 A. I mean, maybe I talked to somebody like in the
9 neighborhood. I don't think so. You know, I'm
10 sure we would have discovered that we're both
11 plaintiffs, so -- so, yeah, so, no.
12 Q. Do you understand that you have a fiduciary
13 obligation as a class representative to the class?
14 A. Can you say that a different way?
15 Q. Do you understand -- well, no.
16 Do you -- are you aware that you have a
17 fiduciary role as the class representative in this
18 lawsuit?
19 A. Yes.
20 Q. And what is that role?
21 A. Just make sure that people get -- get adequately
22 compensated.
23 Q. Since March 2016 when this lawsuit was first filed,
24 about how much time have you spent on the
25 litigation?

Page 111
1 A. Probably, you know, 30, 40 hours of, you know,
2 collecting all the, you know, over -- spread out
3 over, you know, days or weeks collecting all the
4 data and, you know, talking, contacting
5 Mr. Preusch.
6 MS. JACOBS: We're going to take a quick break.
7 Let's take two minutes and we will finish up.
8 (RECESS 12:25 to 12:29)
9 MS. JACOBS: Mr. Pasini, thank for you your
10 time today. I have no further questions.
11
12 EXAMINATION
13 BY MR. PREUSCH:
14 Q. Mr. Pasini, are there any answers you gave today
15 that you would like to correct?
16 A. Yes.
17 Q. And what's that?
18 A. The time my kids spent outside prior to 2016.
19 Q. Okay. And I believe when Ms. Jacobs asked you how
20 frequently your children would play in the yard in
21 the summer of 2015, you estimated about three or
22 four days a week.
23 Is that what you remember?
24 A. Yes.
25 Q. And is that what you want to correct?

Page 113
2
4 certify that RINO PASINI personally appeared before
5 me at the time and place mentioned in the caption
6 herein; that the witness was by me first duly sworn
7 on oath and examined upon oral interrogatories
8 propounded by counsel; that said examination
9 together with the testimony of said witness was
11 reduced to typewriting; and that the foregoing
15 witness and of all other proceedings had during the
16 taking of said deposition, and of the whole
20
21
22 Julie A. Walter
23 CSR No. 90-0173
24
25

Page 1


Plaintiffs,
Oregon corporation,
Defendant.
CONFIDENTIAL
VIDEOTAPED DEPOSITION OF CHRISTIAN MINER

March 10, 2017
CONFIDENTIAL
Miner, Christian March 10, 2017
Page 34
1 MR. PREUSCH: Christian, you can answer to the
2 extent you don't need to reveal privileged or work
3 product information. Other than that, answer the
4 question.
5 THE WITNESS: It is my belief that the study
6 done by the department of forestry, the moss study,
7 has diminished the value of my home.
8 Q. BY MS. JACOBS: How so?
9 A. There -- I believe there is a belief in Portland
10 that the neighborhood is quote, unquote, poisoned.
11 Q. Has anyone shared that belief with you?
12 A. I've heard people talk about it.
13 Q. Where have you heard people talk about it?
14 A. On buses, at -- at the community meetings that were
15 done subsequent to the moss study. I went to one
16 community meeting.
17 Q. Which community meeting did you go to?
18 A. It's the one -- I think it was the second one. It
19 was the one at Tubman Middle School.
20 Q. Did you go to any other community meetings?
21 A. No, I did not.
22 Q. And who conducted the meeting at Tubman Middle
23 School that you attended?
24 A. It was run by the Department of Environmental
25 Quality, Oregon Department of Environmental

Page 87
1 they said it was peer reviewed.
2 Q. Okay.
3 A. So when you peer review an article, you don't
4 have -- I mean, it takes the question of validity
5 out of the argument. It's valid.
6 Q. Because your peers reviewed it?
7 A. Yeah.
8 Q. Okay. Is there anything about the moss study that
9 you disagreed with?
10 A. No.
11 Q. What do you understand your role to be as a class
12 representative?
13 A. To look out for the interests of the class,
14 financial interest and health, health interest of
15 the class.
16 Q. Okay. Since March 2016, how much time have you
17 spent on this litigation?
18 A. I would say 100 to 150 hours.
19 Q. Have you reviewed other documents in this
20 litigation other than the complaint?
21 A. No.
22 Q. Do you understand that you have a fiduciary
23 obligation to members of the class if you are
24 appointed a class representative?
25 A. Yes.

Page 89
1 Is that right?
2 A. Correct.
3 Q. Did you have a garden at that other home in Ladd's
4 Addition?
5 A. I did.
6 Q. What did you have in the garden?
7 A. There were various types of berries. There were
8 onions and then there were different types of
9 peppermint, different types of mints that you would
10 turn into a tincture.
11 Q. Did you make the tinctures?
12 A. No. My roommate did.
13 Q. When you bought your home -- after you bought your
14 home and moved it into in August 2015, why didn't
15 you put in a garden that summer, at the end of
16 summer?
17 A. Well, when I -- when I bought my home and moved
18 into it, it was almost lined -- it lined up almost
19 on top of the tree moss study.
20 Q. Okay.
21 A. So I was there only a couple months before
22 this -- this -- the tree moss study results came
23 to -- came to light.
24 Q. When you bought your home and moved into it, did
25 you plan to put a garden in in 2016?

Page 90
1 A. Yes.
2 Q. And did you put at garden in in 2016?
3 A. No.
4 Q. Why not?
5 A. Much like the rest of the house, I stopped with all
6 the plans that I had because I believed that I was
7 throwing my time and money away, based on the
8 effects of the poisoning of the neighborhood.
9 Q. When you bought your house, moved in in August
10 2015, did you have expectations about other ways
11 you would use the outside of your property for
12 recreation?
13 A. Yes.
14 Q. What were those?
15 A. Those were hosting friends, barbecues, parties,
16 get-togethers, in my backyard.
17 Q. Since February 2016 have you done any of those
18 things?
19 A. No.
20 Q. Why not?
21 A. My friends think my house is poisoned.
22 Q. Okay. How do you know that?
23 A. They have told me.
24 Q. Okay. I think you testified earlier that you don't
25 have any present expenses for soil testing. Is

Page 94
2
4 certify that CHRISTIAN MINER personally appeared
18 Witness my hand at Portland, Oregon, this 23rd
20
21
22 Julie A. Walter
23 CSR No. 90-0173
24
25

Exhibit 4
&
F '
MV.
A.>fi
"Oregon Department of Environmental Quality
Northwest Region
700 NE Multnomah Street, Suite 600
Kate Brown, Governor Portland, OR 97232
(503) 229-5263
FAX (503) 229-6945
TTY711
CERTIFIED MAIL NO.: 7011 0470 0002 9571 2107
May 4, 2016
Bullseye Glass Co.

Attn: Eric E. Durrin
3722 SE 21st Ave
Portland, OR 97202
RE: Warning Letter with Opportunity to Correct

Bullseye Glass Co.
WL 20 1 6-WLOTC- 1 539
ACDP 26-3135-ST-01
Multnomah County
Dear Mr. Durrin:
On April 28 and 29, 2016 DEQ inspectors conducted visible emission observations of some
Bullseye Glass Co. furnace exhaust stacks. Inspectors observed visible emissions in excess of the
applicable limit of 20% (six minute average) from the exhaust stacks of furnaces 2 and 12. Other
furnace exhaust stacks were observed to have visible emissions that may exceed the applicable
limit but formal observations were not completed due to plume interference and stack angle from
inspectors.
Based on the visible emission observations of your facility's furnace exhaust stacks, DEQ has
concluded that Bullseye Glass Co. is responsible for the following violation of Oregon
environmental law:
VIOLATION:
(1) OAR 340-208-01 10 states "For sources, other than wood-fired boilers, installed,
constructed, or modified on or after June 1, 1970, no person may emit or allow to be
emitted any visible emissions that equal or exceed an average of 20 percent opacity";
Visible emissions using EPA method 9 were observed as 24% from furnace 2 and 28%
from furnace 12 based on a 6 minute block average.
BE00005845
This is a Class II violation of Oregon regulations. On April 15, 2015 DEQ adopted a
revised method for opacity observations, changing the evaluation time from 30 seconds
aggregate in one hour to 6 minute block average. This change is not yet reflected in the
existing Bullseye air quality permit, so the rule is being cited instead of the permit
condition. Visible emission observations also exceed what is allowed by the Bullseye air
quality permit condition 1.1.
Class I violations are the most serious violations; Class III violations are the least serious.
The Department is concerned that additional violations may have occurred or will occur, including
visible emissions in excess of the applicable limit from other furnace exhaust stacks. To ensure you
maintain compliance with air quality regulations, we recommend that you conduct formal visible
emissions observations from all furnace exhaust stacks during periods of time when the highest
opacity is expected.
Corrective Action(s) Requested
1) Develop a corrective action plan to limit visible emissions from all furnace exhaust stacks
below the applicable limit in OAR 340-208-0 1 1 0. The corrective action plan should include
specific milestone dates to determine the extent of opacity issues and to implement
corrective actions. Submit this corrective action plan to the Department for approval by
June 5, 2016.
Should this violation remain uncorrected or should you repeat this violation, this matter may be
referred to the Department's Office of Compliance and Enforcement for formal enforcement action,
including assessment of civil penalties and/or a Department order. Civil penalties can be assessed
for each day of violation.
If you believe any of the facts in this Warning Letter are in error, you may provide information to
me at the office at the address shown at the top of this letter. The Department will consider new
information you submit and take appropriate action.
The Department endeavors to assist you in your compliance efforts. Should you have any
questions about the content of this letter, please feel free to contact me in writing or by phone at
503-229-5053.
Sineerely^
David Kauth, P.E

Environmental Engineer
Cc: Office of Compliance and Enforcement, DEQ Headquarters
BE00005846
Exhibit 5
1 OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY
2 CEASE AND DESIST ORDER
3
)
)
4 IN THE MATTER OF: ) FINAL ORDER
)
5 BULLSEYE GLASS COMPANY, )
an Oregon corporation. )
6
)
7
WHEREAS:
8 1. The Department of Environmental Quality (DEQ) operates an air quality monitor
9 located at the CCLC daycare facility located at 2215 SE Gladstone Street in Portland, Oregon,
10 across the street from, and to the south of the Bullseye Glass Company facility at 3722 SE 21st
11 Ave in SE Portland (Bullseye).
12 2. Air monitoring data collected from this monitor on May 9, 2016 through May
13 10th, 2016 and analyzed on May 18, 2016 by DEQ registered lead air pollutants at 416 nanograms
14 per cubic meter over a 24 hour period.
15 3. DEQ has reviewed Bullseye' s operational information for the timeframe of this
16 monitoring event and confirmed that Bullseye manufactured glass that contained a relatively high
17 proportion of lead in its feedstock, and that the pollution control device connected to the furnace
18 being used for that batch was not in service due to suspected malfunctions.
19 4. The average hourly wind direction on that day was from the north/northwest as
20 confirmed by DEQ monitoring equipment in the vicinity.
21 5. Based on this information, DEQ concludes that Bullseye was the source of the
22 elevated concentrations of lead in air detected by DEQ's monitor. There is currently no
23 regulation or requirement that Bullseye use lead solely in controlled furnaces.
24 6. The current national ambient air quality standard for lead is 150 nanograms per
25 cubic meter.
26 III
27 III
Page 1 of 3
BE00002336
1 7. DEQ monitoring data from October 2015 showed levels of cadmium and arsenic
2 at 50 and 150 times the ambient benchmark concentration for those metals respectively. These
3 emissions were from furnaces without emission control devices.
4 8. DEQ has consulted with the Oregon Health Authority (OHA). The OHA has
5 determined that lead is a potent and well known neurotoxicant that can permanently decrease the
6 IQ of exposed children at the levels measured. As discussed in the attached supporting memo
7 from OHA and DEQ to the Governor, the repeated elevated emissions of metal hazardous air
8 pollutants (HAPs) above safe ambient benchmark concentrations create an imminent and
9 substantial endangerment to the health of persons.
10 CONCLUSION:
11 9. DEQ concludes that Bullseye's use of metal HAPs in uncontrolled furnaces
12 presents and imminent and substantial endangerment to the health of persons. DEQ shared this
13 conclusion with the Governor.
14 GOVERNOR'S ORDER:
15 10. On May 19, 2016, Oregon Governor Kate Brown, pursuant to ORS 468. 1 15(1),
16 directed DEQ to issue an order to the responsible party to cease and desist the action causing the
17 pollution causing the imminent and substantial endangerment to the health of persons.
18 DEQ ORDER:
19 11. Pursuant to ORS 468. 115, effective immediately and for the next ten days, DEQ
20 orders Bullseye to cease and desist from use of the following metal HAPs in any furnace at the
21 Bullseye facility without a DEQ-approved emissions baghouse control device which is operating
22 in a manner that properly controls metals as it is designed to do:
23 A. Arsenic
24 B. Cadmium
25 C. Chromium
26 D. Cobalt
27 E. Lead
Page 2 of 3
BE00002337
1 F. Manganese
2 G. Nickel
3 H. Selenium
5 FINAL ORDER
6 IT IS SO ORDERED:
DEPARTMENT OF ENVIRONMENTAL QUALITY

8
9
May 19, 2016 /s/ Pete Shepherd
10 Date Pete Shepherd, Director
Department of Environmental Quality
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Page 3 of 3
BE00002338
Exhibit 6
Bullseye Glass PM10 Modeling
H. Andrew Gray
Gray Sky Solutions
San Rafael, CA
November 16, 2017

CONTENTS
I. INTRODUCTION .……........................................……………………............ 1
A. Scope of Work ……..............................………………………................... 1
B. Methodology ……...............................………………………..................... 1
C. Conclusions ………..............................………………………................... 1
D. Qualifications ……...............................…………………….…................... 2
E. Compensation ……...............................………………………................... 2
F. Supporting Documentation ……..........………………………................... 2
II. BULLSEYE GLASS FACILITY ……………………………………………..… 4
III. MODEL APPLICATION ………..……………………………………………... 5
A. Model Selection …………………..…………………………………………... 5
B. Source Data ……………………….…………………………………………... 6
C. Building Downwash …………………………………………...…................. 12
D. Receptor Data ……………………………………………………….……....... 14
E. Meteorological Data ………………………….....…………………..……….. 15
F. Modeling Options …………………………......……..………………...…….. 17
IV. MODEL RESULTS ….………………………......……………………….…...... 17
V. SUMMARY AND CONCLUSIONS ………….………………………….……... 21
APPENDIX A. Materials Considered (Bibliography) ………..……….…….... 22
FIGURES
Figure 1. Modeled long-term PM10 concentrations exceeding 0.2 µg/m3,
colored glass furnaces ........………......…..……………………………. 2
Figure 2. Location of Bullseye Glass facility in Portland, Oregon …...…. 4
Figure 3. Location of emission points (stacks) …………………………….. 7
Figure 4. Building tiers used for downwash modeling ……………………. 13
Figure 5. AERMOD modeling domain (4 km x 4 km) ………………………. 15
Figure 6. Modeled long-term PM10 concentrations (µg/m3),
colored glass furnaces ….......………......………………………………. 18
colored glass furnaces …..........……......………………………………. 19
colored glass furnaces …........………......………………..……………. 20
TABLES
Table 1. Modeled Stack Parameters …………………………………..……… 8
Table 2. Bullseye Annual Production
and Bullseye’s Estimated PM10 Emissions .….………………………. 9
Table 3. Modeled “Actual” PM10 Emission Rates .……………….…………. 12
Table 4. Building Profiles Used for Building Downwash Calculations …. 14
I. INTRODUCTION
A. Scope of Work
I have been retained by counsel for the plaintiffs in Meeker, et al. v. Bullseye
Glass Co. (Case No. 16-CV-07002) to address, from the perspective of an atmospheric
scientist, the issue of whether exhaust from the Bullseye facility has substantially
contributed to elevated levels of air pollution in the neighborhoods surrounding the
facility. I understand that the Bullseye facility has been operating at its Portland location
for approximately forty years, and that measurements taken in the neighborhoods
surrounding the Bullseye facility prior to the recent installation of a baghouse control
system have shown evidence of high levels of toxic metals in the ambient air.
I address in this report the question of whether exhaust from the Bullseye plant
substantially contributed to the detected elevated levels of airborne pollution, and if so,
to quantify the amount of that contribution. In addition, based on the results of my
atmospheric dispersion modeling simulations, I mapped the boundary of the area in
which Bullseye’s contribution to ambient particulate matter pollution was most
significant.
B. Methodology
Based upon my education and professional experience as an atmospheric
scientist, I conducted an air dispersion modeling analysis to determine the air quality
impacts in the surrounding neighborhoods due to Bullseye’s operations. I compiled the
necessary information to describe the plant’s emissions of particulate matter (PM) from
each of its twenty furnaces before the installation of a baghouse control system in 2016.
I used this information as input to the AERMOD dispersion model which simulated the
dispersion of Bullseye’s exhaust into the surrounding community for every hour during
the six-year period, calendar years 2010 to 2015.
C. Conclusions
Based on the emission data and modeling analysis that I conducted, I conclude
that emissions from the Bullseye facility did, in fact, substantially contribute to elevated
levels of PM in the ambient air over a large area surrounding the facility. The model
estimates that the long-term average PM concentration was increased by at least 0.2
µg/m3 due to Bullseye’s emissions (colored glass furnaces only) in an area surrounding
the facility that exceeds 3 square kilometers. The area in which Bullseye’s contribution
1
to long-term average PM10 concentrations1 was predicted to exceed 0.2 µg/m3 is shown
in Figure 1, below.2

colored glass furnaces
D. Qualifications
I am an environmental engineer and atmospheric scientist with 39 years of
professional experience performing air quality dispersion modeling and related
analyses. I received my Bachelor of Science (BS) in civil engineering / engineering and
public policy from Carnegie-Mellon University in 1979. I earned a Master of Science
(MS) and a Ph.D. in environmental engineering science from the California Institute of
1
PM10 refers to particles that are smaller than 10 microns in diameter.
2
The location of the Bullseye facility is shown in the center of Figure 1 as a red *.
2
Technology (Caltech), with a minor emphasis in numerical methods. My doctoral thesis,
on the control of atmospheric carbon particles in the Los Angeles region, includes a
number of analyses that have been relied upon and cited repeatedly by atmospheric
modelers, researchers, and government planners during the last thirty years.
I have developed, evaluated, and applied air pollution dispersion models in
academic, regulatory and consulting environments. I developed and applied the
methodologies for assessing particulate matter and visibility that were used by the
South Coast Air Quality Management District (Southern California) for their air quality
management plans during the 1980s and 1990s. I managed a team of researchers that
evaluated the MESOPUFF model (the precursor to CALPUFF) for the US Interagency
Workgroup on Air Quality Modeling (IWAQM).
As a consultant, I have modeled the air quality impacts of thousands of emission
sources, using a variety of air quality models (including AERMOD, CALPUFF, CAMx,
CMB, etc.) for various clients, including industry (e.g., diesel engine manufacturers and
the off-shore container shipping industry), government (e.g., US EPA and US Dept. of
Justice), and environmental organizations (including Sierra Club and National Parks
Conservancy Association).
I have authored hundreds of technical reports, many of which have been
published in peer-reviewed journals and symposia. I have provided expert testimony
regarding air dispersion modeling analyses at numerous hearings, depositions, and at
trial. In April 2014, I was invited by the Royal Institute of International Affairs to
participate in the “Balancing Global Energy Policy Objectives: A High-Level Roundtable”
meeting.
I have expertise in air quality monitoring, statistical analyses, atmospheric
chemistry, meteorology, particle processes, atmospheric transport and deposition,
numerical methods, computer modeling, air quality control strategy design, and
environmental public policy. An integral part of my research has involved developing,
applying, and evaluating computer modeling tools to determine the air quality impacts of
emission sources in the areas surrounding those sources. My experience and
qualifications are described in detail in the attached resume (Attachment A).
E. Compensation
I am compensated for my work on this engagement at a rate of $160 per hour.
The opinions I render in this matter are not contingent upon my compensation.
F. Supporting Documentation
I relied on various documents and data in the process of performing my analysis
and reaching my opinions in this matter, including facility maps, spreadsheets, source
3
test reports, Bullseye and Bullseye contractor staff memoranda, and other documents
that characterize the Bullseye facility and its operation, including its furnaces and
smokestacks. Land use and topographic data were obtained from the US Geological
Survey (USGS), and meteorological data were obtained from the National Oceanic and
Atmospheric Administration (NOAA). I also consulted US EPA modeling guidelines and
user’s guides for the AERMOD model and its associated preprocessing programs. A
list of the specific materials that I relied upon in preparing the analysis, opinions, and
findings set forth in this report can be found in Appendix A.
II. BULLSEYE GLASS FACILITY

The Bullseye Glass Co. operates a glass production facility in Portland Oregon,
located between SE 22nd Ave. and SE 21st Ave. (to the east and west, respectively),
and between SE Lafayette St. and SE Bush St. (to the north and south, respectively), as
shown in Figure 2, below.
Figure 2. Location of Bullseye Glass facility in Portland, Oregon
The Bullseye Glass facility includes twenty high temperature furnaces that are
used to melt glass. Prior to the installation of a baghouse control system in 2016, each
4
of the twenty furnaces had its own exhaust flue (smokestack) located on the roof of the
Bullseye facility.
Recent air monitoring3,4 and a tree moss study conducted by the US Forest
Service5,6 have shown elevated levels of toxic PM10 metals7 in the vicinity of the
Bullseye Glass facility. Exhaust from the Bullseye furnaces that melt colored glass have
contained the same toxic metals, or hazardous air pollutants (HAPs), such as arsenic
and cadmium.8
I used a computer model to simulate the dispersion of particles that were
exhausted from each of the Bullseye furnaces from 2010 through 2015 inclusive,
corresponding to the six-year period before installation of the baghouse control system.
The objective of the modeling was to determine the impacts to the surrounding
community’s air quality due to Bullseye’s operations. The air quality impact was
measured as the increase in long-term average ambient PM10 concentrations9 due to
Bullseye’s emissions.
III. MODEL APPLICATION

A. Model Selection
The AERMOD air quality model was used to determine the increase in ambient
PM10 concentrations in the area surrounding the Bullseye Glass facility due to emissions
from the Bullseye Glass facility. AERMOD10,11,12 is a steady-state plume model that
3
Bullseye Area-wide Air Sampling and Analysis Plan, State of Oregon Department of Environmental
Quality (DEQ), February 24, 2016.
4
Oregon Department of Environmental Quality, Air Quality Data in the air near Powell and SE 22nd Ave in
Portland (Exhibit 44), and Air Quality Monitoring Results SE Powell and SE 22nd Ave (Exhibit 45), March
10, 2017.
5
(1) F. Zarkhin, “Portland's toxic hotspots discovered as an after-thought”, The Oregonian, February 20,
2016 (http://www.oregonlive.com/environment/index.ssf/2016/02/portlands_toxic_hotspots_disco.html),
and (2) R. Davis, “New maps show heavy metal hot spots in two more Portland neighborhoods”, The
Oregonian, February 17, 2016.
(http://www.oregonlive.com/environment/index.ssf/2016/02/new_maps_show_heavy_metal_hot.html)
6
Donovan, G.H. et al., Using an epiphytic moss to identify previously unknown sources of atmospheric
cadmium pollution, Science of the Total Environment, 559, 84-93 (2016).
7
PM10 refers to particles that are smaller than 10 microns in diameter. PM refers to Particulate Matter.
8
Donovan et al. (footnote 6) concluded that Bullseye Glass was the likely source of the observed
elevated levels of arsenic and cadmium.
9
The ambient PM10 concentration (µg/m3) equals the mass of particles (smaller than 10 microns in
diameter) in the air near ground level divided by the volume of air.
10
U.S. Environmental Protection Agency. AERMOD: Description of Model Formulation. EPA-454/R-03-
004. U.S. Environmental Protection Agency, Research Triangle Park, NC 27711. September 2004.
11
U.S. Environmental Protection Agency. Addendum: User’s Guide for the AMS/EPA Regulatory Model
– AERMOD. EPA-454/B-03-001. U.S. Environmental Protection Agency, Research Triangle Park, NC
27711, March 2011.
12
U.S. Environmental Protection Agency. User’s Guide for the AMS/EPA Regulatory Model – AERMOD.
EPA-454/B-16-011. U.S. Environmental Protection Agency, Research Triangle Park, NC 27711.
December 2016.
5
considers atmospheric dispersion based on the planetary boundary layer turbulence
structure and scaling concepts. AERMOD has been adopted by the US Environmental
Protection Agency (EPA) in Appendix W to its Guideline on Air Quality Models13 as the
preferred near-field dispersion model for regulatory assessments of industrial point
sources, including determinations of compliance with the National Ambient Air Quality
Standards (NAAQS) and evaluations of proposed new emission sources.
In addition to the AERMOD dispersion module, the AERMOD modeling system
includes AERMET, a meteorological data preprocessor, and AERMAP, a terrain data
preprocessor for treatment of complex terrain. The protocol that I used for this modeling
analysis follows the guidance for AERMOD application established in US EPA’s
modeling guidelines14 and the AERMOD implementation guide.15
This report describes the modeling exercise that I conducted using the AERMOD
model to evaluate the impact of emissions from the Bullseye Glass facility on ambient
PM10 concentrations in the area surrounding the facility. The necessary input data
including source characteristics, building downwash information, receptor and
meteorological data, and modeling options are described below, followed by a summary
of the model results.
B. Source Data
Source information required by the AERMOD model includes the location of each
emission release point (stack), the height (above ground) of release, stack diameter,
exhaust temperature, exit velocity16, and pollutant emission rates17. Many of these data
requirements were satisfied using information collected from the facility operators.18
The modeled facility corresponds to the configuration before the installation of a
baghouse control system (which began with the installation of a pilot baghouse in March
201619).
Prior to the baghouse installation, each of the twenty furnaces had its own
emission stack located on the roof of the Bullseye facility, as shown in Figure 3, below.
The location (UTM coordinates20) and elevation (height above ground) of each stack
13
U.S. Environmental Protection Agency. Guideline on Air Quality Models, 40 CFR Part 51, Appendix W.
Published in the Federal Register, Vol. 70, No. 216, November 9, 2005.
14
Ibid.
15
U.S. Environmental Protection Agency. AERMOD Implementation Guide. U.S. Environmental
Protection Agency, Research Triangle Park, NC 27711. 2009.
http://www.epa.gov/ttn/scram/7thconf/aermod/aermod_implmtn_guide_19March2009.pdf
16
“Exit velocity” is the speed (m/s) at which the exhaust gas leaves the flue (stack).
17
“Pollutant emission rate” is the mass of pollutant (PM10) released into the atmosphere per unit time
(lb/hr).
18
Survey responses from Bullseye (spreadsheet file:BE00005380.xlsx).
19
Press Release: Bullseye Factory Filtration is Underway, Bullseye Glass Company, Portland, Oregon,
dated March 29, 2016. http://www.bullseyeglass.com/news/bullseye-factory-filtration-is-underway.html
20
UTM (Universal Transverse Mercator) coordinates (meters) are located in UTM Zone 10T.
6
was determined using facility maps21 and Google Earth. The height (above roof) for
each stack was provided in the Bullseye facility survey data. I estimated the base
(ground) elevation of the Bullseye Glass facility to be approximately 57 feet using
Google Earth. I then computed the modeled stack heights (as shown in Table 1, below)
as the height of the stack above the roof added to the roof elevation, minus the base
elevation.
Figure 3. Location of emission points (stacks)22
The stack diameter was specified for each of the twenty release points in the
facility survey data. The diameter of all stacks was indicated to be ,
with the exception of the stacks for furnaces
, as shown in Table 1.
I estimated the exit velocities for each stack based on the volumetric flow rate23
and the diameter of each stack. Flow rates were conservatively assumed to be 900
acfm24 for the smaller diameter stacks, and 1200 acfm for the three larger diameter
21
Bullseye Facility Maps (files BE00005238 and BE00005241).
22
The TEK-15 and TEK-16 furnace stacks are labeled T-15 and T-16, respectively, in Figure 2.
23
“Volumetric flow rate” is the volume of fluid that is exhausted per unit time (m3/s).
24
ACFM: Actual Cubic Feet per Minute (volumetric flow rate independent of exhaust gas density)
7
stacks.25 Exhaust temperatures for all stacks were conservatively assumed to be
175F.26 The high exit velocities and temperatures used by the AERMOD model will
overestimate the overall plume rise27 for these low-volume Bullseye furnaces, leading to
slightly lower modeled concentrations. The use of the modeled exit velocities and
temperatures can therefore be considered a conservative modeling approach.28
25
Memoranda regarding baghouse requirements (files: AIR_CLEAN_00001517, AIR_CLEAN_00001551,
and AIR_CLEAN_00003235) and deposition testimony (K. Barker, 11/3/16) indicate that flow rates were
less than 900 acfm for the 8 inch diameter stacks (baghouses were recommended for five furnaces
grouped together to exhaust through a 2,500 acfm baghouse system). Flow rates for similar equipment
(file: UroburosConfidential000010.pdf) ranged from about 1100 to 1300 acfm for the 12 inch diameter
stacks. The average measured volumetric flow rate for a single Bullseye colored glass tank furnace
ranged from 475 to 538 acfm during three 16-hour source tests (file: MON000000031.pdf).
26
The average temperature at the baghouse inlet during three 16-hour source tests was 163F. In
addition, memoranda regarding baghouse requirements (file: AIR_CLEAN_0001517) indicate that the
temperature measured at the baghouse inlet was 150F, and “never exceeded 175 in the two weeks prior.”
27
Plume rise is defined as the height in the atmosphere to which a buoyant plume will rise.
28
For example, sensitivity AERMOD runs with a ten percent decrease in modeled flow rates for the 8 inch
stacks (which also results in a ten percent reduction in exit velocity) resulted in a 2 percent increase in the
area surrounding the Bullseye facility in which modeled PM10 concentrations exceeded 0.2 µg/m3.
29
Data in Table 1 were obtained from Bullseye spreadsheet (file:BE00005380.xlsx) and Google Earth.
8
The annual glass production and Bullseye’s estimated PM10 emissions for all
twenty furnaces are shown in Table 2 for the years 2010 to 2015, inclusive. The six-
year average PM10 emission rate was estimated by Bullseye to be 4,326 lb/year, as
shown in Table 2.
Table 2. Bullseye Annual Production and Bullseye’s Estimated PM10 Emissions30

Year Glass Melted PM10 Emissions
(tons) (lb)
2010 2,292 4,355
2011 2,234 4,244
2012 2,347 4,459
2013 2,251 4,277
2014 2,372 4,507
2015 2,165 4,114
Average,
2010-2015 2,277 4,326
Bullseye’s inappropriate use of a “textbook” emission factor has resulted in a

significant underestimation of the PM emission levels from the Bullseye facility.
Bullseye estimated the PM10 emissions associated with glass melting in its
furnaces using an emission factor of 1.9 lb /ton.31 The US EPA maintains a database of
emission factors (AP-4232), that relate the quantity (mass) of pollutant emissions to the
level of activity associated with various industrial (and other) activities, including glass
manufacturing. The uncontrolled total PM emission rate for melting furnaces during the
manufacturing of flat glass, as listed in AP-42, ranges from 0.8 lb/ton to 3.2 lb/ton, with
an average rate of 2.0 lb/ton, approximately 90 percent of which is less than 10 microns
in diameter, resulting in an average PM10 emission factor of 1.9 lb/ton.33
EPA’s AP-42 includes source test results for three categories of glass
manufacturing: glass containers, flat glass, and pressed and blown glass. The AP-42
PM emission factor for flat glass manufacturing (2.0 lb/ton) was developed from a single
EPA source test report published in 1976,34 which included source tests of 5 glass
30
Data in Table 2 are from the Annual Reports for Contaminant Discharge Permit Number 26-3135,
Bullseye Glass Company (2010-2015). I computed the 6-year averages shown in the table.
31
Standard Air Contaminant Discharge Permit, Permit Number 26-3135-ST-01, Oregon Department of
Environmental Quality. 2011.
32
U.S. Environmental Protection Agency. AP-42: Fifth Edition Compilation of Air Pollutant Emission
Factors, Volume 1: Stationary Point and Area Sources. U.S. Environmental Protection Agency, Research
Triangle Park, NC 27711. January 1995.
33
AP-42, Section 11-15, Glass Manufacturing (Tables 11.15-1 and 11.15-3).
34
Reznik, R.B., Source Assessment: Flat Glass Manufacturing Plants, EPA-600/20-76-032b, U.S.
Environmental Protection Agency, Cincinnati, OH, March 1976.
9
furnaces. Subsequent source testing by the EPA35 identified a PM emission rate for
furnaces used in the production of flat glass that was more than twice the AP-42
emission rate.36
As part of EPA’s summary of glass manufacturing emissions,37 it is indicated that
the flat glass industry (SIC-321138) includes large scale glass manufacturers of clear
glass, such as PPG industries, and Ford Motor Co. The major products of the flat glass
industry are window glass, plate and float glass, rolled and wired glass, tempered glass,
and laminated glass, the majority of which is used in the housing and automotive
industries.
The flat glass manufacturing category in AP-42 may not be representative of the
glass manufacturing process at the Bullseye facility. Bullseye manufactures colored art
glass in relatively small batches, whereas the industrial flat glass furnaces that were
used for source testing (in AP-42 and subsequent EPA source tests) had process rates
that were significantly higher.39 The pressed and blown glass category, which includes
a wide range of glass making operations (including art glass production), and therefore
also a wide range of emission factors, may in fact be more representative of the furnace
operations at the Bullseye facility. 40
As described above, Bullseye is likely using the inappropriate AP-42 category to
represent the glass production operations that occur at the Bullseye facility. However,
AP-42 emission factors should NOT be used at all if dependable source test data are
available, either collected at the source to be evaluated, or from a similar
(representative) operation.
The EPA cautions users of AP-42 that its “emission factors may be appropriate to
use [for] … making source-specific emission estimates for area-wide inventories,”
however the AP-42 emission factors may not be suitable for characterizing an individual
source. When evaluating emissions from an individual source, source-specific data
should be sought. As stated in AP-42, “source-specific tests or continuous emission
monitors can determine the actual pollutant contribution from an existing source better
35
Spinosa, E.D., et al., Summary Report on Emissions from the Glass Manufacturing Industry, EPA-
600/2-79-101, U.S. Environmental Protection Agency, Cincinnati, OH, April 1979.
36
Test results on a large industrial furnace used for flat glass manufacturing operating at a process rate
of 17.5 tons/hr resulted in a total PM emissions rate of 88.2 lb/hr; the resulting emission factor was 5.0
lb/ton. See Spinosa, et al, 1979 (footnote 35), Table 11, pg 28.
37
Spinosa, et al, 1979. See footnote 35.
38
SIC refers to the 4-digit Standard Industrial Classification (SIC) code.
39
For example, the process rate for the flat glass furnace source test conducted in Spinosa et al. (1979)
(see footnote 35) was 17.5 tons/hr. Bullseye’s production rate during 2010-2016 averaged 2,277 tons/yr,
or 0.26 tons/hr, for all 20 Bullseye furnaces combined.
40
According to Spinosa, et al., (1979, see pg 10), the pressed and blown glass industry (SIC-3229)
consists of every category of glass or glassware other than flat glass and container glass, including
industrial establishments engaged in manufacturing a wide variety of types of glass and glassware, such
as “machine-made and handmade table, kitchen, and art-ware glass products” The AP-42 emission
factor for pressed and blown glass has a much larger range than for flat glass, ranging from 1.0 lb/ton to
25.1 lb/ton, with an average of 17.4 lb/ton.
10
than can [AP-42] emission factors.”41 EPA insists that their AP-42 emission factors
should only be used “as a last resort” (when neither representative source-specific data
nor test data from similar equipment can be obtained). EPA states that, “whenever [AP-
42] factors are used, one should be aware of their limitations in accurately representing
a particular facility…”
The AP-42 emission factor for flat glass is not appropriate for use in estimating
the PM emissions from Bullseye’s art glass facility. Although Bullseye is melting and
preparing flat glass, there is direct evidence that the actual PM emission rate for the
Bullseye furnaces is significantly higher than Bullseye’s estimates (using the 2.0 lb/ton
PM emission factor). Larger than expected quantities of PM have been observed to
regularly deposit on the walls of the recently installed baghouse.42 In addition, the
measured PM emissions at the inlet to the baghouse during three recent source tests
conducted by Horizon Engineering averaged 8.56 lb/ton.43 Assuming the same
PM10/PM ratio (0.95) that Bullseye used in their estimations of annual PM10 emissions
(which matches the PM size distribution data in AP-42), the PM10 emission factor
resulting from the source tests was 8.1 lb/ton.
I used the results of the Horizon Engineering source tests, which were conducted
at Bullseye’s request, to estimate the “actual” PM10 emissions from the Bullseye facility.
Using the emission factor from the recent source tests (8.1 lb/ton), the average annual
PM10 emissions rate for the entire Bullseye facility is estimated to be 18,442 lb/yr (=
2,277 tons/yr * 8.1 lb/ton). This revised emission rate is over four times higher than the
emission rate that was assumed by Bullseye.
I allocated the facility-wide modeled PM10 emissions to the 20 individual furnaces
based on the glass production level for each furnace in 2015.44 The Bullseye facility
survey results indicated that
. Colored glass was only melted in the other 18
furnaces. The modeled “actual” PM10 emission rate for each Bullseye furnace is shown
in Table 3, below, including totals for the
.
41
AP-42 (see footnote 32), Introduction, pg 3.
42
Memoranda regarding the processing of baghouse material (file: Baghouse Cleanout Estimates -
BE00009578-BE00009579.pdf) and deposition testimony (E. Durrin, 1/25/17) indicate that up to 250 lb of
PM were collected in the baghouse from the furnaces each week. Assuming an annual glass production
rate of 2,277 tons (43.8 tons/week), the PM emissions factor (lb PM per ton of glass melted) would have
to have been at least 5.7 lb/ton.
43
Three 16-hour sources tests were conducted by Horizon Engineering in April 2016 (as part of the
design and installation of Bullseye’s baghouse control system) using a single Bullseye colored glass tank
furnace (file: MON000000031.pdf). The total PM emissions rate averaged 0.297 lb/hr; the glass
production level during each source test was 1,112 lb of glass (69.5 lb/hr = 0.0348 tons/hr). The resulting
average PM emissions per ton glass melted was 8.56 lb/ton (see “PM Emissions, Production Basis” in the
table on page 26 of file: MON000000031.pdf).
44
The Bullseye survey data (file: BE00005380)
11
C. Building Downwash
Nearby structures can affect the air flow patterns governing the transport of
pollutants away from their release points. Recirculating flow patterns behind buildings,
relative to the mean wind direction, will cause plumes to downwash slightly towards the
ground. The AERMOD model includes algorithms for modeling the effects of building
downwash on the emissions from adjacent or nearby emission stacks.45 Building
downwash parameters are required in situations in which the surrounding structures are
close enough to the emission release points (stacks) to affect the horizontal and vertical
45
For a technical description of the building downwash algorithms in AERMOD, see Schulman, et. al.,
Development and Evaluation of the PRIME Plume Rise and Building Downwash Model, Journal of the Air
& Waste Management Association, 50:3, 378-390. 2000.
12
dispersion of the exiting plumes. A computer program exists (BPIPPRM46) for
determining the required plume downwash parameters (direction-specific building
heights, widths, and lengths, and along-flow and across-flow distances to nearby
buildings) for input to AERMOD.
The BPIPPRM program requires specification of the dimensions of the nearby
structures (locations of roof corners/edges, roof heights, tiers and tier heights) and each
of the furnace stack heights. For this purpose, I modeled the Bullseye facility as six
adjacent structures, each with multiple tiers, as shown in Figure 4, below.47 Table 4
displays the roof tier heights that were input to the BPIPPRM program.48
Figure 4. Building tiers used for downwash modeling
46
U.S. Environmental Protection Agency. User’s Guide to the Building Profile Input Program. EPA-
454/R-93-038. U.S. Environmental Protection Agency, Research Triangle Park, NC 27711. 2004.
http://www.epa.gov/ttn/scram/models/relat/bpipprime.zip
47
(see
Figure 3).
48
The nearby buildings to the southeast and west of the Bullseye facility were also evaluated using the
BPIPPRM program, however it was determined that the resulting dispersion parameters were not affected
by these structures.
13
Table 4. Building Profiles Used for Building Downwash Calculations
Building Tier Tier Height (m)
1 1.1 6.4
1.2 7.3
1.3 9.1
2 2.1 6.1
2.2 6.4
2.3 6.7
3 3.1 6.4
3.2 6.7
4 4.1 5.5
4.2 6.4
4.3 6.7
5 5.1 11.6
6 6.1 5.2
6.2 8.7
6.3 8.8
D. Receptor Data
The AERMOD model is designed to estimate pollutant concentrations at a
specified set of locations within the modeling domain, which are referred to as the
modeled “receptors”. For the current AERMOD application, I defined a set of gridded
modeled receptors on a 4 km x 4 km grid surrounding the Bullseye source using 50 m
grid spacing, accounting for 6,561 virtual receptors (81 E/W x 81 N/S). The modeling
domain is shown in Figure 5, below. Receptor elevations were determined using the
AERMAP program (v11103), for which the 1/3 arc-second National Elevation Dataset
(NED) data49 were input.
49
Multi-Resolution Land Characteristics Consortium (MRLC). https://www.mrlc.gov/
14
Figure 5. AERMOD modeling domain (4 km x 4 km)
E. Meteorological Data
I assembled meteorological data for 2010-2015 for input to the AERMOD
model.50 The model requires continuous records of surface and upper air
meteorological data (including wind speeds and directions, temperatures, ambient air
pressures, etc.). These data were obtained from airport measurements. The surface
data included (1) hourly Integrated Surface Data (ISD) from the Portland International
Airport (PDX),51 located about 10 km NNE of the Bullseye facility, and (2) 1-minute
50
The modeled period 2010-2015 corresponds to the six years prior to the installation of baghouse
controls at the Bullseye facility.
51
National Climatic Data Center, Integrated Surface Data (ISD) for PDX (WBAN: 24229) 2010-2015,
National Oceanic and Atmospheric Administration (NOAA).
ftp://ftp.ncdc.noaa.gov/pub/data/noaa/readme.txt
15
Automated Surface Observing System (ASOS) wind data from PDX.52 The upper air
data consisted of morning radiosonde measurements (soundings) recorded each day at
1200 GMT at Salem, Oregon (SLE; Salem Municipal Airport),53 located 70 km SSW of
the Bullseye facility.
AERMOD ignores hours with variable wind (i.e., undefined wind direction) or
calm (low wind speed) conditions, resulting in zero concentrations for those hours,
which can lead to an underestimation of long-term average concentrations. To address
the issue of calm and variable winds associated with the hourly averaged surface wind
data that is typically input to AERMOD, US EPA developed the AERMINUTE
preprocessor.54 AERMINUTE processes 1-minute ASOS wind data, resulting in
significantly fewer hours with calm and missing winds. I used AERMINUTE (Version
15272) to reduce the number of calm wind conditions (zero wind speed) within the
hourly Portland surface data for 2010-2015 from 9,794 to 530 (out of 52,584 total
modeled hours).
AERSURFACE,55 a non-regulatory component of the AERMOD modeling
system, was used to develop the surface characteristics at PDX, as required by
AERMET. I obtained land cover/land use data from the US Geological Survey (USGS)
National Land Cover Database (NLCD)56 and processed the data using AERSURFACE
(Version 13016) in order to determine the required micrometeorological parameters
(noon-time albedo, daytime Bowen ratio, and surface roughness length) at PDX using
twelve 30-degree sectors for each month. Average surface moisture was assumed for
the Portland Airport location.57
52
National Centers for Environmental Information (NCEI), Automated Surface Observing System (ASOS)
Data for PDX (WBAN: 24229) 2010-2015. National Oceanic and Atmospheric Administration (NOAA).
https://www.ncdc.noaa.gov/data-access/land-based-station-data/land-based-datasets/automated-surface-
observing-system-asos
53
Earth System Research Laboratory (ESRL), ESRL Radiosonde Database, FSL Data for SLE (WBAN:
24232) 2010-2015. National Oceanic and Atmospheric Administration (NOAA).
https://ruc.noaa.gov/raobs/General_Information.html
54
U.S. Environmental Protection Agency. AERMINUTE User’s Guide. U.S. Environmental Protection
Agency, Research Triangle Park, NC 27711. 2011.
http://www.epa.gov/ttn/scram/7thconf/aermod/aerminute_v11059.zip
55
U.S. Environmental Protection Agency. AERSURFACE User’s Guide. EPA-454/B-08-001. U.S.
Environmental Protection Agency, Research Triangle Park, NC 27711. 2008.
(http://www.epa.gov/ttn/scram/7thconf/aermod/aersurface_userguide.pdf)
56
Multi-Resolution Land Characteristics Consortium (MRLC). https://www.mrlc.gov/
57
According to Climate Data for US Cities (http://www.usclimatedata.com/climate/portland/oregon/united-
states/usor0275) and Average Annual Precipitation by City in the United States
(https://www.currentresults.com/Weather/US/average-annual-precipitation-by-city.php), the average
annual precipitation for Portland Oregon is between 36 and 37 inches. AERSURFACE guidelines
recommend using the wet surface moisture option for locations in the top 30 percent of annual
precipitation (greater than about 45 inches).
16
I used the AERMET meteorological preprocessor (Version 16216)58 to merge the
hourly surface and upper air data, and to estimate a number of required boundary layer
parameters using the meteorological data and surface characteristics.
F. Modeling Options
A number of control options must to be specified in order to execute the
AERMOD model. For this application, regulatory default options were used, which
includes the use of stack-tip downwash, elevated (non-flat) terrain effects, and the
calms and missing data processing as set forth in US EPA’s modeling guidelines.59 The
model’s averaging time was set to one hour and default flagpole receptor heights were
assumed to be 1.5 m. The Bullseye Glass facility is located in Portland, Oregon, an
urban area (estimated population: 600,00060), and therefore the “URBAN” modeling
option was selected within AERMOD.61
I used the most recent version of AERMOD (v16216r) to estimate the PM10
concentration impacts due to emissions from the Bullseye facility. No background
concentrations were added to the modeled impacts, therefore the modeled PM10
concentrations represent the incremental impact to the surrounding community from the
Bullseye facility. The AERMOD model accounted for the impacts from the colored glass
furnaces separately from the clear glass-only furnaces ( ).
The AERMOD modeling assumed constant PM10 emissions rates for each
furnace for every modeled hour. The actual emissions for each furnace may have
varied significantly (with zero emissions during many hours, i.e., when the furnace is not
being used). Such variability would potentially result in much higher short-term peak
concentrations at numerous locations. However, the long-term average concentrations
will be well represented by the model results shown below, for which a constant
average emission rate was used.
IV. MODEL RESULTS

I ran the AERMOD model using actual PM10 emission rates, as shown in Table 3,
above. These model results correspond to the emissions configuration of the Bullseye
facility before Bullseye temporarily suspended the use of cadmium and arsenic, and
58
U.S. Environmental Protection Agency. User’s Guide to the AERMOD Meteorological Preprocessor
(AERMET). EPA-454/R-03-003. U.S. Environmental Protection Agency, Research Triangle Park, NC
27711. 2004. http://www.epa.gov/ttn/scram/7thconf/aermod/aermet_userguide.zip
59
U.S. Environmental Protection Agency. Guideline on Air Quality Models, 40 CFR Part 51, Appendix W.
Published in the Federal Register, Vol. 70, No. 216, November 9, 2005.
60
According to the US Census, the population of Portland increased from 584,000 in 2010 to 632,000 in
2015 (https://www.census.gov/quickfacts/table/PST045215/4159000/accessible).
61
The “URBAN” modeling option incorporates the effects of increased surface heating from an urban
area on pollutant dispersion under stable nighttime atmospheric conditions.
17
began installing baghouses in 2016. The modeled concentrations using six years of
meteorological data (2010-2016) represents the long-term average PM10 concentration
impact to the surrounding area due to emissions from the Bullseye facility.
The AERMOD model estimated the average PM10 concentration due to
emissions from Bullseye Glass for every hour of the six-year modeling period at every
gridded receptor location. Long-term averages of the individual hourly modeled
concentrations were computed at each modeled receptor location. Figure 6 shows the
modeled six-year average PM10 concentration impacts for the 18 Bullseye colored glass
furnaces.62
Figure 6. Modeled long-term PM10 concentrations (µg/m3),

62
PM10 contours are shown in Figure 6 for concentrations up to 0.5 µg/m3. The dark brown area in the
center of the contours represents PM10 concentrations that exceed 0.5 µg/m3.
18
To further illustrate the peak concentration area in Figure 6, the location of each
receptor in which the modeled PM10 concentrations from the colored glass furnaces
exceeded 0.2 µg/m3 is shown in Figure 7.63

63
The (red) marked locations shown in Figure 7 correspond to the area inside the second inner orange
ring in Figure 6.
19
The AERMOD model predicted that elevated concentrations occur over a large
area surrounding the Bullseye Glass facility. For example, the model indicated that the
long-term (six-year) average PM10 concentration due to Bullseye’s colored glass
furnaces exceeded 0.2 µg/m3 over an area of approximately 3.1 square kilometers, as
shown in Figures 6 and 7.64 Figure 8 also shows the area in which the modeled long-
term PM10 concentrations exceeded 0.2 µg/m3 due to emissions from the colored glass
furnaces at the Bullseye facility.65

64
Each gridded receptor accounts for an approximate area of 0.0025 km2.
65
The area shown inside the black line in Figure 8 is identical to the area under the receptors shown in
Figure 7 or the area inside the second inner orange ring in Figure 6.
20
V. SUMMARY AND CONCLUSIONS
I compiled the necessary information in order to characterize the Bullseye facility,
specifically related to the emissions of particulate matter (PM) from the glass melting
furnaces before the installation of the baghouse control system in 2016. I also
constructed the required hourly meteorological data representing the six-year period
2010-2015. I updated Bullseye’s estimated PM emission rates for their glass melting
furnaces with PM emission estimates that are based on actual source test data from the
Bullseye facility, rather than an emission factor from EPA’s AP-42 for industrial flat glass
manufacturing that is not representative of the glass melting operation at the Bullseye
facility.
The source and meteorological data were input to the AERMOD dispersion
model which was used to estimate the air quality impacts in the surrounding community.
The model results indicate that emissions from the Bullseye plant had a significant
effect on PM10 air quality in a large area surrounding the facility. The model estimated
that, prior to 2016, emissions from Bullseye’s colored glass furnaces were responsible
for an increase in long-term average PM levels of at least 0.2 µg/m3 over an area of 3.1
square kilometers (km2), which is equivalent to the area of a circle with a diameter of 2.0
km.
These conclusions were reached based upon the information I have reviewed to-
date, including the materials identified in Appendix A (Materials Considered). I reserve
the right to alter this report and its conclusions based on new information.
21
APPENDIX A. Materials Considered (Bibliography)
Average Annual Precipitation by City in the United States, 2017.
https://www.currentresults.com/Weather/US/average-annual-precipitation-by-city.php
Barker K., 2016. Deposition of Kurt Barker (November 3, 2016).
Bullseye Glass Co., 2010-2015, Annual Report for Contaminant Discharge Permit
Number 26-3135, Bullseye Glass Co. (2010-2015).
Bullseye Glass Co., 2016, Survey Response Spreadsheet (file: BE00005380.xlsx).
Bullseye Glass Co., 2016, Facility Maps (files BE00005238 and BE00005241).
Bullseye Glass Co., 2016, Baghouse Memoranda (files: AIR_CLEAN_00001517,
AIR_CLEAN_00001551, and AIR_CLEAN_00003235).
Bullseye Glass Co., 2016, Memoranda regarding the processing of baghouse material
(file: Baghouse Cleanout Estimates - BE00009578-BE00009579.pdf).
Bullseye Glass Co., 2016, Press Release: Bullseye Factory Filtration is Underway,
Portland, Oregon, March 29, 2016. http://www.bullseyeglass.com/news/bullseye-
factory-filtration-is-underway.html
Climate Data for US Cities, 2017.
http://www.usclimatedata.com/climate/portland/oregon/united-states/usor0275
Davis, R., 2016, “New maps show heavy metal hot spots in two more Portland
neighborhoods”, The Oregonian (February 17, 2016).
http://www.oregonlive.com/environment/index.ssf/2016/02/new_maps_show_heavy_me
tal_hot.html
Department of Environmental Quality (DEQ), 2011, Standard Air Contaminant
Discharge Permit, Permit Number 26-3135-ST-01, Oregon Department of
Environmental Quality.
Department of Environmental Quality (DEQ), 2016. Bullseye Area-wide Air Sampling
and Analysis Plan, Oregon Department of Environmental Quality (February 24, 2016).
Donovan, G.H. et al., 2016. Using an epiphytic moss to identify previously unknown
sources of atmospheric cadmium pollution, Science of the Total Environment, 559,
(2106) 84-93.
Earth System Research Laboratory (ESRL), 2017, ESRL Radiosonde Database, FSL
Data for SLE (WBAN: 24232) 2010-2015. National Oceanic and Atmospheric
Administration (NOAA). https://ruc.noaa.gov/raobs/General_Information.html
Horizon Engineering, 2016, Source Evaluation Report: Bullseye Glass Co., Portland
Oregon, Report 16-5702, Horizon Engineering(June 9, 2016) (file: MON000000031.pdf).
22
Multi-Resolution Land Characteristics Consortium (MRLC), 2017. https://www.mrlc.gov/
National Climatic Data Center, 2017, Integrated Surface Data (ISD) for PDX (WBAN:
24229) 2010-2015, National Oceanic and Atmospheric Administration (NOAA).
ftp://ftp.ncdc.noaa.gov/pub/data/noaa/readme.txt
National Centers for Environmental Information (NCEI), 2017, Automated Surface
Observing System (ASOS) Data for PDX (WBAN: 24229) 2010-2015. National Oceanic
and Atmospheric Administration (NOAA). https://www.ncdc.noaa.gov/data-access/land-
based-station-data/land-based-datasets/automated-surface-observing-system-asos
Oregon Department of Environmental Quality, 2017, Air Quality Data in the air near
Powell and SE 22nd Ave in Portland (Exhibit 44), March 10, 2017.
Oregon Department of Environmental Quality, 2017, Air Quality Monitoring Results SE
Powell and SE 22nd Ave (Exhibit 45), March 10, 2017.
Reznik, R.B., 1976, Source Assessment: Flat Glass Manufacturing Plants, EPA-600/20-
76-032b, U.S. Environmental Protection Agency, Cincinnati, OH (March 1976).
Schulman, et. al., 2000, Development and Evaluation of the PRIME Plume Rise and
Building Downwash Model, Journal of the Air & Waste Management Association,
50:3, 378-390.
Spinosa, E.D., et al., 1979, Summary Report on Emissions from the Glass
Manufacturing Industry, EPA-600/2-79-101, U.S. Environmental Protection Agency,
Cincinnati, OH (April 1979).
United States Census, 2007.
https://www.census.gov/quickfacts/table/PST045215/4159000/accessible
United States Environmental Protection Agency, 1995, AP-42: Fifth Edition Compilation
of Air Pollutant Emission Factors, Volume 1: Stationary Point and Area Sources, U.S.
Environmental Protection Agency, Research Triangle Park, NC 27711 (January 1995).
United States Environmental Protection Agency, 1995, AP-42: Fifth Edition Compilation
of Air Pollutant Emission Factors, Section 11-15, Glass Manufacturing, U.S.
Environmental Protection Agency, Research Triangle Park, NC 27711 (January 1995).
United States Environmental Protection Agency, 2004, AERMOD: Description of Model
Formulation, EPA-454/R-03-004. U.S. Environmental Protection Agency, Research
Triangle Park, NC 27711 (September 2004).
United States Environmental Protection Agency, 2004, User’s Guide to the AERMOD
Meteorological Preprocessor (AERMET), EPA-454/R-03-003, U.S. Environmental
Protection Agency, Research Triangle Park, NC 27711.
http://www.epa.gov/ttn/scram/7thconf/aermod/aermet_userguide.zip
23
United States Environmental Protection Agency, 2004, User’s Guide to the Building
Profile Input Program, EPA-454/R-93-038, U.S. Environmental Protection Agency,
Research Triangle Park, NC 27711.
http://www.epa.gov/ttn/scram/models/relat/bpipprime.zip
United States Environmental Protection Agency, 2005, Guideline on Air Quality Models,
40 CFR Part 51, Appendix W, published in the Federal Register, Vol. 70, No. 216
(November 9, 2005).
United States Environmental Protection Agency, 2008, AERSURFACE User’s Guide,
EPA-454/B-08-001, U.S. Environmental Protection Agency, Research Triangle Park,
NC 27711. http://www.epa.gov/ttn/scram/7thconf/aermod/aersurface_userguide.pdf
United States Environmental Protection Agency, 2009, AERMOD Implementation
Guide, U.S. Environmental Protection Agency, Research Triangle Park, NC 27711.
United States Environmental Protection Agency, 2011, Addendum: User’s Guide for the
AMS/EPA Regulatory Model – AERMOD, EPA-454/B-03-001. U.S. Environmental
Protection Agency, Research Triangle Park, NC 27711 (March 2011).
United States Environmental Protection Agency, 2011, AERMINUTE User’s Guide, U.S.
Environmental Protection Agency, Research Triangle Park, NC 27711.
http://www.epa.gov/ttn/scram/7thconf/aermod/aerminute_v11059.zip
United States Environmental Protection Agency, 2016, User’s Guide for the AMS/EPA
Regulatory Model – AERMOD, EPA-454/B-16-011. U.S. Environmental Protection
Agency, Research Triangle Park, NC 27711 (December 2016).
Zarkhin, F., 2016, “Portland's toxic hotspots discovered as an after-thought”, The
Oregonian (February 20, 2016).
http://www.oregonlive.com/environment/index.ssf/2016/02/portlands_toxic_hotspots_dis
co.html
24
I declare under penalty of perjury under the laws of the State of Oregon that the
foregoing is true and correct.
Executed on November 16, 2017, at San Rafael, California.
_______________________________________________________
H. Andrew Gray
25
Exhibit 7
Significance of pollutant levels in the vicinity of the Bullseye Glass facility
prior to its installation of baghouse air pollution control devices in 2016

Mark Chernaik, Ph.D.

November 22, 2017

Introduction and Summary

At the request of counsel for the plaintiffs in the matter of Meeker et al. v Bullseye
Glass Co. (Case No. 16-‐CV-‐07002), I am providing an opinion on the significance of
pollutant levels in the vicinity of the Bullseye Glass facility resulting from emissions
prior to its installation of baghouse air pollution control devices in 2016.

In my opinion, uncontrolled emissions from the Bullseye Glass facility during the
calendar years of 2010 through 2015 caused: 1) an increase in the concentration of
fine inhalable particles (PM2.5) associated with a significant risk of increased
mortality within the boundary where PM10 levels are predicted to have increased by
0.2 µg/m3; 2) an increase in the concentration of carcinogenic elements (cadmium,
hexavalent chromium and arsenic) associated with a significant risk of increased
tumors within the boundary where PM10 levels are predicted to have increased by
0.2 µg/m3; and 3) an increase in the deposition rate of cadmium associated with a
significant risk of health effects within the boundary where PM10 levels are
predicted to have increased by 0.2 µg/m3

Qualifications

In 1990, I earned a Ph.D. from Johns Hopkins University School of Hygiene and
Public Health based on original research focusing on the mechanism of cadmium
detoxification.1 In 1993, I earned a law degree from the University of Oregon School
of Law with an emphasis on environmental law. Since my graduation from the
University of Oregon, I have served as Staff Scientist for the Environmental Law
Alliance Worldwide (ELAW) advising public interest environmental lawyers outside
the U.S. on a variety of scientific matters, including more than 100 cases involving
the significance of pollutant emissions from industrial facilities. In June 2005,2 and
again in February 2011,3 the European Court of Human Rights relied on my opinions
to reach landmark decisions regarding the rights of individuals exposed to toxic
substances from industrial facilities.

1 Chernaik, M. L., & Huang, P. C. (1991). Differential effect of cysteine-‐to-‐serine substitutions in
metallothionein on cadmium resistance. Proceedings of the National Academy of Sciences, 88(8),
3024-‐3028.
2 Fadeyeva v. Russia 55723/00 [2005] ECHR 376 (9 June 2005)
3 Dubetska v. Ukraine 30499/03 [2011] ECHR (10 February 2011)
4 Greene et al. v. Will, et al, Cause No. 3:09CV510-‐PPS, United States District Court, N.D. Indiana,
2 Fadeyeva
South Bend vD . Rivision,
ussia 5N 5723/00
ovember [2005]
24, 2015.
ECHR
Opinion
376 (9 aJnd
une O2rder
005) Granting Plaintiffs' Motion for Default
Judgment
3 Dubetska Avgainst
. Ukraine Defendants
30499/03 Kenneth
[2011] RE. CHR
Will, (10
VIM February
Recycling,
2011)
inc. and K.C. industries, LLC.
1

I also serve public interest lawyers in the U.S. as an independent consultant. In this
capacity, in 2011, the United States District Court for the Northern District of
Indiana accepted my expert opinion in support of a motion for class certification on
the cause and effects of exposure of the surrounding community to air pollution
from an industrial waste processing facility. The court granted class certification in
that case relying on my testimony, and awarded damages of more than $50 million
to the plaintiff class based in part on my expert testimony about the health effects
caused by defendants’ releases of toxic substances.4 I am co-‐author of a recent peer-‐
reviewed study in which I interpreted the significance of pollutant levels near
natural gas production wells.5

Documents Reviewed

In addition to documents cited in footnotes of this report, my opinions in this report
are based on my review of following documents listed in Appendix A of this report:

The Bullseye Glass Facility

Since the 1970’s, the Bullseye Glass Company has operated a glass manufacturing
facility in Southeast Portland with an annual production capacity of more than 2000
tons of melted glass, produced batch-‐wise in approximately 20 furnaces that remain
fired on a nearly continuous basis. For the production of colored glass, the Bullseye
Glass Company uses substantial quantities of additives containing toxic metals,
including cadmium, chromium, arsenic and lead. Until 2016, the Bullseye Glass
Company did not employ air pollution control devices for reducing its emissions.

Starting in December of 2013, researchers with the U.S. Forest Service assayed
cadmium levels in moss growing on the trunks and branches of trees throughout
Portland, discovering an unexpected hot spot of cadmium centered on the Bullseye
Glass facility in Southeast Portland. Shortly after these results were made public in
2015, the Oregon Department of Environmental Quality (DEQ) measured the
concentrations of metals in ambient air in Southeast Portland, finding highly
elevated concentrations of cadmium and arsenic near the Bullseye Glass facility.
This prompted the Bullseye Glass Company, in February 2016, to suspend using
additives containing cadmium and arsenic, and for the DEQ, in May of 2016, to order
the Bullseye Glass Company to cease using additives containing cadmium, arsenic,
chromium, lead, cobalt, selenium, manganese and nickel in any furnace not
equipped with a baghouse control device.

4 Greene et al. v. Will, et al, Cause No. 3:09CV510-‐PPS, United States District Court, N.D. Indiana,
South Bend Division, November 24, 2015. Opinion and Order Granting Plaintiffs' Motion for Default
Judgment Against Defendants Kenneth R. Will, VIM Recycling, inc. and K.C. industries, LLC.
https://www.leagle.com/decision/infdco20151125d51
5 Macey, G. P., Breech, R., Chernaik, M., Cox, C., Larson, D., Thomas, D., & Carpenter, D. O. (2014). Air
concentrations of volatile compounds near oil and gas production: a community-‐based exploratory
study. Environmental Health, 13(1), 82.
2

Significance of Predicted PM10 Levels in Ambient Air

Estimation of PM2.5 levels

Using AERMOD6 (a U.S. EPA adopted air dispersion modeling system), local
meteorological conditions, and data reflecting actual emissions from the Bullseye
Glass facility7, H. Andrew Gray predicts8 that prior to the installation of a baghouse
emissions of particulates from the facility caused a more than 0.2 microgram per
cubic meter (µg/m3) increase in long-‐term ambient levels of inhalable particulates
(with a diameter of less than 10 microns, termed PM10) within the following area:

If the increase in long-‐term ambient levels of PM10 within this area was more than
0.2 µg/m3, then the increase levels of fine inhalable particles (termed PM2.5) was a
substantial majority of PM10 levels. According to U.S. EPA source test data, roughly
96% of uncontrolled PM10 emissions from glass manufacturing facilities are in the

6 U.S. EPA: Air Quality Dispersion Modeling -‐ Preferred and Recommended Models
https://www.epa.gov/scram/air-‐quality-‐dispersion-‐modeling-‐preferred-‐and-‐recommended-‐models
7 Horizon Engineering (June 9, 2016) "Source Evaluation Report: Bullseye Glass Co., Portland
Oregon." Report 16-‐5702

8 The report of H. Andrew Gray uses the following conservative assumptions that would tend to
underestimate long-‐term ambient levels of PM10 caused by uncontrolled emissions of Bullseye Glass;
1) Only stack emissions are modeled, leaving out sources of fugitive emissions at the facility; 2) the
model used exit velocities and temperatures of gases exiting the stacks that are at the very high end
of reported data for the facility.
3
form of PM2.5.9 See table below. Therefore, if the increase in long-‐term ambient
levels of PM10 within this area was more than 0.2 µg/m3, then the increase in long-‐
term ambient levels of PM2.5 was more than 0.19 µg/m3.10

Significance of PM2.5 levels

There is a well-‐documented and robust association, based on epidemiological
studies, of exposure to PM2.5 in ambient air and premature mortality. According to
the U.S. EPA’s most recent Integrated Science Assessment for Particulate Matter the
following causal relationships exist for long-‐term exposure to PM2.5.:

A recent study11 of experts with the Harvard University School of Public Health
found that mortality among populations in New England rose 7.52% in a statistically

9 United States Environmental Protection Agency, 1995, AP-‐42: Fifth Edition Compilation of Air
Pollutant Emission Factors, Section 11-‐15, Glass Manufacturing, U.S. Environmental Protection
Agency, Research Triangle Park, NC 27711 (January 1995).
10 Consistent with the very fine nature of particulate emissions of the facility, Kurt Barker,
Maintenance Supervisor for the facility, stated in his deposition: "Q Can you describe to me what that
particulate matter looks like before it's compacted? A Just a white fluffy particulate."
4
robust fashion (p-‐Value 0.007) per each 10 µg/m3 in long-‐term PM2.5 regardless of
whether air quality in a location met or exceeded the U.S. EPA long-‐term National
Ambient Air Quality Standard of 12 µg/m3.
Percent increase in mortality (95% CI) for a 10-μg/m3 increase for both short-term and long-term PM2.5.
PM2.5 exposure Model Percent increase p-Value

With mutual adjustment
Low daily exposurea 2.14 ± 0.81 < 0.001
Short-term PM2.5
Full cohort 2.14 ± 0.75 < 0.001
Low chronic exposureb 9.28 ± 8.88 0.032
Long-term PM2.5
Full cohort 7.52 ± 5.73 0.007
Without mutual adjustment
Low daily exposurea 2.07 ± 0.80 < 0.001
Short-term PM2.5
Full cohort 2.08 ± 0.76 < 0.001
b
Low chronic exposure 7.16 ± 8.75 0.109
Long-term PM2.5
Full cohort 6.46 ± 5.69 0.026
a
The full cohort analysis had 551,024 deaths. The analysis was restricted only to person time with daily
PM2.5 < 30 μg/m3 (422,637 deaths). bThe analysis was restricted only to person time with chronic PM2.5 <
10 μg/m3 (268,050 deaths).

Therefore, in areas where uncontrolled emissions from Bullseye Glass increased
long-‐term ambient levels of PM2.5 by 0.19 µg/m3 or more, the incremental risk of
mortality in the area (associated with the uncontrolled emissions) would have been
0.14% or more.12 That is, for calendar years 2010 to 2015, persons residing in
the area (where modeled long-‐term PM10 concentrations exceeded 0.2 μg/m3
from uncontrolled emissions from colored glass furnaces at Bullseye Glass)
would have experienced a 0.14% increased risk of dying compared to a scenario
where such emissions had been controlled.

Exposure to particulate matter from a single source that causes a 0.14% increased
risk of mortality above the baseline mortality rate is highly significant from a public
health perspective. The incremental risk of mortality associated with uncontrolled
emissions from Bullseye Glass would have been higher, but not fundamentally
different in nature, at locations closer to the facility than at the boundary.

11 Shi, L., Zanobetti, A., Kloog, I., Coull, B. A., Koutrakis, P., Melly, S. J., & Schwartz, J. D. (2016). Low-‐
concentration PM2. 5 and mortality: Estimating acute and chronic effects in a population-‐based
study. Environmental health perspectives, 124(1), 46.
12 7.52% per 10 µg/m3 x 0.19 µg/m3 = 0.14%.
5
Significance of Cadmium, Chromium and Arsenic Levels in Ambient Air

Estimation of Cadmium, Hexavalent Chromium and arsenic levels

Starting in 2016, after Bullseye Glass installed baghouses for controlling its
emissions of particulate matter, the facility began collecting material trapped by
filtration within the baghouses. An analysis of levels of toxic metals in the material
trapped by filtration within the baghouses yielded the following results, in
milligrams per kilogram (mg/kg):13

Kurt Barker, Maintenance Supervisor for the facility, stated in his deposition that
material trapped by filtration within the baghouses is one-‐third emissions from
colored glass furnaces and two-‐thirds pre-‐coat material that is added to improve
filtration by the baghouses.14 If so, and assuming that the aluminum silicate sorbent
used by Bullseye has di minimis levels of cadmium, hexavalent chromium and
arsenic, I estimate that uncontrolled emissions of particulate matter prior to the
installation of baghouses would have consisted of 2.77% cadmium, 0.14%
chromium, and 0.32% arsenic. Levels of toxic metals in baghouse material are
similar to levels of cadmium (1.6%) arsenic (0.5%), and chromium (0.1%) in 440
gallons of sediment in a drywell at the Bullseye Glass facility, the origin of which was
particulates that were emitted and deposited onto the facility's roof.15

Further source testing by Oregon DEQ revealed that substantially all (98%) of
chromium emissions generated by colored glass furnaces at Bullseye Glass are in the
form of hexavalent chromium.16

13 Apex Labs (December 1, 2016) "RE: Bullseye Glass/9088 (results of analyses for work order
A6K0578).
14 “Q So when we discussed earlier about you might have about ten barrels a week of particulate
matter you're collecting from the bags, do you have any idea what percentage of the material in that
barrel is a sorbent versus a particulate matter? A I do. 8 Q What's that percentage? A Two to one. Q
Two to one sorbent? A Two sorbent, one particulate matter.” Deposition of Kurt Barker (Thursday,
November 3, 2016) in the matter of Meeker et al. v Bullseye Glass (Case No. 16-‐CV-‐07002)
15 Bridgewater Group (October 4, 2016) "Memorandum to Eric Dunn/Bullseye Glass, Drywell #1
Sediment and Stormwater Sampling Results."

16 Oregon DEQ (2016) "Bullseye source test results, DEQ's actions to identify and control the
unknown hexavalent chromium source: Question and answers
6

Based on this data,17 I estimate that in areas where uncontrolled emissions from
Bullseye Glass increased long-‐term ambient levels of PM10 by 0.2 µg/m3, long-‐term
ambient levels of toxic metals were increased by the following amounts:

Cadmium: 0.0055 µg/m3
Hexavalent chromium: 0.00027 µg/m3
Arsenic: 0.00064 µg/m3

Significance of Cadmium, Hexavalent Chromium and arsenic levels

Cadmium, inorganic arsenic and hexavalent chromium are known human
carcinogens.18 The California Office of Environmental Health Hazard Assessment
has determined that the lifetime tumor risk associated with lifetime continuous
inhalation of cadmium, inorganic arsenic and hexavalent chromium incurs the
following unit risks.19

Applying these unit risks to estimated levels of cadmium, inorganic arsenic and
hexavalent chromium that occurred within the boundary within which emissions of
particulates from the facility caused a more than 0.2 µg/m3 increase in long-‐term
ambient levels of PM10, yields a cumulative cancer risk of 67 per million,
comprised of a cancer risk associated with exposure to cadmium of 23 per
million, a cancer risk associated with exposure to hexavalent chromium of 42
per million, and a cancer risk associated with exposure to arsenic of 2 per
million. Infants and children within the boundary were also exposed to these levels
of carcinogenic metals. Infants and children are more vulnerable to exposures to
carcinogens. For infants between the age of 0-‐2, and Age Sensitivity Factor of 10 is
applied to the unit risks above; for children between the age of 0-‐2, and Age
Sensitivity Factor of 3 is applied to the unit risks above.20

17 The only air ambient quality data available for cadmium, chromium and arsenic levels in the area
prior to installation by Bullseye Glass of baghouses (from October 2015) show higher levels of
cadmium (0.0294 µg/m3), chromium (0.0715 µg/m3) and arsenic (0.0317 µg/m3), which partly
reflects, in my opinion, the conservative assumptions used in the report of H. Andrew Gray.
18 IARC Monograph on the Evaluation of Carcinogenic Risks to Humans.
http://monographs.iarc.fr/ENG/Classification/latest_classif.php
19 California Office of Environmental Health Hazard Assessment "Hot Spots Unit Risk and Cancer
Potency Values." https://oehha.ca.gov/media/CPFs042909.pdf

20 Office of Environmental Health Hazard AssessmentTechnical Support Document for Cancer
Potency Factors (2009) Methodologies for derivation, listing of available values, and adjustments to
allow for early life stage exposures.
7

In Oregon, the cancer risk of exposure to these estimated levels of cadmium,
inorganic arsenic and hexavalent chromium (occurring within the boundary within
which ambient levels of PM10 from the facility were more than 0.2 µg/m3) would be
unacceptable as a matter of state law. ORS 465.315 (1)(b)(A) states: “For protection
of humans, the acceptable risk level for exposure to individual carcinogens shall be a
lifetime excess cancer risk of one per one million people exposed.”

The cancer risk associated with uncontrolled emissions from Bullseye Glass would
have been higher, but not fundamentally different in nature, at locations closer to
the facility than at the boundary within which emissions of particulates from the
facility caused a 0.2 µg/m3 increase in long-‐term ambient levels of PM10.

Significance of Deposited Levels of Cadmium

Estimation of cadmium deposition rates

As noted above, I estimate that in areas where uncontrolled emissions from Bullseye
Glass increased long-‐term ambient levels of PM10 by 0.2 µg/m3, long-‐term ambient
levels of cadmium were increased by 0.0055 µg/m3. For the purposes of calculating
dust deposition rates of cadmium, state regulatory agencies assume an average
deposition velocity of 0.5 centimeters per second (equivalent to 430 meters per
day).21 Applying this average deposition velocity to a long-‐term ambient level of
cadmium of 0.0055 µg/m3 yields a deposition rate of 2.4 μg/m2/day.

Over the calendar years of 2010-‐2015, more than 5 milligrams of cadmium from
uncontrolled emissions by Bullseye Glass would have fallen onto each square meter
of surface at the boundary within which emissions of particulates from the facility
caused a 0.2 µg/m3 increase in long-‐term ambient levels of PM10.

Significance of cadmium deposition rates

Toxic metals in dust that deposits onto residential properties can pose a significant
public health risk.22 This is particularly true for cadmium.23 Dust that deposits
outside onto soil or walkways is tracked into homes and is a primary source of
household dust.24 Since people, especially young children, spend more time indoors

21 New Jersey Atmospheric Deposition Network Division of Science, Research and Technology
Research Project Summary, April, 2005. http://www.state.nj.us/dep/dsr/njadn/njadn-‐rps.pdf

22 Layton, D. W., & Beamer, P. I. (2009). Migration of Contaminated Soil and Airborne Particulates to
Indoor Dust. Environ Sci Technol, 43(21), 8199-‐8205

23 Hogervorst, Janneke, Michelle Plusquin, Jaco Vangronsveld, Tim Nawrot, Ann Cuypers, Etienne Van
Hecke, Harry A. Roels, Robert Carleer, and Jan A. Staessen. "House dust as possible route of
environmental exposure to cadmium and lead in the adult general population." Environmental
research 103, no. 1 (2007): 30-‐37.
24 Hunt, A., Johnson, D. L., & Griffith, D. A. (2006). Mass transfer of soil indoors by track-‐in on
footwear. Science of the Total Environment, 370(2), 360-‐371.
8
than outdoors, the accumulation of toxic metals in house dust, especially, cadmium,
arsenic and lead, can pose a greater public health hazard that exposure to cadmium,
arsenic and lead in outdoor ambient air.25

Although there are no U.S. standards for outdoor dust deposition rates, for the
protection of public health, Germany established a maximum acceptable daily dust
deposition rates for arsenic of 4 μg/m2/day, for cadmium of 2 μg/m2/day, and for
lead of 100 μg/m2/day on an annual basis.26 Germany’s standards have been
adopted by a number of jurisdictions internationally.27 I estimate that during the
calendar years of 2010-‐2015, cadmium emitted by the Bullseye Glass facility caused
cadmium to deposit at a rate 20% above the health-‐based standard of Germany
within the boundary where PM10 levels are predicted to have increased by 0.2
µg/m3. I estimate that the deposition rates of arsenic and lead emitted by the
Bullseye Glass facility would have been lower than the health-‐based standards of
Germany over the same time period.

The rate at which cadmium emitted from the Bullseye Glass facility fell onto
residential properties was highly significant from a public health perspective and,
because of the persistent nature of toxic metals in house dust, remains today a
public health issue. Higher amounts of cadmium would have fallen onto each
square meter of surface closer to the Bullseye facility.28 However, these higher
amounts closer in would not fundamentally alter the nature of the public health risk
of cadmium that fell onto residential properties within the boundary.

Conclusions

Emissions from the Bullseye Glass facility during the calendar years of 2010 through
2015 caused:

• An increase in the concentration of fine inhalable particles (PM2.5) associated
with a significant risk of increased mortality within the boundary where
PM10 levels are predicted to have increased by 0.2 µg/m3;

25 Paustenbach, D. J., Finley, B. L., & Long, T. F. (1997). The critical role of house dust in understanding
the hazards posed by contaminated soils. International Journal of Toxicology, 16(4-‐5), 339-‐362.
26 TA Luft. 2002. Technical instructions of air quality control, first general administration regulation
pertaining the federal Immission Control Act. Available:

http://www.bmub.bund.de/fileadmin/Daten_BMU/Download_PDF/Luft/taluft_engl.pdf
27 Taylor, M. P., Mould, S. A., Kristensen, L. J., & Rouillon, M. (2014). Environmental arsenic, cadmium
and lead dust emissions from metal mine operations: Implications for environmental management,
monitoring and human health. Environmental research, 135, 296-‐303.
28 This is consistent with the conclusion of the Oregon DEQ that "comparing cadmium concentrations
in soil with the distance from the facility shows concentrations decreasing with increasing distance."
Oregon Health Authority (October 2016) "Bullseye Glass Area-‐Wide Phase 2 Soil Sampling Report."
However, it is important to consider that cadmium from Bullseye Glass deposits and mixes into large
quantities of soil with trace amounts of cadmium, making soil levels of cadmium a poor metric for
determining the significance of uncontrolled emissions from Bullseye Glass.
9
• An increase in the concentration of carcinogenic elements (cadmium,
hexavalent chromium and arsenic) associated with a significant risk of
increased tumors within the boundary where PM10 levels are predicted to
have increased by 0.2 µg/m3; and

• An increase in the deposition rate of cadmium associated with a significant
risk of health effects within the boundary where PM10 levels are predicted to
have increased by 0.2 µg/m3

I reserve the right to amend my opinion based on new information, including a
Public Health Assessment of the Bullseye Glass facility that may be released by the
U.S. Agency for Toxic Substances and Disease Registry.

Date: 22 November 2017

Mark Chernaik, Ph.D.

10

APPENDIX A – LIST OF DOCUMENTS REVIEWED

Oregon DEQ (May 24, 2011) "Standard Air Contaminant Discharge Permit for
Bullseye Glass."

Oregon DEQ (November 2015) “Air Quality Data in the air near Powell and SE 22nd
Ave in Portland, October 6, 2015 through November 2, 2015.”

Oregon Health Authority (February 18, 2016) "Elevated Environmental Arsenic and
Cadmium Levels Cancer Incidence Evaluation Southeast Portland, Multnomah
County, 2009-‐2013."

Donovan, G. H., Jovan, S. E., Gatziolis, D., Burstyn, I., Michael, Y. L., Amacher, M. C., &
Monleon, V. J. (March 2016). “Using an epiphytic moss to identify previously
unknown sources of atmospheric cadmium pollution.” Science of the Total
Environment, 559, 84-‐93.

Oregon DEQ (April 13, 2016) “Letter to Eric Dunn Vice President/Controller
Bullseye Glass Co. Re: Applicability of 40 CFR Part 63 Subpart SSSSSS.”

regon DEQ (May 19, 2016) “Cease and Desist Order in the Matter of Bullseye Glass
Company.”

Horizon Engineering (June 9, 2016) "Source Evaluation Report: Bullseye Glass Co.,
Portland Oregon." Report 16-‐5702.

Bridgewater Group (October 4, 2016) "Memorandum to Eric Dunn/Bullseye Glass,
Drywell #1 Sediment and Stormwater Sampling Results."

Oregon DEQ (October 10, 2016) “Letter to Eric Dunn, Bullseye Glass, RE: Voluntary
Cleanup Cost Recovery Agreement.”

Oregon Health Authority (October 2016) "Bullseye Glass Area-‐Wide Phase 2 Soil
Sampling Report."

Deposition of Kurt Barker (Thursday, November 3, 2016) in the matter of Meeker et
al. v Bullseye Glass (Case No. 16-‐CV-‐07002)

Apex Labs (December 1, 2016) "RE: Bullseye Glass/9088 (results of analyses for
work order A6K0578"

Gatziolis, D., Jovan, S., Donovan, G., Amacher, M., & Monleon, V. (2016). “Elemental
atmospheric pollution assessment via moss-‐based measurements in Portland,
Oregon.”
11

Oregon DEQ (2016) "Bullseye source test results, DEQ's actions to identify and
control the unknown hexavalent chromium source: Question and answers."

Oregon DEQ, Air Quality Monitoring Results SE Powell and SE 22nd Ave, March 1,
2016 through February 17, 2017.

H. Andrew Gray (November 16, 2017) “Bullseye Glass PM10 Modelling.”

12
Exhibit 8
Report Regarding Class Certification
Meeker et al. v. Bullseye Glass Co., an Oregon Corporation
In the Circuit Court of the State of Oregon,
For the County of Multnomah
11/28/2017
Prepared at the request of:

Matthew Preusch and Amy Williams-Derry
Keller Rohrback L.L.P.
1201 3rd Ave #3200
Seattle, WA 98101
Prepared by:
John A. Kilpatrick, PhD, MAI, FRICS
Greenfield Advisors, Inc.
2101 Fourth Avenue, Suite 820
Seattle, WA 98121
Bullseye Glass 16-0501 1

Table of Contents
Qualifications...................................................................................................................................................... 3
Summary of Events Leading to This Case ..................................................................................................... 7
Description of the Proposed Class.................................................................................................................. 8
Mass Treatment in Determination of Damages to Real Estate ................................................................ 11
USPAP Requirements for Mass Appraisal Methods ..................................................................................13
Relevant Literature...........................................................................................................................................15
Mass Appraisal and Contamination ..........................................................................................................15
Stigma ............................................................................................................................................................17
Loss of Use and Enjoyment ......................................................................................................................21
Methods for Determining Value ...................................................................................................................22
Contingent Valuation and Focus Groups ................................................................................................22
Automated Valuation Model (AVM)........................................................................................................ 24
Data Sources ................................................................................................................................................24
Model Design and AVM Testing .............................................................................................................. 25
Additional Methods for Determining Value Impairment .....................................................................25
Case Studies..................................................................................................................................................26
Conclusions....................................................................................................................................................... 26
Certification ......................................................................................................................................................28

Qualifications
1. I am Dr. John A. Kilpatrick. I hold a PhD degree in real estate finance and am a state-certified
(general) real estate appraiser in all 50 states and the District of Columbia. 1 I am the Chairman
and Co-Managing Director of Greenfield Advisors, a real estate appraisal and consulting firm
with offices in Seattle, Washington, and suburban Atlanta, Georgia. For more than 40 years,
our firm has been a leading authority on difficult real estate appraisal problems, specializing in
the valuation of impaired sites. We are unusual, if not unique, in the high level of educational
and professional qualifications of our staff (which includes three PhDs); the rigor of our
quantitative techniques; and our articles on appraisal techniques, which have been published
in both academic and professional journals. In this matter, I am being compensated at a rate
of $600 per hour, or $300 per hour for travel. Others at Greenfield Advisors, who work under
my direct supervision, have hourly rates for analysis between $90 and $500. These are our
standard and customary rates for work of this nature.
2. I am an MAI-designated member of the Appraisal Institute, and the author or editor of four
books on real estate and a contributing author to four others, including Brownfields: A
Comprehensive Guide to Redeveloping Contaminated Property (American Bar Association, 3rd ed.
2010) and Private Real Estate Markets and Investments (Oxford University Press, 2014). I have
served as a consultant on environmentally impaired property to the U.S. General Services
Administration, the U.S. Army, and many other organizations. At the invitation of the Japan
Real Estate Institute, I co-authored the authoritative guide on the appraisal of environmentally
impaired properties for appraisers in that nation, published in the October 2003 issue of the
Journal of the Japan Real Estate Institute (JJREI). I am a former member of the Editorial Board of
The Appraisal Journal, the official peer-reviewed publication of the Appraisal Institute, and I
continue to serve on its Review Board. In 2004, I became one of a handful of appraisers in
the United States to be designated as a nationally certified appraisal standards instructor by the
Appraisal Standards Board in Washington, D.C. Also in 2004, my peers in the industry
honored me by nominating me for a seat on the Appraisal Qualifications Board and by naming
me a Member of the Faculty of Valuation of the British Royal Institution of Chartered
Surveyors; I was later named a Fellow of that organization in 2011. I am a past member of the
editorial board of the Journal of Sustainable Real Estate, an MAI-Designated member of the
Appraisal Institute, a Fellow of the American Real Estate Society, a Principal Member of the
Real Estate Counseling Group of America, and I have been professionally engaged in real
estate finance, appraisal, development, and teaching for over 35 years. I have been accepted
as an expert witness in various state and federal courts throughout the United States on matters
relating to real estate valuation, contaminated or otherwise impaired property values,
construction defects, and statistical analysis.
3. I am the lead author of “The Aftermath of Katrina: Recommendations for Real Estate
Research,” a peer-reviewed article written at the invitation of the Journal of Real Estate Literature
(Kilpatrick and Dermisi, 2007) to provide authoritative guidance to academics and real estate
practitioners conducting scholarly research into the real estate impacts in New Orleans
following the 2005 hurricane. The article recognizes that holistic, market-wide analytical
1 In the State of Oregon, my Certified General state license number is C000646.

methods are necessary to understand the economic and property value issues in the affected
areas.
4. I am the author of over 100 journal articles, monographs, and working papers. For example,
my paper, “Appraisal Error Terms and Confidence Intervals,” presented at the American Real
Estate Society’s 2010 annual meeting, was named the Best Paper on Real Estate Appraisal, an
award sponsored by the Appraisal Institute. I have been featured in articles in the New York
Times, CNBC, the Wall Street Journal, the British journal Modus, and other national and global
publications. Most recently, I was awarded the Bernard L. Barnard Outstanding Technical
Essay Award by the International Association of Assessing Officers for an article published
in the Journal of Real Estate Literature.2
5. Greenfield Advisors is widely regarded as one of the leading firms in the world in the valuation
of environmentally impaired property. This is evident by our 2003 JJREI invitation, requests
for me to lecture on this topic to the Asian Real Estate Society (2007 and 2008) and the
Technical University of Eindhoven in the Netherlands (2007), and our ongoing legacy of peer-
reviewed articles that appear in refereed journals and presentations at scholarly conferences.
Greenfield Advisors first introduced many of the advanced tools and techniques that
appraisers use to evaluate environmentally impaired property, such as stigma analysis, underground
rent, and survey research. We have written and lectured extensively on the application of mass
appraisal and statistical methods in class actions, and Greenfield Advisors’ 2007 white paper,
Certifying the Real Estate Damages Class – An Appraiser’s Perspective, is widely considered the
authoritative outline on the subject.
6. I have testified or consulted on numerous toxic release situations utilizing mass appraisal
methods, and I have testified or consulted on property valuation using automated valuation
models (AVMs) in federal court cases. Examples include but are not limited to the following:
 2017, District of Massachusetts: In Massachusetts Mutual Life Insurance Co. v. DLJ

Mortgage Capital, Inc. my mass appraisal model withstood a motion in limine, and the
case recently settled for an undisclosed sum.
 2016, various: I continue to consult on a variety of mortgage backed securities cases

using the Greenfield Advisors Automated Valuation Model (Greenfield AVM) to
measure, systematically, the value issues concerning residential properties across the
U.S.
 2015, District of Massachusetts: I was offered as an expert witness in Massachusetts

Mutual v. Deutsche Bank, United States District Court, District of Massachusetts, in
which my mass appraisal model would be used to retrospectively value properties
throughout the United States. My model and testimony were admitted, and the case
settled for an undisclosed sum.
 2015, New York: I testified in Federal Housing Finance Agency (FHFA) v. Nomura,
utilizing an AVM to determine retrospective property values. The court awarded my
2 Lipscomb, Clifford A., Abigail S. Mooney, and John A. Kilpatrick. 2013. “Do Survey Results Systematically Differ
from Hedonic Regression Results? Evidence from a Residential Property Meta-Analysis.” Journal of Real Estate Literature
21(2):233–253.

clients $806 million. Recently, on appeal, the 2nd Circuit Court of Appeals affirmed the
trial court’s decision.
 2014, United States: I consulted on American International Group Inc. et al. v. Bank of
America Corp. et al., utilizing an AVM to determine retrospective property values of
homes underlying residential mortgage-backed securities. This case settled in July 2014
for $650 million.
 2014, United States: I was a testifying expert in FHFA v. Goldman Sachs & Co., et al., a
federal court case focused on the valuation of properties underlying residential
mortgage-backed securities. This case recently settled for $1.2 billion.
 2014, United States: I also testified in the matter of FHFA v. Ally Financial Inc., et al.,
F/K/A GMAC, Inc., regarding the use of AVM, mass appraisal, and appraisal reviews
for evaluating appraisals underlying residential mortgage-backed securities. This case
settled.
 2014, United States: Also in the federal court system, I was the testifying expert in
FHFA v. Merrill Lynch & Co., Inc. This matter also involved my expertise on AVMs,
mass appraisal, and appraisal reviews as means for evaluating appraisals underlying
residential mortgage-backed securities. This case settled in 2014 as part of a $9.3 Billion
settlement with Bank of America.
 2012-2014, Missouri: I am continuing to consult to attorneys representing a class of
claimants in Barfield, et al., v. Sho-Me Power Electric, et al. (USDC, Western Dist of Mo)
regarding the value of a state-wide fiber optic cable easement. My mass appraisal
model, utilizing a corridor valuation, which was accepted by the Court, showed that
there was a systematic and measurable impact on all properties burdened by this
easement.
 2010–2012, South Carolina: I consulted on a series of cases versus AVX Corporation
stemming from volatile organic compound (VOC) contamination, one of which used
my mass appraisal model.
 2011, Maryland: I was the testifying expert in Michael Allison, et al. v. Exxon Mobil
Corporation, et al., a Maryland state court matter involving contaminated drinking water
for 154 properties. In this matter, I utilized a mass appraisal model to determine
unimpaired property values.
 2011, Tennessee: I consulted to several attorneys who represent property owners in
the affected areas surrounding the Tennessee Valley Authority (TVA) coal ash spill
site in Kingston, Tennessee. This case settled.
 2010, Gulf Oil Spill: I have lectured frequently on the topic at Continuing Legal
Education (CLE) meetings, I am cited in numerous national publications as well as
video appearances on LexisNexis, and I am consulting to numerous attorneys
representing property owners, business owners, and taxing authorities in the affected
areas, including the State of Louisiana. In July 2010, I was invited to speak to a
gathering of banking regulators in Washington, DC, regarding the collateral impacts
of the oil spill. I consulted with attorneys representing the State of Louisiana on their
damages stemming from the oil spill.

 2009, Chinese Drywall Multidistrict Litigation: I was retained by several attorneys to
consult on settlement matters, I inspected affected properties in both Louisiana and
Florida, and I delivered invited lectures to continuing legal education (CLE)
conferences in New Orleans.
 2009, Georgia: I consulted on a large class action regarding airborne contaminants
emanating from an animal processing plant. Our involvement in the case led to a rapid
settlement.
 2009, Louisiana: I am consulting and occasionally testifying on a series of oil field
contamination cases regarding toxic wastes left over from drilling activities.
 2009, Illinois: I am consulting on a mass tort involving an oil plume emanating from
a leaky pipeline running through a small, rural village. Affected properties include
several different categories of residences as well as nonresidential properties (improved
and unimproved) owned by the village and county governments.
 2009, Maryland: I consulted on a nitrate contamination matter affecting drinking water
wells of about a dozen rural residences, and I aided the claimants in achieving a
successful settlement of the case.
 2009, Missouri: I testified in the bellwether trial in Ogg v. Mediacom, a state class action
regarding fiber optic cable easement values.
 2008, Oklahoma: I opined on behalf of the plaintiffs in Bob Coffey et al. v. Freeport-
McMoRan on the question of whether or not, from a real estate analysis and appraisal
perspective, the matters at hand in this case could best be analyzed with a mass
appraisal model consistent with class certification. Our involvement in the case led to
a rapid settlement.
 2008, Los Angeles: I consulted on a pair of cases, both on class certification issues as
well as loss in value, in the town of Merced involving a variety of contaminants,
including heavy metals, carried by flood waters from a nearby manufacturing site.
Affected properties total over 500 and include a variety of residences.
 2007, West Virginia: I testified in the successful class certification of Perrine v. DuPont,
involving airborne contaminants emanating from a former zinc smelter and affecting
thousands of varying property types (including residential, commercial, and farm land).
 2006, Michigan: I consulted on, and offered an affidavit in support of, the successful
state court certification of the Henry v. Dow class action, involving water-borne
contaminants emanating from a plant on one of the tributaries of the Saginaw River.
 2005, Louisiana: I am continuing to consult and testify on a variety of cases stemming
from Hurricane Katrina. Most notable among these was Turner v. Murphy Oil, a class
action involving 6,700 properties (residences, mixed-use, and commercial) that
suffered an oil spill from a nearby refinery occurring 3 days after Katrina. After
demonstrating that Greenfield Advisors could separate the oil damage from the flood
damage, our clients were able to negotiate a settlement with the responsible parties. I
also consulted on the various Corps of Engineers levee breach cases, and I have
testified on a Parish-maintained levee breach case.

 2003, Louisiana: I testified in the class certification of Guillory et al. v. Union Pacific, a
case involving PCE contamination from a leaking tanker car. Affected properties
totaled in the hundreds and included a variety of residences and some nonresidential
properties.
7. I have been asked to opine on whether and how the economic damages alleged by the class
with respect to their residential real property within the Bullseye Plume (defined below) can
be efficiently and commonly assessed on a class-wide basis. I conclude that damages reflecting
diminished values can be analyzed systematically with an AVM that is supported or enhanced
by a contingent valuation study and case studies as explained below, and that damages for loss
of use and enjoyment can be efficiently and commonly assessed by using market rental values.
The materials I have relied upon to formulate my opinions are referenced herein.
SUMMARY OF EVENTS LEADING TO THIS CASE

8. I have reviewed the Second Amended Class Action Complaint filed in this action (the
“Complaint”), and the Answer thereto. In the Complaint, Plaintiffs allege that unfiltered
emissions from Bullseye Glass Co. have contaminated the air and properties in a portion of
inner Southeast Portland which has created a pollution “hotspot” in that neighborhood.
Complaint ¶¶ 4-5. Plaintiffs are owners and/or residents of real property within that
neighborhood, as of February 3, 2016 as defined more precisely below.
9. I understand that Plaintiffs seek to recover the damages they allege stem from the temporary
loss of use and enjoyment of their real property and the decrease in property value stemming
from the stigma in market perception of the affected properties.
10. In addition to the Complaint and Answer, I have reviewed: 1) news accounts provided to me
by counsel or available via internet searches concerning the Bullseye Plume that are dated on
or after February 3, 2016; and 2) certain documents produced in the litigation, as reflected
below.
11. The summary of relevant events that follows has been provided to me by Plaintiffs’ counsel:
 1974: Bullseye Glass Co. opens its facility at present location in Southeast Portland.
No pollution control technology is installed.
 1974-present: Bullseye creates glass using ingredients that include arsenic, cadmium,
lead, selenium, and chromium.
 Feb. 3, 2016: Public first learns of high arsenic, cadmium levels, in news report. 3
 Feb. 4, 2016: Bullseye temporarily suspends its use of arsenic and cadmium.4
3 Daniel Forbes, State Finds Alarmingly High Arsenic, Cadmium Levels Near Two SE Portland Schools The Portland Mercury
(Feb 3, 2016, 2:06 pm) http://www.portlandmercury.com/BlogtownPDX/archives/2016/02/03/arsenic-cadmium-
levels-near-two-se-portland-schools-are-alarmingly-high-state-finds
4Daniel Forbes, Bullseye Glass Has Suspended Use of Arsenic and Cadmium Because of Air Quality Concerns The Portland
Mercury (Feb 3, 2016; 10:58 am)http://www.portlandmercury.com/BlogtownPDX/archives/2016/02/04/bullseye-
glass-has-suspended-use-of-arsenic-and-cadmium-because-of-air-quality-concerns

 Feb. 19, 2016: State health officials warn people within a half mile of Bullseye to not
eat produce from gardens.5
 Mar. 3, 2016: Plaintiffs file initial Class Action Complaint.
 Mar. 9, 2016: State lifts warning on eating from gardens while urging precautions like
washing vegetables.6
 Mar. 29, 2016: Bullseye announces its pilot emission control system (“baghouse”) is
functioning.7
 May 4, 2016: Oregon Department of Environmental Quality (“DEQ”) sends
warning letter to Bullseye for violation of air emission opacity standards.
BE0005845.
 May 19, 2016: State issues cease and desist order to Bullseye in response to spikes in
lead levels in the nearby air. BE0002336.
 Aug. 9, 2016: Plaintiffs file Second Amended Class Action Complaint.
 Aug. 29, 2016: Bullseye resumes using heavy metals with installation of new
baghouse system.8
DESCRIPTION OF THE PROPOSED CLASS

12. On February 3, 2016, the United States Forest Service released the results of their moss study
to the public. For the first time, the citizens of Southeast Portland were able to learn about
the pollution they had been living with for years. The release of the moss study provided the
first indication of the nature and extent of the impact of the pollution on the neighboring
community.
13. Plaintiff seeks to certify two subclasses, an Owners Class and a Residents Class.
 All residents of the residential properties within the Bullseye Plume depicted in Figure
1 of the report of Dr. Andrew Gray as of February 3, 2016.
 All owners of the residential real properties within the Bullseye Plume depicted in
Figure 1 of the report of Dr. Andrew Gray as of February 3, 2016.
5Pat Dooris, Warning: Don't eat produce grown near toxic hot spots, KGW (Feb 19, 2016),
http://www.kgw.com/news/health/warning-dont-eat-produce-grown-near-toxic-hot-spots/49520386 See also Garden
Warning Map: http://projects.oregonlive.com/air-pollution/heavy-metals/garden-warning/
6
Press Release, Oregon Health Authority, New soil, cancer, urine test data show low risk for Portland residents (Mar 9,
2016), http://www.oregon.gov/oha/ERD/Pages/New-Soil-Cancer-Urine-Data-Shows-Low-Risk.aspx.
7 http://www.bullseyeglass.com/news/bullseye-factory-filtration-is-underway.html
8
Fedor Zarkhin, The Oregonian, Bullseye Glass back in business with new device to control toxic emissions (Sep. 8,
2016), http://www.oregonlive.com/environment/index.ssf/2016/09/bullseye_glass_back_in_busines.html

14. The class boundary is defined by the Gray Sky Solutions Bullseye Glass PM 10 Modeling Plume
dated November 16, 2016 (referred to in this report as the Bullseye Plume). There are 2,185
residential properties within or intersecting the Bullseye Plume. See Figure 1.

Figure
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10
15. A common factor in this case is the effect on the local real estate market, and in particular a
degree of stigma in market perceptions of the affected properties. Stigma is an adverse public
perception regarding a property—the identification of a property with a condition (e.g.,
environmental contamination, a grisly crime) that exacts a penalty on the marketability of the
property and may also result in a diminution in value. 9 It is likely that buyers of property in the
proposed class area will be or have been aware of contamination stemming from the Bullseye
operation. Stigma has been well documented as a common factor in the peer-reviewed real
estate literature (Mundy, 1992; Kilpatrick and Kummerow, 2006). 10 Beginning on February 3,
2016 there has been widespread media coverage of Bullseye Glass Company’s decades of
polluting the surrounding neighborhoods1112, which will have a negative effect on values, and
ultimately prices, of properties within the affected areas. Because of the magnitude and
toxicity of the heavy metals released by Bullseye, and a high degree of local concern, the
Bullseye pollution and any associated remediation efforts have continued to be covered and
reported in the media, which will continue to stigmatize the affected area.
MASS TREATMENT IN DETERMINATION OF DAMAGES TO REAL ESTATE

16. Using a mass appraisal system, an appraiser can assemble the data and mapping needed to
identify the properties and property owners within a proposed class area. The mass appraisal
system allows the appraiser to value the properties and assess the impacts on property values
through a coherent mapping of effects across the proposed class area. In addition, mass
treatment greatly reduces the administrative costs of valuing the properties individually and
estimating the damages.
17. From a real estate appraisal standpoint, mass appraisal provides an unbiased and efficient
means of valuation. The pattern of damages to affected properties is best analyzed by
considering the affected area as a whole.
18. A major factor supporting the use of mass appraisal in this case is the need to assemble,
analyze, and interpret a large body of data for credible and unbiased valuations. Individual-
property appraisal methodology requires a small dataset of comparable sales to be selected for
comparison purposes. By contrast, in mass appraisal it is common to use all property sales of
like kind—in this case, residential. By using the same set of residential sales transactions as
comparable sales, any bias that might be introduced when choosing comparable sales for a
single property is eliminated. Further, when not limited to small datasets, adjustment factors
are extracted from the market using statistical techniques instead of traditional judgment-based
methods.
9 Appraisal Institute. 2010. The Dictionary of Real Estate Appraisal, 5th Edition. Appraisal Institute, Chicago.
10 Mundy, Bill. 1992. “Stigma and Value.” The Appraisal Journal (January 1992) 60(1):7–13.
Kilpatrick, John, and Max Kummerow. 2006. “Stigma Revisited Again.” Presented at the 2006 American Real Estate
Society (ARES) conference.
11 Willamette Week. Bullseye Glass Violated State Rules When Disposing of Radioactive Waste.
http://www.wweek.com/news/2016/03/16/bullseye-glass-vilated-state-rules-when-disposing-of-radioactive-waste/
12 The Bulletin. Bullseye Glass Ordered to Stop Using Certain Air Pollutants.
http://www.bendbulletin.com/localstate/4351318-153/bullseye-glass-ordered-to-stop-using-certain-air

19. The process of comprehensively gathering, compiling, and geo-referencing data is complex
but necessary when simultaneously valuing thousands of properties either individually or en
masse. Extensive data cleaning and checking processes have been employed to eliminate the
errors and omissions that naturally occur in even the best data sets. This quality control process
requires time and expertise. If different analysts performed this work independently for
numerous individual owners, there would be severe challenges to ensure the consistency of
data, appraisal methods, and valuation conclusions across the many properties.
20. Analysis of large datasets to extract adjustments in a statistically robust way requires large sets
of “clean” data, or a dataset that removes all records of sales that are not arm’s-length
transactions or that contain incorrect data. This analysis is most efficient when one firm
conducts a mass appraisal; the cost can be spread among all the properties.
21. By using a mass appraisal model, the law of large numbers allows for variation among
conclusions of individual property values while having the aggregate of predicted values closely
track the aggregated true values.
22. Handling valuation efforts through a mass appraisal system will allow the achievement of
significant economies of scale.13 I will create a database for the entire proposed class area and
tentative proposed control areas, which will be used for “unimpaired” valuation of the affected
residences against which the diminution in value will be measured.
23. Various sources of data will allow for the determination of before and after (or unimpaired
and impaired) values on the properties in the proposed class area, thus allowing me to assess
damages according to the methods outlined by The Appraisal Foundation’s Uniform Standards
of Professional Appraisal Practice (USPAP). USPAP recommends that damages to property values
be determined by calculating the difference between the unimpaired and impaired values. The
unimpaired value is a property’s value before the environmental contamination event(s); the
impaired value is the value after the environmental contamination event(s). This follows the
guidance set forth in USPAP Advisory Opinion 9.
24. To separate the effects caused by the contamination from the general market trends, carefully
chosen control areas in the Portland area can be used to differentiate between these two
market variables. These tentative control areas will allow the valuation of the subject properties
as if the contamination had not occurred, as well as provide a baseline for the overall property
value trends in the greater metropolitan region. Separating the larger market trends from the
“noise” of individual transactions and contamination effects requires a holistic approach best
accomplished with a class-wide mass appraisal method.
25. Specialized expertise is required to determine the impaired values. As noted, Greenfield
Advisors has several decades of experience in similar cases and has contributed substantially
to the published literature, valuation theory, precedent cases, and valuation techniques
required for determination of impaired values. This specialized study is beyond the scope of a
conventional appraisal. The requirement for more in-depth analysis of impairment effects
13Throughout this document, I will refer to mass appraisal, hedonic regression models, multiple regression models, and
statistical analysis. For clarity, mass appraisal is a method approved by the Uniform Standards of Professional Appraisal Practice
to systematically value a large number of properties simultaneously. Hedonic regression and multiple regression models
are the most common techniques for conducting a mass appraisal.

argues for mass appraisal methods to obtain the efficiencies inherent in valuing many
properties at once. These mass appraisal methods are well accepted in the appraisal
community.
26. As this case progresses, I may find hybrid appraisal methods and additional data collection
helpful in finalizing values for properties with unusual features, title issues, etc., often thought
of as outliers that fall within a specified stratum. In past assignments, I have found that
properties best appraised with such hybrid methods have accounted for less than 2% of all
properties.
27. Mass appraisal allows for statistical testing of the amount and significance of a property
characteristic through use of possibly thousands of sales transactions. Therefore, my mass
appraisal allows for consistent valuation.
28. I propose, therefore, a mass appraisal approach involving use of existing data sources provided
by ATTOM Data Solutions, (ATTOM) and other data sources supplemented by our own data
collection activities, which I will discuss below. This methodology has proven successful in
many other similar situations, is fully consistent with applicable appraisal standards and will
provide for an efficient, effective, and accurate means for determining property values and
measuring diminution in value.
USPAP REQUIREMENTS FOR MASS APPRAISAL METHODS

29. USPAP defines a mass appraisal as “the process of valuing a universe of properties as of a
given date using standard methodology, employing common data, and allowing for statistical
testing.”14 In addition, USPAP Standards Rule 6-1 comments: “Mass appraisal provides for a
systematic approach and uniform application of appraisal methods and techniques to obtain
estimates of value that allow for statistical review and analysis of results.” This uniformity of
approach in ascertaining damages to multiple properties is consistent with the objectives of
fairness in the allocation of damages in litigation. Obviously, this mass appraisal approach is
far more efficiently applied to a class and is highly consistent with the objectives of class
treatment. A mass appraisal approach provides a means for ensuring consistency of treatment
across a large group of affected properties.
30. In response to the Savings and Loan crisis of the 1980s, the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 (FIRREA) was enacted. It created the Appraisal
Standards Board that adopted the original Uniform Standards of Professional Appraisal Practice
developed in 1986-87 by the Ad Hoc Committee on Uniform Standards. Since that time,
USPAP has developed into the document it is today. Due to the evolution of mass appraisal
and the use of AVMs in the appraisal industry, Standard 6 has been a part of USPAP since at
least 1990 and Advisory Opinion 18 Use of an Automated Valuation Model was added July 9,
1997. Advisory Opinion 37 will go into effect on January 1, 2018, which will provide further
guidance and support to appraisers on the use of AVMs.
14 The Appraisal Foundation. 2016. Uniform Standards of Professional Appraisal Practice 2016–2017 Edition. Definitions p. 4.

31. In carrying out a mass appraisal, the appraiser must “employ recognized techniques” for
specifying and calibrating property valuation models. 15
32. USPAP Mass Appraisal Standard 6 recognizes that available information may vary in local
circumstances and allows for variations in methods due to variations in available data. The
comment accompanying Standards Rule 6-5 includes the phrase “where applicable and
feasible” regarding systems for collecting and maintaining “ownership, geographic [i.e.,
location], sales, income and expense, cost, and property characteristics data.” The comment
to Rule 6-5 also suggests that data collection programs incorporate “a quality control program,
including checks and audits of the data to ensure current and consistent records.” These
requirements clearly argue for mass appraisal treatment to ensure consistency and quality
control with respect to both data and valuation models across the members of the proposed
class.
33. An individual approach, on the other hand, would probably mean a large number of individual
appraisers separately and independently valuing the thousands of properties in the proposed
class area. Under such circumstances, structural, temporal, and locational adjustments are
likely to vary widely across the set of proposed class properties based on each appraiser’s
subjective analysis. Further confounding the issue are the different skills sets and market biases
held by each of the large number of appraisers that would need to be employed to handle this
valuation assignment. In this situation, it is difficult if not impossible to see how consistency
of valuations and hence damage assessments could be achieved.
34. USPAP Standards Rule 6-7 mandates “testing procedures and techniques to ensure that
standards of accuracy are maintained.” The comment appended to Rule 6-7 states that:
… appraisers engaged in mass appraisal have a professional responsibility to
ensure that, on an overall basis, models produce value conclusions that meet
attainable standards of accuracy. This responsibility requires appraisers to
evaluate the performance of models, using techniques that may include but
are not limited to, goodness-of-fit statistics, and model performance statistics
such as appraisal-to-sale ratio studies, evaluation of hold-out samples, or
analysis of residuals.
35. This monitoring and evaluation of results implicitly recognizes the importance of consistency
across a study area, such as the proposed class area. Implementation of such quality control
measures is well documented in the mass appraisal literature
36. Regarding mass appraisal quality control and appraisal error analysis, our firm has performed
evaluation studies on mass appraisal models using the ratio statistics referred to in USPAP
Standards Rule 6-7. Implicit in ratio statistics analysis is that a large number of appraisals are
performed and available for comparison to sales prices. This implies a mass appraisal method.
37. The methods I have employed and will continue to employ for determining values have
resulted and will continue to result in superior accuracy, reliability, and consistency across the
proposed class. The process that I have used in this case currently includes the following steps:
15 USPAP Standards Rule 6-4 a, b, and c.

 Conducting data sampling and data verification to ensure accuracy, consistency, and
completeness.
 Describing the sources of data and the data collection and validation processes as
required by USPAP in a mass appraisal (Standard 6).
 Classifying the affected properties into appropriate strata (or subsets of the
population) by areas and property characteristics, and then testing candidate price-
affecting variables by the criteria suggested in Standards Rule 6-7.
 Locating and analyzing sources of data on the available property characteristics and
values for properties within the proposed class area. The data checking and verification
has achieved the level of quality control required by USPAP and will meet or exceed
the IAAO performance standards for accuracy and dispersion.
38. Individual property valuation methods typically rely on small samples of comparable sales (e.g.,
three in the case of the widely used Uniform Residential Appraisal Report [URAR]). 16
Estimates from small samples are subject to random and significant statistical variation
(Kilpatrick, 2010).17 The artful appraiser senses which data are suitable for analysis using
experience, local market knowledge, and conversations with persons familiar with the sale,
thereby reducing random error within the sample but at the expense of introducing bias in the
sample selection process. A mass appraisal method that looks at the broader geographical
pattern and incorporates spatial analysis techniques will result in more stable, scientifically valid
estimates of value impacts. Mass appraisal is better suited than individual valuations to sorting
out the “signal” from the “noise” with respect to value changes while accounting for the
effects of other property characteristics. When faced with real estate prices which are not well
distributed (as is usually the case), the mass appraisal can take the form of a maximum
likelihood estimator, that is consistent, asymptotically normal, and efficient (Kilpatrick,
2011)18.
RELEVANT LITERATURE
Mass Appraisal and Contamination
39. The effects of contamination on property value have been documented in the academic
literature for decades. About a quarter century ago, two seminal articles, Patchin (1988) 19 and
Mundy (1992),20 brought contaminated property valuation issues to the attention of the
16A standard form for reporting the appraisal of a dwelling; required by the major secondary mortgage purchasers. Also
known as Form 1004.
Kilpatrick, John A. 2010. “Appraisal Error Terms and Confidence Intervals.” Presented at the 2010 ARES annual
17
meeting. Note: This paper won the 2010 award for Best Paper in Real Estate Appraisal from the Appraisal Institute.
18Kilpatrick, John A., 2011, “Expert Systems and Mass Appraisal.” Journal of Property Investment and Finance 29-4/5, 529-
550
19Patchin, Peter, J. 1991. “Contaminated Properties – Stigma Revisited.” The Appraisal Journal (April 1991) 59(2):167–
172.
20 Mundy, 1992, “Stigma and Value.” The Appraisal Journal, (January, 1992), 7-13.

appraisal profession. Since that time, dozens, if not hundreds, of additional studies have been
conducted on the impacts of contamination and other negative factors on property values. 21
40. Braden (2010)22 recently noted that the economics literature on external impact of toxic
contamination has been dominated by hedonic property value studies. The past decade in
particular has indicated that economists prefer to use hedonic analysis to parse the influence
of contamination and, more broadly, various amenities in market analyses.
41. Empirical studies of the effects of soil contamination on property values have demonstrated
a negative relationship. For example, several economists conducted two empirical studies of
the effects of information disclosure on real estate transactions (Jenkins-Smith et al., 2002;
Berrens et al., 2003).23 They found that properties located adjacent to former smelters in
Corpus Christi and El Paso, Texas, experienced significant decreases in property values.
42. Analyses of larger affected areas led to similar findings. Ho and Hite (2004) 24 used a hedonic
price model to estimate the tradeoff between environmental and health risks and home values
in a large dataset of 755 counties in Arkansas, Alabama, Florida, Georgia, Louisiana,
Mississippi, North Carolina, South Carolina, and Tennessee.
43. Decker et al. (2005)25 examined Douglas County, Nebraska, the most populated of the five
counties in the Omaha metropolitan statistical reporting area. The authors used Toxics Release
Inventory (TRI) data as a proxy for environmental hazard and found a significant link between
release information and housing values. Of note is their finding that properties located within
3 miles of a former ASARCO smelter (which is now on the National Priorities List) were
reduced in value 24% to 25%.
44. These and many other academic studies focus on measuring the diminution of real estate
values because of contamination. The review of articles that follows focuses on environmental
stigma as related to real estate and values.
21
For a list of studies, see Simons, R., and J. Saginor. 2006. “A Meta-Analysis of the Effect of Environmental
Contamination and Positive Amenities on Residential Real Estate Values.” Journal of Real Estate Research 28:71–104.
Braden, John B., Xia Feng, Luiz Freitas, and DooHwan Won. 2010. “Meta-Function Transfer of Hedonic Property
22
Values: Application to Great Lakes Areas of Concern.” Agriculture and Resource Economics Review 39(1):101–113.
23Jenkins-Smith, Hank C., Carol L. Silva, Robert P. Berrens, and Alok Bohara. 2002. “Information Disclosure
Requirements and the Effect of Soil Contamination on Property Values.” Journal of Environmental Planning and Management
45(3):323–339.
Berrens, Robert P., Alok K. Bohara, Hank C. Jenkins-Smith, and Carol L. Silva. 2003. “The Effect of Environmental
Disclosure Requirements on Willingness to Pay for Residential Properties in Borderlands Community.” Social Science
Quarterly, June 2003, 84(2):359–378.
24Ho, Sau Chau, and Diane Hite. 2004. “Economic Impact of Environmental Health Risks on House Values in
Southeast Region: a County-Level Analysis.” Presented at the American Agricultural Economics Association Annual
Meeting, Denver, Colorado, August 1, 2004.
25Decker, Christopher S., Donald A. Nielsen, and Roger P. Sindt. 2005. “Residential Property Values and Community
Right-to-Know Laws: Has Toxics Release Inventory Had an Impact?” Growth and Change (Winter 2005) 36(1):113–133.

Stigma
45. A common term in appraisal and real estate economics literature, stigma refers to a very specific
quantitative mechanism by which value is affected by either nearby or previous negative
externalities. Many states have defined stigma with respect to the valuation of contaminated
property as, “a perception that property value is negatively affected despite contamination
clean-up.”26
46. The concept of stigma partially explains the negative market effects related to environmental
impairment. A large portion of the prominent literature on the valuation of environmentally
impaired property defines, explores, and quantifies stigma.
47. The process of stigmatizing something (originally, a person, but now also applied to real estate)
applies a label to mark its deviant status. This marking typically has devastating consequences
on emotions, thoughts, and behaviors. Many characteristics are applied to the perceived
deviant person or thing: they are flawed, blemished, discredited, spoiled, or stigmatized. The
mark may or may not be physical; it may be embedded in behavior, biography, ancestry, or
group membership.27
48. Environmental stigma results from an undesirable event that disrupts the balance of an
environmental system.28 Blame is associated with this disruption. When environmental
features are perceived as repellent, upsetting, or disruptive, they are stigmatized as undesirable.
Environmental stigma can result from a number of causes. Technologies, such as petroleum
processing, nuclear power plants, and waste processing, may be a source of environmental
stigma. Activities, such as the development of hazardous storage sites, or the underground
storage of petroleum products, may be another source. A third source may be the character
of products themselves, such as petroleum-based products, chemicals, solvents, and
agricultural products associated with health risks.
49. The consequences of an environmental stigma can be direct or indirect. Direct consequences
of various stigmas include decreased occupancy, a lower market price, reduced sales volume,
less favorable terms of lending or sale, and increased marketing time for single-family
residences. Indirect consequences include the general exodus of residents from an area
affected by contamination, regardless of whether their homes are directly affected by the
contamination (e.g., Love Canal, New York, and Times Beach, Missouri).
50. Stigma contributes to the fact that real property market behavior is often influenced as much
by perceptions as it is by reality. Richard Roddewig, an instructor of the Appraisal Institute
who created its environmental seminar, has stated, “perceptions in the marketplace may be as
26 Mundy, Bill. 1992a. “Stigma and Value.” The Appraisal Journal 60(1):7–13.
27Jones, Edward E., A. Farina, A.H. Hastorf, Hazel Markus, Dale T. Miller, and Robert A. Scott. 1984. Social Stigma: The
Psychology of Marked Relationships. New York: W.H. Freeman and Co. pp. 4–7.
Edelstein, Michael R. 1988. Contaminated Communities: The Social and Psychological Impacts of Residential Toxic Exposure.
28
Boulder, Colorado: Westview Press. p. 6.

important as the reality of whether the contamination or substance is actually physically
affecting surrounding property.”29
51. Stigma underscores the disconnection between actual contamination or risk and perceived
contamination or risk. Toxicologists have identified cause and effect relationships between
various biological substances and diseases; however, human behavior often is not based on
these causal relationships. As Roddewig noted, perceptions can have a substantial effect on
real estate market behavior, and therefore, on price and value. 30
52. The mechanism for environmental stigma is embedded in culture. For example, Mauss (1950)
described a belief, widespread in many cultures, that things in contact with each other influence
each other through the transfer of some of their properties via an “essence.”31 Thus, “once in
contact, always in contact,” even if that contact (exposure) is brief. Nemeroff and Rozin (1994)
referred to this belief as a “law of contagion” and showed that it is common in our culture. 32
The implication is that even a minute amount of a toxic substance in one’s food is perceived
as making the food toxic; any amount of poison makes a substance poisonous; any amount of
a carcinogen imparts carcinogenicity, and so on. The “essence of harm” that is contagious is
typically referred to as a contamination. Erickson (1990, p. 122) explained:
Being contaminated has an all-or-none quality to it, similar to being alive, or
pregnant. When a young child drops a sucker on the floor, the brief contact
with “dirt” may be seen as contaminating the candy, causing the parent to
throw it away rather than washing it off and returning it to the child’s
mouth.33
This all-or-none quality, irrespective of the degree of exposure, is evident in Erickson’s
observation that “to be exposed to radiation or other toxins…is to be contaminated in some
deep and lasting way, to feel dirtied, tainted, corrupted.”
53. Kraus et al. (1992) explained, “A contagion or contamination model is obviously very different
from the scientist’s model of how contact with a chemical induces carcinogenesis or other
adverse effects.”34
29Roddewig, Richard. 1996. “Stigma, Environmental Risk and Property Value: Ten Critical Inquiries.” The Appraisal
Journal 64(4):375–387.
Roddewig, Richard J. 1999. “Environment and the Appraiser – Classifying the Level of Risk and Stigma Affecting
30
Contaminated Property.” The Appraisal Journal 67(1):98–102.

31 Mauss, Marcel. The Gift, first published in 1950.
32Nemeroff and Rozin overview Fraser’s and Mauss’s theories as a basis to develop their theory on the “law of
contagion.” Nemeroff, Carol, and Paul Rozin. 1994. “The Contagion Concept in Adult Thinking in the United States:
Transmission of Germs and of Interpersonal Influence.” Ethos 22(2):158–186.
33Erickson, Kai. 1990. “Toxic Reckoning, Business Faces a New Kind of Fear.” Harvard Business Review, January-
February, pp. 118–126.
Kraus, Nancy, Torbjorn Malmfors, and Paul Slovic. 1992. “Intuitive Toxicology: Expert and Lay Judgments of
34
Chemical Risks.” Risk Analysis 12(2):215–232.

54. A number of factors influence the degree of stigma. These factors were first outlined by
Mundy (1992),35 and later by Kilpatrick et al. (2005).36 Mundy noted that while he was the first
to cite these factors in valuation literature, the original authorship is a sociology study. Greater
stigma occurs when the levels of the factors below are high. 37
1. Disruption – would the contamination alter a given person’s day-to-day behavior?
2. Concealability – is the contamination noticeable or hidden?
3. Aesthetic Effect – can the contamination be seen, felt, or smelled?
4. Responsibility – is someone or some company specifically shouldering the blame?
5. Prognosis – what is the severity and persistence of the contamination?
6. Peril – can the contamination affect the health of humans?
7. Fear – how is the risk perceived?
8. Involuntariness – are the property owners themselves innocent in this
contamination?
9. Media Exposure – has media coverage affected perceptions of risk?
55. Stigma effects can be wide-ranging. For instance, when a buyer is well versed in the present
and future effect of the contamination, the price of a home will capture both the value of
foregone rents and expected capital gains (financial), as well as the satisfaction and comfort of
ownership (nonfinancial). At the extreme, stigma affects the nonfinancial benefits of home
ownership (recall Edelstein’s “inversion of home” principle in which a home goes from a place
of security and identity to one of danger and defilement). Stigma can so overwhelm the
financial benefits of home ownership that the property rights can be rendered worthless.
56. Perhaps the earliest references to stigma as a quantitative concept in real estate economics
appear in studies by Patchin (1991) and Mundy (1992a).38 Mundy’s study differentiated
between the cost to cure real risks (i.e., full remediation) and the costs associated with
perceived risks (i.e., stigma). The “cost-to-cure” is an out-of-pocket expense paid by the
property owner or other responsible party to restore a property to its pre-contamination
condition; stigma manifests in property value loss independent of the cost-to-cure. For
example, a property that is restored to its pre-contamination condition may continue to suffer
diminution in value due to risk perception (stigma).
57. Patchin noted that the decline in market value of a contaminated property may exceed the
cost-to-cure, even when that cost-to-cure is well defined.39 Building on this theme, Mundy
35 Mundy, Bill. 1992a., op cit.

36Kilpatrick, John A., Ronald Throupe, Bill Mundy, and Will Spiess. 2005. “Valuation of Impaired Property.” Chapter 6
in When Bad Things Happen to Good Property, Robert A. Simons. Washington, DC: Environmental Law Institute.
37 See Edelstein, 1988, Contaminated Communities, p. 6.
38 Patchin, Peter J. 1991. op cit.
Mundy, Bill. 1992a, op cit.
39 Patchin, Peter J. 1988. “Valuation of Contaminated Properties.” The Appraisal Journal 54(1):7–16.

(1992a) was one of the first to outline the value paradigm for contaminated property damages:
he argued that the value “before” or “clean” minus the value “after” or “dirty” is the
appropriate measure.40 From a mathematical perspective, this difference should represent the
cost-to-cure. However, as he pointed out, in practice properties frequently sell for less than
this cost-to-cure difference; he ascribed this disparity to the effect of stigma. In Mundy’s
framework, stigma is directly related to the level of uncertainty or risk associated with the
contamination.
58. Mundy (1992b) followed this theme by outlining two effects of stigma: an income effect and
a marketability effect.41 The income effect measures the lost value (or income, in the case of
nonresidential properties) resulting from the contamination. The marketability effect accounts
for the losses stemming from additional time-on-the-market, either to rent or to sell. Kilpatrick
et al. (1999) built on this marketability theme and showed that opportunity costs resulting
from increased time on the market may in fact exceed cost-to-cure and income-effect stigma. 42
59. Muldowney and Harrison (1995) demonstrated that perception of value diminution (loss) can
result in an actual value diminution.43 They showed that perceptions of value diminution result
from stigma, which is generated by uncertainty, and that a simple contamination problem may
have an easily quantifiable cost and a short time to cure. However, they noted that, “As the
complexity of the contamination increases, the level of uncertainty and perceived risk rises.”
This can be seen in the uncertainty of costs and duration of the remediation processes. Similar
conclusions were reached by Payne et al. (1987)44 in their analysis of a former industrial site in
the Chicago area. They concluded that it is the perception or fear associated with a hazardous
site that is ultimately reflected in property values.
60. Gluck et al. (2000) pointed out that stigma is not a mechanical exercise of subtracting impaired
value from unimpaired value and assigning a value above and beyond costs. 45 Rather, it
involves consideration of legal and environmental factors in arriving at a well-reasoned and
supportable opinion of stigma.
61. McCluskey and Rausser (2003) argued that both temporary and long-term stigmas are possible
equilibrium outcomes after the discovery and cleanup of contamination.46 Their study focused
on the RSR smelter in Dallas, Texas, and they concluded that a long-term stigma remained
40 Mundy, Bill. 1992a. op cit.

41 Mundy, Bill. 1992b. “The Impact of Hazardous Materials on Property Values.” The Appraisal Journal 60(2):155–162.
42Kilpatrick, John A., Douglas C. Brown, and Ronald C. Rogers, 1999. “The Performance of Exterior Insulation Finish
Systems and Property Value.” The Appraisal Journal 67(1):83–88.
Muldowney, Timothy J., and Kendall W. Harrison. 1995. “Stigma Damages: Property Damage and the Fear of Risk.”
43
Defense Counsel Journal 62(4):525–538.

Payne, B.A., S. Jay Olshansky, and T.E. Segel. 1987. “The Effects on Property Value of Proximity to a Site
44
Contaminated with Radioactive Waste.” Natural Resources Journal 27:579–590.

Gluck, Allan, Donald Nanney, and Wayne Lusvardi. 2000. “Mitigation Factors in Appraisal and Valuation of
45
Contaminated Real Property.” Real Estate Issues, Vol. 25, No. 2, Summer 2000.
46McCluskey, Jill J., and Gordon C. Rausser. 2003. “Stigmatized Asset Value: Is it Temporary or Long-Term?” The
Review of Economics and Statistics 85(2):276–285.

around the subject area. Buyers of homes in the area continued to demand discounts for
property, even though the area had been remediated. As a result, the neighborhood was
becoming less attractive to higher-income buyers and more affordable to lower-income
families. The authors characterized this change in neighborhood as long-term stigma.
62. Messer et al. (2006) investigated the psychology behind stigma and Superfund sites. 47 They
found that actions by authorities, even those leading to clean up, tended to exacerbate risks
and stigma. The authors also found that owners and residents of contaminated areas tended
to “medicalize” the risk of the pollution. Their literature review revealed another interesting
phenomenon, originally noted by Kunreuther and Slovic (2001), of the “social amplification
of original risks” due to the informal spread of information, both factual and otherwise,
throughout the community.48
63. Kilpatrick, et al. (1999) outlined a quantitative model for measuring the loss in value of
income-producing property due to stigma effects; increases in market-driven capitalization
(cap) rates reveal these stigma effects.49 He discussed four factors that affect the value of
income-producing property due to contamination: (1) reduction in net operating income,
(2) actual cost-to-cure, (3) ongoing increases in maintenance, and (4) stigma (increases in cap
rates). In his model, slight increases in cap rates actually overwhelm the other three factors as
a component of value diminution or loss. Kilpatrick concluded that under many
circumstances, stigma effects are actually the greater portion of value losses to property
owners.
Loss of Use and Enjoyment
64. The loss of Use and Enjoyment (U&E) analysis proceeds from an economic perspective of
the losses attributable to the loss of the use and enjoyment of one’s property. These economic
calculations can be performed by someone who is well-versed in economic theory, statistics,
and econometrics. As a large number of states mandate that U&E losses be computed using
rental values, we use that as a guiding principle here. This analysis is particularly useful when
U&E losses must be computed for individual properties that 1) have a temporary loss of U&E
and 2) are not currently rented (i.e., owner-occupied housing).
65. Adverse effects can be classified into those related to the “use” of a dwelling and those related
to the “enjoyment” of a dwelling. We consider “use” to be a component of occupancy that
compromises or requires an adjustment on the part of the individual. For example, a
homeowner with a contaminated private well adjusts to this circumstance by purchasing
bottled water. Limitations or changes affecting “enjoyment” could potentially include an
inability to garden or entertain at one’s home. Social lives may be restricted as well, as when
parents are reluctant to have their children meet friends who live in contaminated properties
47Messer, Kent D., William D. Schulze, Katherine F. Hackett, Trudy A. Cameron, and Gary H. McClelland. 2006. “Can
Stigma Explain Large Property Value Losses? The Psychology and Economics of Superfund.” Environmental and Resource
Economics 33:299–324.
48Kunreuther, Howard, and Paul Slovic. 2001. “Coping with Stigma: Challenges and Opportunities.” pp. 269–280 in
Risk, Media and Stigma – Understanding Public Challenges to Modern Science and Technology, edited by J. Flynn, P. Slovic, and H.
Kunreuther. London: Earthscan.
49 Kilpatrick, John A., et al.1999. op cit.

for fear that their children’s health may be affected. One might also view restrictions put in
place by local governments (for example, restrictions on digging in the soil placed on
residential properties affected by surface or subsurface soil contamination), the inability to use
groundwater, or other limitations as a loss of the use and enjoyment of the property.
METHODS FOR DETERMINING VALUE

Contingent Valuation and Focus Groups
66. Surveys and focus groups are two methods that can be used for interpreting individuals’
perceptions and beliefs on a given subject. These methods, when employed properly, allow
market participants to directly inform researchers of their opinions and beliefs on a given
topic.
67. Contingent valuation (CV) is a survey-based technique sometimes used by researchers to
directly measure individuals’ stated preferences and values for environmental goods. Peer-
reviewed research has used this method to value real property resources. 50 The technique is
used to analyze market participants’ willingness to pay for a positive amenity or willingness to
accept a negative amenity through compensation.
68. Debate on the usefulness of the CV survey took center stage following the 1989 Exxon Valdez
oil spill, as the government attempted to value all losses due to the incident. As the
investigation of damages proceeded, the National Oceanic and Atmospheric Administration
(NOAA) commissioned a panel of experts consisting of Nobel laureates and economists to
analyze the merits of the CV method. These experts, known as the Blue Ribbon NOAA Panel,
concluded that “CV studies can produce estimates reliable enough to be a starting point of a
judicial process of damage assessment,” 51 and that it “contains information that judges and
juries will wish to use, in combination with other evidence, including the testimony of expert
witnesses.”52 The Blue Ribbon NOAA Panel acknowledged at the time that CV studies must
follow strict guidelines to produce reliable results, stating that respondents must “be carefully
informed about particular environmental damage to be valued, … the full extent of substitutes
and undamaged alternatives available, … the payment vehicle should be presented fully and
clearly, …[and] with the relevant budget constraint emphasized.”53 The panel also listed many
technical guidelines to follow while preparing CV surveys, 54 though it concluded “as in all
cases, the more closely the guidelines are followed, the more reliable the results will be. It is
not necessary, however, that every single injunction be completely obeyed; inferences accepted
50Lipscomb, C.A., M. Kummerow, W. Spiess, S. Kilpatrick, and J.A. Kilpatrick. 2011. “Contingent Valuation and Real
Estate Damage Estimation.” Journal of Real Estate Literature 19(2):283–305.
51 Arrow, Kenneth, Robert Solow, Paul R. Portney, Edward E. Leamer, Ray Radner, Howard Schuman. 1993. The Report
of the NOAA Panel on Contingent Valuation. January 11, 1993. p. 44. Accessed September 11, 2014 at
http://www.darrp.noaa.gov/library/pdf/cvblue.pdf.
52 Id., p. 45.
53 Id., p. 43.
54 Id., Section III.

in other contexts are not perfect either.”55 It is clear that the United States government accepts
the CV method as a way to measure economic damages.
69. In the years since the Blue Ribbon NOAA Panel, the use of surveys has become well
established in the appraisal literature. McLean and Mundy (1998), Mundy and McLean (1999),
and McLean, Kilpatrick, and Mundy (1999) all establish the fundamental principles for the use
of surveys in complex real estate appraisals, including appraisals of contaminated or otherwise
impaired properties.56 Also, to provide researchers with a checklist of items to address in their
surveys, Diamond (2011) laid out a series of questions that surveys need to address when they
are being used for litigation purposes. 57
70. In July 2016, my staff conducted a focus group in Portland. The contamination scenario
presented and the questions employed in the CV study were first presented to a group of seven
individuals from across the Portland area during the focus group session. The focus group
was used to test the survey instrument to ensure that the contamination scenario described
and the survey questions asked were clearly understood and unambiguous. Then, in December
2016, I administered and deployed a CV Survey regarding contamination from Bullseye Glass
and its effect on property values within the affected area in the city of Portland, using
information that was available to me at the time it was administered. In that survey, market
participants were asked about their opinions on purchasing or selling a home with
contamination.
71. The results of the CV survey provide valuable insight about the opinions of Portland
homebuyers with respect to homes affected by contamination such as that at issue here and
the potential for loss in property value. These results are consistent with my prior experience,
case studies, and peer-reviewed literature that demonstrate the existence of stigma surrounding
contaminated properties, and inform my opinion about the percentage of diminution in value
suffered by properties within the Bullseye Plume. The results of the CV study indicated a 25
to 33 percent diminution in property values as a result of contamination similar to Bullseye.
The diminution percentage would be applied to the unimpaired values (defined as prior to the
announcement of the contamination) to determine the post contamination impaired value of
the affected properties as determined by the AVM defined below. The difference between
the unimpaired values and the impaired values would be the damages suffered by the Owners
subclass as a result of the contamination. For example, assuming a diminution in value of 30%,
a property in the affected area that has an unimpaired market value of $300,000 (on the day
prior to the announcement of the contamination) would have an impaired value of $210,000
(on the day of the announcement of the contamination). Damages due to contamination
55 Id., p. 44.
56McLean, David G., and Bill Mundy. 1998. “The Addition of Contingent Valuation and Conjoint Analysis to the
Required Body of Knowledge for the Estimation of Environmental Damages to Real Property.” Journal of Real Estate
Practice and Education 1(1):1–19.
Mundy, Bill, and David McLean. 1999. “Using the Contingent Value Approach for Natural Resource and Environmental
Damage Applications.” Appraisal Journal 66(3):290–297.
McLean, David, John Kilpatrick, and Bill Mundy. 1999. “Summation of Evidentiary Rules for Real Estate Experts
Mandated by Daubert v. Merrell Dow Pharmaceuticals, Inc.” Real Estate Issues 24(3):24–33.
Diamond, Shari S. 2011. “Reference Guide on Survey Research.” pp. 359–424 in Reference Manual on Scientific Evidence,
57
Third Edition. Federal Judicial Center. Washington, DC: National Academies Press.

would be $90,000 or 30% of its unimpaired value. This is true regardless of whether the
property has appreciated in value over time.
Automated Valuation Model (AVM)
Data Sources
72. The proposed subclasses are for owner and residents of residential real property within the
Bullseye Plume. Development of a database for an AVM involves gathering property
characteristic data, transaction data, and geographic information systems (GIS) data. As a
result, acquiring and combining various types of data for multiple jurisdictions can be a
laborious and expensive process. However, by combining data from these sources, credible,
consistent, and accurate unimpaired values on the real estate within the proposed class can be
accurately calculated. For this matter, property characteristic and transaction data was obtained
from the data aggregator ATTOM, which specializes in the aggregation of real estate data and
is often held to be one of the prime suppliers of U.S. real estate information. 58
73. I will utilize two data sets from ATTOM for my analysis: recorder (or deed/sales) data and tax
assessor data. For purposes of this report, I will utilize data for only Multnomah County,
Oregon. The data include information on the most recent sale prices and dates for properties
across the county, property characteristics (e.g., square footage, bathrooms, age, lot size), and
location on a county-by-county basis. Prior to utilizing these data, my staff and I ensured that
it was both comprehensive and representative. I conclude that it is preferable to use data
provided by ATTOM rather than gathering data from the county recorder assessor and the
multiple listing services (MLSs). I address the representativeness of the data in the model
validation process.
74. ATTOM data includes latitude and longitude coordinates, which negates the need to utilize
GIS to geocode location. These coordinates can be used to precisely measure the location of
the plaintiff properties and their proximity to comparable homes. The ATTOM data also
includes parcel data, which is used to further verify the exact location of properties.
75. After a preliminary round of valuation testing, “on the ground” verification and collection of
additional data may be warranted. I anticipate collection of these data through use of a trained
group of individuals under the supervision of Greenfield Advisors staff and with additional
input and guidance from local appraisers experienced within Multnomah County.
76. Additionally, GIS data was sourced through the Multnomah County Regional Land
Information System (RLIS). The RLIS data portal has a large quantity of free and subscription
based GIS data that covers all of Multnomah County. 59
58ATTOM claims to possess data concerning more than 150 million properties. This is comparable to the data cache
held by leading residential real estate data broker CoreLogic (147 million).
See their respective fact sheets:
http://www.attomdata.com/leadership/
http://www.corelogic.com/about-us/data.aspx#container-RealEstate/.
59 https://multco.us/gis/metros-regional-land-information-system-rlis.

77. Analyzing this data across the proposed class will provide consistent and cost-effective means
of determining damages.
Model Design and AVM Testing
78. The mass appraisal model I will use takes the form of an automated valuation model (AVM),
which is a computer program that employs statistical models to ascertain objective and
accurate estimates of the market value of real property.60 The Appraisal Standards Board
describes an AVM as “a computer software program that analyzes data using an automated
process.”61 AVMs have been used in the industry since the early 1990s to value residential
property and, when properly designed, validated, and applied, AVMs can provide a statistically
accurate measure of property value when sufficient reference data are available. 62 The
Appraisal Standards Board recognizes AVMs, when used competently by a trained and
knowledgeable appraiser, as an appropriate tool for performing appraisals. 63 AVMs can be
designed or tailored to accommodate different property types (e.g., single-family residences,
condominiums, townhouses, and commercial properties), at different locations (e.g., regions
of the country, regions within a state, and even individual neighborhoods), and at different
points in time (e.g., present or retrospective). For this assignment, I tailored the Greenfield
AVM to establish unimpaired values for the subject properties within the Bullseye Plume.
Additional Methods for Determining Value Impairment
79. Several additional techniques can be employed to determine impaired values; that is, the fair
market value of the properties in the “after” state. Additional methods I will employ to
determine impaired values may include but are not limited to surveys and case studies.
80. I have also already begun a preliminary analysis of residential transactions in the
neighborhoods closest to the affected neighborhoods as they compare to transactions in the
larger City of Portland. While this analysis is currently at a very early stage, certain issues are
evident and strongly suggest further lines of investigation in preparation for the merits phase
of this case.
81. The transactions in the affected areas are best analyzed systematically, as any pricing trends
are best understood on a broad, systematic basis, and the availability of both ATTOM data
and transactional data certainly supports the use of efficient mass-valuation methods. In
summary, my early-stage analysis of transactions in this market supports the use of holistic,
mass-appraisal modeling.
60 USPAP 2016-2017, at 121 (Advisory Opinion 18).

61 Id.
Kirchmeyer, James, and Peter Staas. 2008. AVMs 201: A Practical Guide to the Implementation of Automated Valuation
62
Models at 24–25.
63 USPAP 2016-2017, at 123 (Advisory Opinion 18).

Case Studies
82. I also intend to review case studies in this matter that are summaries of similar situations from
around the country. These studies are derived from published literature and other sources that
I deem reliable. The use of case studies is a common method in the social sciences and
particularly in real estate analysis. Economic analysis—or specifically in the case of this
analysis, property valuation—is a fundamental exercise in market behavior and how a market
responds to change. Because the market is composed of individuals interacting in their own
best interest, both qualitative and quantitative conclusions are essential to forming overall
conclusions.
83. I will thus utilize case studies, including legal cases, as additional evidence to inform my value
opinions. Legal cases provide appraisers with a wealth of information on a variety of appraisal
issues, including takings, assessment disputes, and property values, among others. Legal cases
are an additional type of information, readily available to the public and the appraiser. Where
other market information is in short supply, legal cases can be especially helpful. In an appraisal
report for litigation, consideration of legal cases can help inform the intended users (clients,
reviewing appraisers, and the jury) of “apples to apples” situations, providing facts about
property value loss, and displaying additional avenues for appraisers to explore in making their
market value determinations. While legal cases need not be included in every appraisal report,
they are useful to demonstrate precedent and to provide information in complex matters.
Rulings and settlements are, in effect, normative evidence and data for the appraiser to
consider.
84. In this dynamic industry of complex valuation assignments, appraisers must constantly seek
to update their knowledge and skills and develop new methods and techniques to meet new
circumstances.64 Using case studies in the valuation analysis of properties provides important
insight into how the market has behaved in similar situations. I considered a broad range of
case studies before narrowing my focus to those that shared the most commonality with the
facts of this case.
CONCLUSIONS
85. The following is a summary of my opinions:
 My expertise and experience in valuation has shown that mass treatment for
determining the real property values of the residential properties within the Bullseye
Plume, using mass appraisal methods that apply an AVM, will be more accurate, less
expensive, and faster than approaching the valuation of proposed class properties
through individual appraisals by a large set of human appraisers.
 USPAP, the governing paradigm of the appraisal profession, recognizes mass appraisal
by means of automated valuation as an accepted method for valuing a large collection
of properties. USPAP Standards Rule 6-7 requires an appraiser to evaluate the
Appraisal Standards Board. 2014. Uniform Standards of Professional Appraisal Practice, 2014–2015 Edition, Comment to
64
USPAP Standards Rule 1-1(a). The same is true for mass appraisal [see the Comment to USPAP Standards Rule 6-1(a)].

performance of their mass appraisal methods, to ensure that his or her model meets
attainable standards of accuracy. The peer-reviewed appraisal literature
overwhelmingly supports the use of multiple regression analysis (in this case taking the
form of an AVM) as a method for valuing large collections of properties.
 Since I have used an AVM in other cases not related to this matter, I am aware that
the necessary data exists in good quality and quantity to show sufficient statistical
performance across Multnomah County. Data for this matter has been obtained
through the data aggregator, ATTOM. Based on the information that has been
provided to me, I understand that there is sufficient data to complete this assignment
for the city of Portland and Multnomah County.
 In sum, given the facts of the case, the availability of data, and the professional
standards and wealth of academic studies that support the mass appraisal of the
properties in this situation, it is my opinion, to a reasonable degree of scientific
certainty based on the above factors as well as my expertise and experience, that the
approaches discussed in this affidavit can and should be used for valuation and damage
assessment purposes in this case, including damages attributable to loss of use and
enjoyment.
 I reserve the right to update and alter my opinions in this matter based on the
availability of any new or unknown information.

CERTIFICATION
I certify that, to the best of my knowledge and belief:
 The statements of fact contained in this affidavit are true and correct.
 The reported analyses, opinions, and conclusions are limited only by the reported
assumptions and limiting conditions and are my personal, impartial, and unbiased
professional analyses, opinions, and conclusions.
 I have no present or prospective interest in the properties that are the subject of this
affidavit and no personal interest with respect to the parties involved.
 I have performed no services, as an appraiser or in any other capacity, regarding the
properties that are the subject of this affidavit within the 3-year period immediately
preceding acceptance of this assignment.
 I have no bias with respect to the properties that are the subject of this affidavit or to the
parties involved with this assignment.
 My engagement in this assignment was not contingent upon developing or reporting
predetermined results.
 My compensation for completing this assignment is not contingent upon the development
or reporting of a predetermined value or direction in value that favors the cause of the client,
the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a
subsequent event directly related to the intended use of this appraisal.
 My analyses, opinions, and conclusions were developed, and this affidavit has been prepared,
in conformity with the Uniform Standards of Professional Appraisal Practice.
 I have not made a personal inspection of the individual properties in this matter, but have
made an inspection of the impacted area.
 Gabriel Bolden, Jessica Kenyon, Dr. Clifford A. Lipscomb and Linda Tayntor of Greenfield
Advisors provided me with significant professional assistance in the conduct of this
assignment.
 The reported analysis, opinions, and conclusions were developed and this affidavit has been
prepared in conformity with the Code of Professional Ethics and Standards of Professional
Appraisal Practice of the Appraisal Institute, of which I am an MAI Designated Member.
 The use of this affidavit is subject to the requirements of the Appraisal Institute relating to
review by its duly authorized representatives.
 As of the date of this affidavit, I have completed the continuing education program for
Designated Members of the Appraisal Institute.
 As of the date of this affidavit, I have completed the Standards and Ethics Education
Requirements for Designated Members of the Appraisal Institute.

I hereby declare that the above statement is true to the best of my knowledge and belief, and
that I understand it is made for use as evidence in court and is subject to penalty for perjury.
GREENFIELD ADVISORS INC.
John A. Kilpatrick, PhD, MAI, FRICS
Oregon State Certified General Appraiser No. C000646

Exhibit 9
HAWTHC
LADD'S
ADDITION
4<
BROOKLYN
WOO
Exhibit 10
Portland's toxic air: Will young family have to leave home?
www.oregonlive.com /portland/index.ssf/2016/02/portlands_toxic_air_young_fami.html
By Lynne Terry lterry@oregonian.com The Oregonian/OregonLive
More than 6,000 people live within a half-mile of Bullseye Glass, a company at the center of a hot spot for toxic
metals pollution.
Air monitoring near the Southeast Portland company found an average arsenic level that was nearly 159 times the
state's safety goal. The average level of cadmium was 49 times higher. The monitoring also detected chromium but
didn't differentiate between hexavalent chromium, a carcinogen, and chromium 3, a necessary nutrient.
The U.S. Forest Service first identified the presence of the heavy metals in moss tests near Bullseye and Uroboros
Glass in North Portland. The agency informed the state Department of Environmental Quality last May of a potential
health threat.
Five months later, the environmental agency deployed an air monitor near Bullseye and released the results earlier
this month.
After a request by environmental regulators, Bullseye subsequently suspended its use of cadmium, arsenic and
chromium, and Uroboros stopped using cadmium and chromium. Uroboros hasn't used arsenic for years.
While the state hasn't done air tests around Uroboros, it has used the results of the air testing near Bullseye to
extrapolate that Uroboros is the source for elevated cadmium levels for the hot spot in its area.
The environmental agency is testing soil around both companies to determine whether there are elevated deposits
and assess health risks. In the meantime, state health officials have warned people within a half-mile of both glass
factories not to eat produce from their gardens until further notice.
For now, many people who live nearby are waiting in suspense to see if they should worry and how they should
respond.
***
THE YOUNG FAMILY
When Bill Crawford bought the 1920 Craftsman-style home in Southeast Portland seven years ago, he expected it
would stay in his family forever.
He converted the basement into a daylight apartment for his 81-year-old mother. Crawford and his wife Pinn had
two children. They filled the house with the joyful chaos of scattered books and toys.
They planted an organic vegetable garden, collected rainwater and raised chickens that produced brown and white
eggs. In summer they made tarts, pies and jam with fruit from their yard. In winter, they enjoyed various greens.
Now they fear they've been poisoned by living at Southeast 25th Avenue near Brooklyn.
Public health officials say the public risk from the pollution is low. But Crawford doesn't believe that.
"I feel betrayed by our regulators," said, Crawford, 36. "I'm very, very anxious, and I'm not an anxious person. Have I
made my kids sick by living in this area? Have I made my mother sick? Have I made my wife sick?"
The Crawfords had their 1-year-old son Charlie and 4-year-old daughter Roisin tested for arsenic, cadmium and 1/3
lead. They got the lead results back late this week. They were unmeasurable, which was a relief. Crawford is waiting
for the other results.
Doing the tests marked the first time he's felt good in days.
"I've felt so powerless," Crawford said. "Having them done feels like I'm taking control."
Portland resident reacts to living within pollution hot spot Bill Crawford has serious concerns over whether the plants
on his property are safe or toxic. Crawford lives less than a half-mile of Bullseye Glass, a Southeast Portland glass
manufacturer that has been pumping elevated levels of carcinogenic heavy metals into the air.
Pinn Crawford, 35, works as a librarian. Bill Crawford is a stay-at-home dad who normally would be planning and
planting his garden this time of year. But the Oregon Health Authority, the state's public health agency, has advised
residents within a half-mile of Bullseye Glass not to eat food or eggs from their garden indefinitely as a precaution.
"I'm heartbroken," Crawford said. "It's time to plant."
His mother, Dorothy Crawford, doesn't fear for herself. "I've lived my life," she said. But she's worried about her
children and grandkids.
"It's eating Billy up," she said.
The Oregonian tests soil in toxic hot spots The Oregonian/OregonLive took soil samples from Portland
neighborhoods in hot spots for toxic metals pollution.
The Crawfords don't know what the pollution means for the long term. They stopped eating the arugula that's
planted on the north side of the house. Eggs from the three chickens stored in the refrigerator have been untouched.
The family still has pesticide-free signs, marked with the well-known ladybug drawing, posted in the garden and
hopes to have the property certified as wildlife-friendly by the Audubon Society of Portland.
Instead of digging in the dirt this month, Bill Crawford has attended community meetings about the toxic air. Last
week he protested in front of Bullseye and handed the owner a letter, voicing neighbors' concerns. He also went to a
legislative hearing in Salem this week.
He worries that Bullseye will resume making glass with arsenic, cadmium and chromium.
"They haven't stopped -- they've suspended their use," he said. "There's no one to hold them accountable."
The company's owners are worried, too, said Chris Edmonds, a spokesman.
"Half of the employees live in the neighborhood and are raising their families here," Edmonds said.
Bullseye has hired an environmental engineering firm, Serbaco Inc., to recommend appropriate pollution control,
Edmonds said.
Crawford worries about the company's continuing use of nickel, manganese and lead. Edmonds said the DEQ has
not asked the company to ban them.
They're necessary to produce glass, Edmonds said, adding that a lot of companies in Portland use the same
materials.
Cutting arsenic, chromium and cadmium has forced Bullseye to pull back 60 percent of its production, Edmonds
said. He also stressed that the company has remained in compliance with state regulations.
2/3
Neighbors asked for a complete list of the metals Bullseye uses in its production but the company hasn't provided
one, Crawford said.
If his children show undue exposure to the heavy metals, he said the family might leave their house.
"I'm not going down without a fight," Crawford said. "But the future's uncertain."
Read about others in the neighborhood:
The longtime family
The family with a son in day care
-- Lynne Terry
lterry@oregonian.com
@LynnePDX
3/3
Exhibit 11
ENVIRONMENTAL
LITIGATION
SEATTLE OAKLAND NEW YORK PHOENIX SANTA BARBARA RONAN

800-776-6044 | info@kellerrohrback.com | www.krcomplexlit.com
ABOUT KELLER ROHRBACK
Devoted to Justice
“[Keller Rohrback] has performed an important public service in this action and has done so efficiently
and with integrity…[Keller Rohrback] has also worked creatively and diligently to obtain a settlement from
WorldCom in the context of complex and difficult legal questions…”
In re WorldCom, Inc. ERISA Litigation (Judge Cote)
Keller Rohrback’s lawyers excel by being prepared and

persuasive. It’s a simple formula that combines our strengths:
outstanding writing and courtroom skill, together with
unparalleled passion and integrity. We have recovered billions
of dollars for our clients, and have served as lead counsel in
many prominent cases, including numerous financial crisis
cases against Wall Street banks and mortgage originators. Our
lawyers are widely recognized as leaders in their fields who
have dedicated their careers to combating corporate fraud
and misconduct. We have the talent as well as the financial
resources to litigate against Fortune 500 companies – and do
so every day.
Who We Are
Keller Rohrback’s Complex Litigation Group has a national
reputation as the go-to plaintiffs’ firm for large-scale, complex
individual and class action cases. We represent public and
private investors, businesses, governments, and individuals
in a wide range of actions, including securities fraud, fiduciary
breach, antitrust, whistleblower, environmental, and product
liability cases. Our approach is straightforward—we represent
clients who have been harmed by conduct that is wrong, and
we litigate with passion and integrity to obtain the best results
possible. Every case is different, but we win for the same
reason: we are persuasive. When you hire us, you hire smart,
creative lawyers who are skilled in court and in negotiations.
Founded in 1919, Keller Rohrback’s sixty-nine attorneys and

over 100 staff members are based in six offices across the country in Seattle, Oakland, Santa Barbara, Phoenix, New York,
and Ronan. Over the past century, our firm has built a distinguished reputation by providing top-notch representation. We
offer exceptional service and a comprehensive understanding of federal and state law nationwide. We also are well known
for our abilities to collaborate with co-counsel and to work together to achieve outstanding results—essential skills in
large-scale cases in which several firms represent the plaintiffs. We pride ourselves on our reputation for working smartly
with opposing counsel, and we are comfortable and experienced in coordinating high-stakes cases with simultaneous state
and federal government investigations. Keller Rohrback attorneys earn the respect of our colleagues and our opponents
through our deft handling of the array of complex issues and obstacles our clients face.

ABOUT KELLER ROHRBACK
What We Do
Keller Rohrback’s Complex Litigation Group represents plaintiffs in large-scale cases involving corporate wrongdoing.
We litigate against companies that pollute, commit fraud, fix prices, and take advantage of consumers, employees, and
investors. We are passionate advocates for justice. In addition, the Complex Litigation Group regularly calls on attorneys
in the firm’s other practice areas for expertise in areas such as bankruptcy, constitutional law, corporate transactions,
financial institutions, insurance coverage, and intellectual property. Our group’s access to these in-house resources
distinguishes Keller Rohrback from other plaintiffs’ class action firms and contributes to the firm’s success. We also have a
history of working with legal counsel from other countries to vigorously pursue legal remedies on behalf of clients around
the globe.
We have won verdicts in state and federal courts throughout the nation and have obtained judgments and settlements on
behalf of clients in excess of seven billion dollars. Courts around the country have praised our work, and we are regularly
appointed lead counsel in nationally prominent class action cases. Our work has had far-reaching impacts for our clients in
a variety of settings and industries, creating a better, more accountable society.
Who We Serve
We represent individuals, institutions, and government agencies. The common denominators of our clients is a desire to
see justice done—and to be represented by attorneys who practice law with integrity, honesty, and devotion to serving our
clients’ interests.
“Despite substantial obstacles

to recovery, Keller Rohrback
was willing to undertake the
significant risks presented
by this case…Class Counsel
achieved real and substantial
benefits for members of the
Class. [Their] extensive prior
experience in complex class
action securities litigation…
enabled the Class to analyze
and achieve this excellent
result.” Getty v. Harmon
(SunAmerica Securities
Litigation) (Dwyer, J.).

ENVIRONMENTAL LITIGATION
Attorneys in Keller Rohrback’s Complex Litigation Group have successfully

ATTORNEYS represented individuals, class members, municipalities and nonprofit
Lynn Lincoln Sarko organizations in complex and critical environmental litigation. In cases
Gretchen Freeman Cappio involving oil spills, mishandled hazardous waste, contaminated consumer products
and industrial pollution, Keller Rohrback works to protect human health and the
Alison Chase
environment. The firm combines its unparalleled experience in consumer protection
Juli Farris
and its deep knowledge of environmental law, making Keller Rohrback a worldwide
Derek Loeser
leader in litigation to safeguard our environment and the people and animals that
Daniel Mensher
rely on it.
Matthew Preusch
Amy Williams-Derry
REPRESENTATIVE CASES
In re Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Litigation,
No. 3:15-md-02672 (N.D. Cal.)
Keller Rohrback filed the first multi-plaintiff complaint against Volkswagen on September 20, 2015, two days after the
defeat device scheme came to light. Our clients are consumers nationwide who allege they have been damaged by
Volkswagen’s fraudulent use of an emissions “defeat device” in over 500,000 vehicles in the United States and over 11
million worldwide. Keller Rohrback’s Lynn Sarko serves on the Plaintiffs’ Steering Committee for this national litigation.
In re Exxon Valdez, No. 89-95 (D. Alaska)

Keller Rohrback was trial counsel representing fishermen, landowners, and
businesses located in Prince William Sound in their action against Exxon
to recover damages caused by the Exxon Valdez oil spill. A federal jury
awarded a $5 billion judgment in favor of Keller Rohrback clients. At the
time, it was the largest punitive damages verdict in U.S. history. Additional
claims against the pipeline owner were settled for $98 million. More than
25 years after the tragic spill, the Exxon Valdez spill is still considered one of
the most devastating human-caused environmental disasters. In addition,
Keller Rohrback Managing Partner Lynn Sarko was appointed to serve as
the Administrator of the Exxon and Alaska Qualified Settlement Funds.
Andrews v. Plains All American Pipeline,

No. 2:15-cv-04113 (C.D. Cal.)
Keller Rohrback serves as interim co-lead counsel representing fisherman,
fish processors, tour companies, and others affected by the May 2015 spill
from Plains All American’s Line 901 pipeline in Santa Barbara County. The
oil spill contaminated pristine beaches, closed critical fishing grounds and
Photo: Mark Colman
damaged natural resources throughout the region. Keller Rohrback seeks
compensation for victims of the spill for their present and future damages and to hold Plains accountable for the harm it
caused to the local economy and environment.

ENVIRONMENTAL LITIGATION
REPRESENTATIVE CASES continued

Meeker v. Bullseye Glass Co., No. 16CV07002,
Circuit Court of the State of Oregon, County
of Multnomah
Keller Rohrback has filed the first and only complaint
against Bullseye Glass company for contaminating a
residential neighborhood in Portland Oregon by emitting
hazardous levels of arsenic, cadmium, lead, chromium,
and other toxic materials from its facility. Despite using
thousands of pounds a year of dangerous heavy metals,
Bullseye Glass has used no pollution control technology at
all for more than four decades. Using innovative air and soil
monitoring, Keller Rohrback is helping this neighborhood
to protect itself and hold Bullseye accountable for the harm
it has caused. Photo: Mark Colman
disposal caused contaminants to seep into the groundwater

Wishtoyo Foundation v. Magic Mountain,
and that the chemicals caused property damage and
No. 2:12-cv-05600 (C.D. Cal.)
non-Hodgkin’s lymphoma cancers affecting numerous
Keller Rohrback worked with a team of environmental residents. The matter involved complex scientific issues
lawyers on behalf of Los Angeles-based clients who related to hydrogeology, chemical migration pathways,
successfully negotiated a groundbreaking settlement aquifer dynamics, clean-up methods, and contaminant
with Six Flags Magic Mountain to address its stormwater degradation. The litigation resolved prior to trial after
pollution discharged to the Santa Clara River. The settlement lengthy evidentiary hearings at which Plaintiffs received
significantly reduced the amount of heavy metals and other favorable Daubert rulings.
pollutants entering the Santa Clara from the amusement
park by requiring the facility to install state-of-the-art Clean Water Act Enforcement – General
technology, develop and implement a comprehensive site Magnaplate
management plan, and fully comply with the Clean Water In partnership with the non-profit Environmental Defense
Act. Additional monetary payments made by Six Flags as a Center, one of the oldest environmental organizations in
result of the case are being used to perform critical habitat the United States, Keller Rohrback L.L.P. helped reach a
restoration and mitigation projects along the Santa Clara final settlement with General Magnaplate California to
River. control the significant pollutants the company discharged
via stormwater into the fragile Santa Clara River. Under
Mapleton Groundwater Litigation
the settlement, General Magnaplate agreed to implement
(Ruff v. Ensign-Bickford Industries, Inc.),
enhanced storm water management measures at its
No. 2:99-cv-120B (D. Utah) electroplating facility to ensure that storm water runoff
Keller Rohrback attorneys successfully litigated a series does not contain high levels of pollutants that pose a threat
of groundwater contamination suits against multiple to human health and the environment. These measures
international Defendants accused of releasing hazardous include installing effective treatment technology and
chemicals into the watershed over six decades. The suits repairing paved surfaces. In addition, General Magnaplate
were brought on behalf of individuals and their families will contribute $15,000 to the Rose Foundation for
against Defendants who owned a former explosives plant in Communities and the Environment to be used to improve
Mapleton, Utah. The Plaintiffs alleged that improper waste the water quality in the Santa Clara River watershed.

Amy Williams-Derry’s practice at Keller Rohrback L.L.P. combines her
passion for protecting people and the environment with her talent and
experience in commercial litigation, complex financial transactions, and
consumer protection.
Amy is a senior member of the complex litigation group at Keller Rohrback,
where she draws on her diverse background representing plaintiffs,
defendants, and coordinating with federal and state governmental entities
to secure the best results for her clients. Prior to law school, Amy worked
on environmental and transportation issues in Washington, D.C. At the
University of Virginia School of Law, Amy was the Editor-in-Chief of the Virginia
Environmental Law Journal.
After practicing commercial litigation for five years with a prominent
Seattle firm, Amy applied her trial, arbitration, and mediation experience
AMY WILLIAMS-DERRY to an environmental law fellowship in the non-profit sector. Working
with Earthjustice, she fought for salmon, old-growth timber forests, and
endangered species in litigation in state and federal courts throughout the
CONTACT INFO Pacific Northwest.
1201 Third Avenue, Suite 3200 Amy joined Keller Rohrback in 2005 with this wealth of experience in
Seattle, WA 98101 commercial litigation and environmental law. At Keller Rohrback, Amy has
(206) 623-1900 expanded her docket to include complex class actions, investor cases, and
multi-defendant actions. Amy thrives on solving complex problems by
awilliams-derry@kellerrohrback.com looking at them from a variety of angles, and her practice has flourished
at Keller Rohrback where she has played key roles in cases nationwide in
PRACTICE EMPHASIS ERISA, securities, complex financial transactions, consumer protection, and
• Class Actions environmental actions on behalf of both institutions and individuals.

• Consumer and Data Privacy Amy has represented clients in proceedings involving the U.S. Department of
Justice, as well as in mediation and arbitration settings, including before the

Protection
National Labor Relations Board, National Association of Securities Dealers,
• Employee Benefits and and the New York Stock Exchange. Amy’s current representative cases include

Retirement Security Federal Home Loan Bank of Boston v. Ally Financial, Inc., et al. (D. Mass.), Federal
• Environmental Litigation Home Loan Bank of Chicago v. Banc of America Funding Corp., et al. (Cook Cty.

Ill.), and In re Volkswagen “Clean Diesel” Marketing, Sales Practices and Products
• Fiduciary Breach Financial
Liability Litigation (N.D. Cal.).

Projects and Services
• Institutional Investors
BAR & COURT ADMISSIONS

• Securities
1998, Washington

• Whistleblower
1998, U.S. District Court for the Western District of Washington

EDUCATION 1998, U.S. District Court for the Eastern District of Washington
Brown University 1999, U.S. Court of Appeals for the Ninth Circuit
B.A., with honors, 1993 Sociology 2007, U.S. District Court for the Eastern District of Michigan
University of Virginia School of 2007, U.S. Court of Appeals for the Second Circuit
Law
2014, U.S. Court of Appeals for the First Circuit
J.D., 1998; Editor in Chief, Virginia
Environmental Law Journal, 2015, U.S. Supreme Court
1997-1998 2015, Massachusetts

PROFESSIONAL & CIVIC
INVOLVEMENT
King County Bar Association, Member
Washington State Bar Association, Member
American Bar Association, Member
WithinReach, Board of Directors, 2006-2009
The Evergreen School, Annual Giving Co-Chair, 2012-2013
Washington Women Lawyers, Member
King County Washington Women Lawyers, Member
The National Association of Public Pension Attorneys,
Member
HONORS & AWARDS

Selected to Rising Stars list in Super Lawyers - Washington,
2003-2009
AV®, Peer Review Top-Rated by Martindale-Hubbell
PUBLICATIONS & PRESENTATIONS

No Surprises After Winstar: Contractual Certainty and Habitat
Conservation Planning Under the Endangered Species Act, 17
Va. Envtl. L.J. 357 (1998)
Presenter, American Law Institute-American Bar

Association ERISA Conference, Employer Stock Cases and
Cash Balance Plans, Scottsdale, AZ, 2008.
Presenter, Washington State Bar Association, Employment

Benefits CLE, Hot Topics in ERISA Class Action Litigation,
Seattle, WA, 2010.
Presenter, HarrisMartin MDL Conference: Fantasy Sports,

Volkswagen, Porsche, and Pharmaceutical Litigation, Cape
Coral, FL 2016
Presenter, HarrisMartin Aliso Canyon Gas Leak Litigation

Conference, Santa Barbara, CA 2016.
Presenter, HarrisMartin MDL Conference: Environmental

Contamination Cases, Seattle, WA 2016.

Daniel Mensher translates thorough preparation into courtroom success.
Dan practices in Keller Rohrback’s nationally-recognized Complex Litigation
Group with a focus on complex environmental and consumer protection
litigation. He enjoys collaborating with his colleagues and clients to identify
problems and find creative, convincing solutions.
Dan has litigated important environmental and consumer cases across the
country in federal and state court. He’s one of the attorneys representing the
City of Tacoma in its fight to hold opioid manufacturers accountable.
Before joining the firm, Dan was an environmental law professor at Lewis &
Clark Law School in Portland, Oregon, where he also litigated cases involving
toxic waste, water pollution, and natural resource management. He has sat
on governmental advisory boards and helped to draft key environmental
DANIEL MENSHER regulations in place today. Dan uses his passion and experience to protect our
environment and the people and communities that rely on clean air, water,
and products.
CONTACT INFO
1201 Third Avenue, Suite 3200
BAR & COURT ADMISSIONS
Seattle, WA 98101
2007, Oregon
(206) 623-1900
dmensher@KellerRohrback.com 2014, Washington
2008, U.S. Court of Appeals for the Ninth Circuit

PRACTICE EMPHASIS
• Consumer Protection 2008, U.S. District Court for the District of Oregon

• Environmental Litigation 2010, U.S. Court of Appeals for the District of Columbia

• Financial Products and
2011, U.S. District Court for the District of Wisconsin

Services
• Government and 2014, U.S. District Court for the Eastern District of Washington

Municipalities
• Mass Personal Injury PROFESSIONAL & CIVIC INVOLVEMENT

Oregon State Bar Association, Member
EDUCATION
Wesleyan University Washington State Bar Association, Member
B.A., 1998, History Toxic Free Future, Board Member
University of Wisconsin
Northwest Environmental Defense Center, Board Member
M.S., 2002, Geography
Lewis & Clark Law School
J.D., cum laude, 2007,
Environmental Law Certificate;
Cornelius Honors Society; Articles
Editor, Environmental Law Review

Speaker, Bridgeport Environmental Class Action Webinar,
March 2016
Speaker, Harris Martin Porter Ranch Gas Leak Litigation

Conference, “Testing of the Air Quality and Expert
Witnesses for the Cases,” 19 January 2016
Daniel P. Mensher, With Friends Like These…: The Trouble

With Auer Deference, 43 Envtl. Law Rev. 4 (2013).
Speaker, Oregon Water Law Conference, November 7,

2013 (Addressing issues in Water Quality Trading)
Speaker, Northwest Environmental Conference and

Tradeshow, December 11, 2013 (The Precautionary
Principle in Environmental Law)
Speaker, RainOps Conference, 2013, Spokane, WA,

Longview, WA (Clean Water Act stormwater regulation)
Presenter, Oregon State Bar Environmental and Natural

Resources Committee annual Continuing Legal Education
Program, 2013 (salmon issues in Oregon and the Pacific
Northwest)
Speaker, Oregon State Bar brown bag CLE debate with

Oregon DOJ assistant attorney general about the Supreme
Court case Decker v. NEDC, 2012
Daniel P. Mensher, Common Law On Ice: Using Federal

Nuisance Law to Address Global Warming, 37 Envtl. Law
Rev. 2 (2007).
Chris Rycewicz and Dan Mensher, Growing State Authority

Under the Clean Water Act, 22 Nat. Resources & Env’t 2
(2007).

Matthew Preusch practices in Keller Rohrback’s nationally-recognized
Complex Litigation Group. Before joining Keller Rohrback, Matthew served
as an honors attorney in the Oregon Department of Justice’s appellate and
trial divisions. He was a judicial extern for the Hon. Michael W. Mosman in
the District of Oregon during law school. Prior to his legal career, he spent 10
years as a journalist in the Pacific Northwest, covering regional and national
news for The Oregonian, The New York Times and other publications.
Matthew is passionate about protecting people and the environment. He’s

helped initiate landmark consumer litigation related to Volkswagen’s “Clean
Diesel” deceit and Wells Fargo’s unauthorized account scheme. When studies
of moss samples in trees in Portland, Oregon identified several pollution
“hotspots” in that city, he and others at Keller Rohrback launched cases on
MATTHEW PREUSCH behalf of residents to hold the responsible manufacturers accountable.
Working on behalf of government entities, Matthew has investigated claims
related to PCB contamination and the opioid epidemic.
CONTACT INFO
801 Garden Street, Suite 301 BAR & COURT ADMISSIONS
2014, California
(805) 456-1496
2014, U.S. District Court for the Central District of California
mpreusch@kellerrohrback.com
2014, U.S. District Court for the Eastern District of California
PRACTICE EMPHASIS 2014, U.S. District Court for the Northern District of California
• Consumer & Data Privacy
2014, U.S. District Court for the Southern District of California

Protection
• Environmental Litigation 2014, U.S. Court of Appeals for the Ninth Circuit

• Governments and
2013, Oregon

Municipalities
2013, U.S. District Court for the District of Oregon
EDUCATION
Pomona College PROFESSIONAL & CIVIC INVOLVEMENT
B.A., 2000, Politics, Philosophy, Oregon State Bar Association, Environmental and Natural Resources Section,
and Economics Case Notes Editor
Lewis & Clark Law School
Federal Bar Association, Member
J.D., magna cum laude, 2013,
Environmental & Natural
Resources Law Certificate

Panelist, Lewis and Clark Law School, Public Interest Law
Project, ” Cutting-Edge Bet the Company Mega Class Action
CLE” February 2016
Speaker, Harris Martin Porter Ranch Gas Leak Litigation
Conference, “Remedies,” 19 January 2016
Don’t Say, “No Comment”: How To Ethically and Effectively
Talk to Reporters, Santa Barbara County Bar Association
(Sep. 16, 2015)
Oregon State Bar Environmental & Natural Resources
Section Case Notes
(July 2015)
Matthew Preusch, Tim Weaver, Yakama Tribes’ Salmon
Champion, Says His Goodbyes, The Oregonian (Jan. 1,
2010).
Matthew Preusch, DEQ to Help Polluter Seek Federal
Break on Mercury Emission, The Oregonian (Aug. 19,
2009).
Matthew Preusch, Amid Forests Ashes, A Debate Over
Logging Profits is Burning On, The New York Times (Apr.
15, 2004)
Panelist, Bridgeport Consumer Class Action Litigation
Conference, “Current State of the Law on Ascertainability
and Standing,” January 2016

SEATTLE
Seattle, WA 98101
P: 206.623.1900 | F: 206.623.3384
PHOENIX
3101 North Central Avenue, Suite 1400
Phoenix, AZ 85012
P: 602.248.0088 | F: 602.248.2822
SANTA BARBARA
801 Garden Street, Suite 301
P: 805.456.1496 | F: 805.456.1497
NEW YORK
1140 Avenue of the Americas, Ninth floor
New York, NY 10036
P: 646.380.6690 | F: 646.380.6692
OAKLAND
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
P: 510.463.3900 | F: 510.463.3901
RONAN
407 Main St. SW, Suite 3
Ronan, MT 59864
P: 406.281.7231 | F: 805.456.1497
Exhibit 12
KARL G. ANUTA
LAW OFFICE OF KARL G. ANUTA, P.C.
735 SW FIRST AVENUE, 2ND FLOOR
TRIAL ATTORNEY PORTLAND, OREGON 97204 E-MAIL
LICENSED IN (503) 827-0320 KGA@INTEGRA.NET
OREGON & WASHINGTON FACSIMILE (503) 228-6551
RESUME OR CURRICULUM VITAE
KARL G. ANUTA
Law Office of Karl G. Anuta, P.C.
735 SW First Ave. 2nd Floor
Portland, Oregon 97204
503-827-0320
BAR MEMBERSHIP
Oregon Supreme Court;

Washington Supreme Court
U.S. District Court, District of Oregon
U.S. District Court, Western District of Washington
U.S. District Court, Eastern District of Washington
U.S. Court of Appeals, Ninth Circuit
EDUCATION
Lewis & Clark College, Portland, Oregon, 1977-81

B.S. Political Science; Externship, Washington D.C., Fall 1980; Fencing Team
Northwestern School of Law, at Lewis & Clark, Portland, Oregon, 1982-86

J.D. Certificate in Environmental and Natural Resources Law;
Honor Council 1982-83, Admissions Committee 1985-86
PROFESSIONAL POSITIONS
Law Office of Karl G. Anuta, P.C., Portland, Oregon - Jan. 2008 - present
Litigation of complex environmental, personal injury, and assorted other cases.
Sokol & Anuta, P.C., Portland, Oregon - Shareholder, Jan. 1998 - Dec. 31, 2007
Three attorney firm. Litigation of complex injury, environmental, and other cases.
Sokol & Associates, P.C., Portland, Oregon - Senior Associate, Feb. 1994 - Dec. 1997
Litigation of civil rights, personal injury and environmental cases.
Jolles, Sokol & Bernstein, P.C., Portland, Oregon - Associate, Aug. 1986 - Feb. 1994
Small firm, focusing on labor law, personal injury, and medical malpractice cases.
Page 1
HONORS & AWARDS
Trout Unlimited - 1991 - Certificate for contribution to the protection of cold water fisheries.
Oregon Natural Resource Council - 1992 - Conservation Achievement Award
1000 Friends of Oregon - 1992 - Citizen Mentor Certificate
U.S. Army Corps of Engineers, Portland District - 1994 - Environmental Advisory Board
Northwest Environmental Defense Center - 2002 - Volunteer Attorney of the Year
1000 Friends of Oregon - 2002 - Certificate of Appreciation, as Cooperating Attorney
Lewis & Clark Law School - 2003 - Distinguished Environmental Law Graduate Award
Washington State Bar - 2004 - Pro Bono Publico Service Commendation
University of Oregon Public Interest Environmental Law Conference - 2009 - Kerry L.

Ryberg Award for Environmental Activism
SELECTED EXAMPLES OF REPRESENTATION
Salt Caves Dam Opposition, Lead Attorney, 1985-1998

Assisted with and then represented, coordinated, and advised the Sierra Club, Oregon Trout,
and five other conservation organizations in multiple state and federal administrative
proceedings and court cases opposing licensing of a hydroelectric project on Oregon's Upper
Klamath River. Lead counsel in all cases spawned by the project, among them: City of
Klamath Falls v. EQC, 318 Or 532 (1994)(denial of CWA 401 Cert. upheld) & City of Klamath
Falls v. Babbitt, 947 F.Supp. 1 (1996)(designation as Wild & Scenic River upheld).
Oregon Environmental Council v. Kunzman, 614 F.Supp. 657 (D.Or 1985), 636 F.Supp.
632 (D.Or 1986), 817 F.2d 484 (9th Cir.1987)
Assisted with NEPA case on proposed aerial pesticide spraying for Gypsy Moths. Prepared
successful appeal to Ninth Circuit on attorneys' fees.
Oregon Natural Resources Council v. U.S. Coast Guard, 1987

Wrote briefs and assisted with successful NEPA TRO lawsuit to halt a proposed jet boat race
through a wildlife refuge on the Snake River, during nesting season, and a subsequently
successful EAJA attorneys' fees dispute.
Northwest Environmental Defense Center (NEDC) v. Thomas, 1986-88

Lead counsel in precedent setting CWA citizen suit against EPA, to force implementation of
CWA § 303(d) (TMDLs) in Oregon.
NEDC et al v. Unified Sewerage Agency, 1988-90

Participated in settling Clean Water Act citizen suit against municipal sewage agency.
Page 2
Resulted in a 1.1 million dollar settlement and cleanup agreement.
Boger v. Norris & Stevens Inc. et al, 109 Or App 90 (1991) rev. den. 312 Or. 588 (1992)
Three week trial of toxic water exposure injury case, resulting in jury verdict of over $750,000.
Verdict upheld on appeal.
NEDC v. U.S. Forest Service, 1991-92

Successful FOIA litigation to obtain release of Forest Service staff recommendations on a ski
area expansion plan EIS preferred alternative, which had been given to the developer but not
to the public.
WaterWatch v. Oregon Water Resources Department, 1993

Successful challenge to improper issuance of a water appropriation permit or right, on Arch
Cape Creek at Oregon's coast.
Grossman v. City of Portland, 33 F.3d 1200 (1994)

Civil rights suit against municipality, for arrest of protestor for carrying a sign in a public park
during Rose Festival. Successfully overturned trial court dismissal on police/municipal
immunity grounds and obtained substantial monetary settlement.
Buggsi Inc. v. Chevron USA Inc., 857 F.Supp. 1427 (1994)

Trespass, nuisance and CERCLA lawsuit for landowner with underlying gasoline
contamination. Established exception to state SOL limits, based on federal hazardous waste
statutes, and obtained significant property damage settlement.
Crawford v. Kaiser Permanente, 1994-95

Lead counsel in multi-million dollar medical malpractice case for wrongful birth/life on behalf
of parents and disabled child. Obtained settlement that preserved private, state and federal
disability benefits and created additional extra-needs trust worth in excess of $1,000,000.
National Wildlife Federation et al v. Aapaoa, 1995

Co-counsel in successful challenge to Siskiyou Nat'l Forest allowance of suction dredge
mining activities, in contravention of NW Forest Plan.
ONRC v. Daley, 6 F.Supp.2d 1139 (D.Or.1998)

Local counsel in the law suit that forced NMFS to list Oregon coho salmon as endangered
under the Endangered Species Act.
Parker v. Moeller's et al, 1999

Toxic exposure and property damage claim for multiply chemically sensitive neighbor of tree
nursery. Obtained settlement of over $200,000.
Friends Of Mt. Hood et al v. USFS & Mt. Hood Meadows Ski Area, 1997-2001
Lead counsel in multiple federal court challenges to Ski Area expansion plan, as well as a
Clean Water Act suit against ski area and USFS. Obtained precedent setting CWA Consent
Decree, and a court issued injunction against further expansion until additional NEPA studies
were done.
Page 3
Friends Of East Fork v. N.M.F.S., 2000
Successful FOIA suit against federal agency to force disclosure of EIS & HCP documents
actually written by gravel mine consultants, and intended as a template for agency draft
HCP/DEIS.
Friends Of East Fork v. JL Storedahl, 1999 - 2004

Represented, coordinated, and advised local conservation groups in multiple state and
federal administrative and federal court proceedings, opposing the proposed expansion of a
gravel mine on the banks of the East Fork of the Lewis River, in Southwest WA.
Multiple Herbicide Drift Cases, 2006-2011

Represented various individuals in damages cases (large and small) arising out of
misapplication or use of pesticides, that caused harm to persons or property.
Citizens For Responsible Development v. D.E.Q. & D.S.L., 2009 - 2017

Represented and advised local business and citizen group opposing siting of WalMart Super
Center on top of vernal pool wetlands and next to a designated critical salmon habitat stream,
in The Dalles, OR. Successfully obtained revocation of a Clean Water Act Stormwater
Construction Discharge permit issued by state DEQ.
Benjamin v. Douglas Ridge Rifle Club, 2010

Represented plaintiff in precedent setting Clean Water Act & Res. Conserv. Recovery Act law
suit against 60 year old Gun Club. Obtained Federal Court Consent Decree specifying
requirements for wetland fill removal and lead contamination clean up of shooting range.
NEDC et al v. Grabhorn, Inc., 2008 - 2013

Represented conservation groups to limit discharges from leaking landfill, to nearby river.
Obtained precedent setting Summary Judgment rulings on application of the Clean Water Act
to polluted ground water, and ultimate a favorable Federal Consent Decree under both Clean
Water Act and Resource Conservation and Recovery Act.
Columbia Riverkeeper v. Port of St. Helens, 2012

Successful Oregon Public Records Act case to obtain Coal Terminal Leasing agreements
entered into by a local Port.
TEACHING/PUBLISHING ACTIVITIES
Oregon State Bar, CLE, Speaker, Recent Development in Environmental Law -"TMDLs and
You" - Bend, Or. November 1989
University of Oregon, Land, Air and Water Conference, Speaker - "Litigating Free
Flowing River” - Eugene, Or. March 1990
Water Quality, Water Quantity: The Reluctant Marriage, Conference Planner/Organizer -

Portland, Or. February 1991
Page 4
Northwest Rivers Council, Hydro Licensing/Re-licensing Workshop, Speaker - "How To
Stop A Dam" - Seattle, Wash. May 1991
Storm Water Discharge Seminar, Speaker - "Liability For Damages From Storm water
Runoff” - Portland, Or. April 1992
U.S. Forest Service, Ski Area Coordinator Conference, Speaker - "Is There Room on the
Mountain" - Crystal, Wash. January 1993
Northwestern School of Law at Lewis & Clark, Portland, Or., Environmental Litigation
Course - Assisted Adjunct Professor with class on the practical skills needed in to litigate
environmental cases - Spring Terms 1993-1999
Oregon State Bar, Environmental & Natural Resources Section Annual Meeting,
Speaker - "Instream Water Rights" - Kahnetta, Or. September 1993
University of Oregon Law School, Land, Air and Water Conference, Speaker - “Clean
Water Act Citizen Suits" - Eugene, Or. March 1994
Assoc. of Public Works Administrators, 1995 Int’l Public Works Congress and
Exposition, Speaker - "Lawsuits as Best Management Practices" - Dallas Tex. August 1995
Premises Liability: Preparation and Trial of a Difficult Case in OR, Speaker and Co-
Author - Portland, Or. August 1997
Oregon Trial Lawyers Association, Trial Lawyer Magazine, Author - “10 Premises
Liability Tips” - Spring 1999
Oregon State Bar, Environmental & Nat. Res. Law CLE/BarBook, Author - Chapter 18 -
“Toxic Torts” - 2002, update published 2006
University of Oregon Law School, Land, Air and Water Conference, Speaker - ”Starting
An Environmental Law Public Interest Law Practice” - Eugene, Or. March 2011
Oregon State Bar, Administrative Law CLE/BarBook, Author - Chapter 6 - “Extraordinary

Remedies in Administrative Cases” - 2011, update and re-publishing August 2016
COMMUNITY ACTIVITIES
Northwest Environmental Defense Center, Board of Directors, 1986-present

(Vice-President, 1995-1999; 2017 - present, President, 1989-1995, and 2000 - 2017)
Organize and supervise attorneys and students involved in nonprofit environmental litigation
group. Represent group in numerous administrative, political, and judicial proceedings
involving water and related development issues in the Pacific Northwest.
Pacific Rivers Council (formerly Oregon Rivers Council), Board of Directors, 1989-1997
Nonprofit group focused on protecting and properly managing the waters and cold water
Page 5
fishery resources of the Pacific Northwest
Waterwatch of Oregon, Board of Directors, 1989-present (Vice President 2017 - present)

Nonprofit organization dedicated to the management of Oregon's water resources to support
both a healthy economy and environment.
Friends Of Mount Hood, Board of Directors, 1989-present

Helped found tax exempt conservation coalition organized to"watchdog" development on
Mount Hood, Oregon. Coordinate and represent coalition on ski area expansion issues.
OTHER EXPERIENCES
Security Guard (armed) - Wallace Security, Portland, Oregon 1981-82
Political Theory Thesis - Lewis & Clark College, 1981 - The Nature of Man: Good or Evil:
Comparing Hobbes, Rousseau, Plato & Machiavelli
INTERESTS AND HOBBIES
Cooking, Canoeing, Sea Kayaking, Fly Fishing, Skiing & Old House Repair.
References, Writing Samples & Further Digressions available upon request
Page 6
Exhibit 13
Keller Rohrback l.l.p.
LAURIE B. ASHTON ®©0 Meredith l. Gray © Holly E. Lynch KarinB. Swope
Ian S. Birk Gary D. Greenwald ®00 Ryan McDevitt PaulA.Tonella
Kenneth A. Bloch Mark A. Griffin © Daniel Mensher © Havila C. Unrein ®®
James A, Bloom ®0 Amy N.L. Hanson Ian J. Mensher Gabe E. Verdugo
KAREN E. Boxx Irene M, Heci-it Michael W. Meredith Amy Williams-Derry
Gretchen Freeman Cappio Scott C. Henderson Gretchen S. Obrist Michael Woerner
Alison Ci-iase ®® 0 Michael G. Howard Robert S. Over Benson D, Wong
1". David Copley © Khesraw Karmand ©0 Dudley B. panchot Edwin G. Woodward
Rob J, Crichton © Dean N, Kawamoto ® © David S. preminger O 0 Diana m. Zottman ©
Maureen M, Falecki Ron Kilgard ffi© © 0 Matthew J. Preusch © © 0 (1) ADMITTED IN ARI ZONA
Juli Farris ® Kathryn M, Knudsen Jacob Richards © 0 ® ADMITTED IN CaiLIFORNIA
® ALSO ADMITTED IN ARIZONA
Raymond J. farrow DAVID J, KO Erin M. Riley7 3) ALSO ADMITTED IN CALIFORNIA
© ALSO ADMITTED IN COLORADO
Eric J. Fierro ®0 Eric R. Laliberte Steven N, Ross © ALSO ADMITTED IN IDAHO
Alison S. Gaffney ® ALSO ADMITTED IN ILLINOIS
Benjamin J. Lantz Isaac Ruiz
® ALSO ADMITTED IN MARYLAND
Glen P. garrison © Luke M. LaRiviere David J. Russell ® ALSO ADMITTED IN MICHIGAN
® ALSO ADMITTED IN MONTANA
Laura R. Gerber Cari Campen Laufenberg Mark D. Samson ©00 O ADMITTED IN NEW YORK
0 ALSO ADMITTED IN NEW YORK
Matthew M. Gerend Elizabeth a. Leland Lynn Lincoln Sarko 0© © ALSO ADMITTED IN OREGON
GARY A. GO'ITO ®0 Jeffrey Lewis © 0 William C. Smart O ALS O ADMITTED IN OHIO
© ALS;0 ADMITTED IN TEXAS
Benjamin Gould ® Tana Lin ®®0 Thomas A. Sterken © ALSO ADMITTED IN WA:SH1NGTON, D.C
0 ALSO ADMITTED IN WISCONSIN
Christopher Graver ® O Derek W. Loeser Beth m. Strosky © NOT ADMITTED IN WASHINGTON
March 3, 2016
VIA CERTIFIED AND U.S. MAIL
Bullseye Glass Co. Bullseye Glass Co.

c/o TT Administrative Services, LLC 3722 SE 21st Avenue
888 SW 5th Avenue Portland, OR 97202
Suite 1600
Portland, OR 97204
Re: Potential Class Action Litigation for Damages
Dear Sir or Madam:
The purpose of this letter it to comply with the notice requirements of Oregon Rule of
Civil Procedure 32 for class actions lawsuits claiming damages. We represent residents of
Southeast Portland who live in close proximity to the Bullseye Glass Co. facility at 3722
Southeast 21st Avenue. We intend to file a class action lawsuit on behalf of our clients and a
class of similarly situated persons seeking injunctive relief and, in 30 days or more from the date
of this letter, intend to amend that complaint to add claims for damages. The current list of
named plaintiffs in that lawsuit is Alyssa Isenstein Krueger, Robert Krueger, Scott Meeker, Erin
Meeker, Kelly Goodwin, Elizabeth Marre and Darryl OBeirne, but other named plaintiffs may be
added to the complaint for damages.
Our clients' complaint alleges, among other things, that Bullseye' s operation of its
facility constitutes a nuisance and that Bullseye has trespassed on plaintiffs' and proposed class
members' property, resulting in harm to plaintiffs and proposed class members. The complaint
seeks certification of a class of persons in close proximity to Bullseye, where elevated levels of
toxins alleged to have been emitted from Bullseye have been detected in air, moss, soil, and
people. The amended complaint will request damages, attorneys' fees, and costs, and may
include additional claims, such as negligence.
With this notice, our clients demand that Bullseye abate the nuisance it has created,
remedy its trespass, and operate its facility in a non-negligent manner such that it no longer
1201 Third Avenue, Suite 3200, Seattle, WA 98101-3052 | Telephone: (206) 623-1900 | Facsimile: (206) 623-3384 m
Seattle Phoenix New York OAKLAND Ronan Santa Barbara
W/WW KET.T.F.RRrYHRRACK.mM I WWW.KRrOMPI.EXT.IT.COM
Keller Rohrback l.l.p.
March 3, 2016
Page 2
endangers the health and property of people in Southeast Portland. Our clients also demand on
behalf of themselves and all others similarly situated that Bullseye pay for metals testing for
health and property, and remediation of any land found to contain elevated levels of arsenic,
cadmium, chromium, or other metals that Bullseye uses or has used in its glass manufacturing
processes.
If Bullseye does not satisfy those demands within 30 days, our clients intend to file an
amended class action complaint seeking appropriate damages, injunctive relief, costs, and
attorneys' fees in the circuit court of Multnomah County, state of Oregon. This demand and
notice is given pursuant to Oregon Rule of Civil Procedure 32 A and H.
\ ^ Best regards,
Daniel P. Mensher
Amy Williams-Derry
Seattle, WA 98101
Matthew J. Preusch
Keller Rohrback L.L.P
1129 State Street, Suite 8
Santa Barbara, CA 93 1 0 1
Karl G. Anuta
Law Office of Karl G Anuta PC
735 SW First Ave 2nd Fl.
Portland OR 97204
DPM:sjs
Exhibit 14
Eastside Portland Air Coalition Public Group | Facebook Page 1 of 4
Email or Phone Password

Eastside Portland DESCRIPTION
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Air Coalition Sign Up http://www.eastsideportlandair.org/
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Public Group Please note that opinions s... See More
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Eastside Portland Air Coalition is on Facebook.
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Jessica's post To connect with Eastside Portland Air Coalition, sign up for Facebook today.
Members Portland, Oregon
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Events
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Videos Sign Up RECENT GROUP FILES See All
Photos
UIC removal 10 28 2017 summ.docx
Katharine De Luna Plateada updated on
Files
Sunday
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Six Info Sessions on

Cleaner Air Oregon:
Statewide
Wednesday, November 15 at
5:30 PM PST
Jessica Applegate shared a link. Medford, Coos Bay, Corvallis,
Pendleton, Portland
September 29
Bullseye update: Hearing next week for allowance of punitive damages.

RECENT GROUP PHOTOS See All
The hearing is at 8 am on Fri., Oct. 6, Courtroom 450, Multnomah County
Courthouse, 1021 SW Fourth Avenue Portland, OR 97204.
Bullseye asked for punitive damages to be dismissed and our lawyers
replied asking them to be included. This decision will be made next week at
the hearing.
Look in documents linked for all details. Of note is Bullseye employee
statements within the document.
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Bullseye Glass Co. - Keller Rohrback-Complex Litigation

Law Firm
Bullseye Glass Co. Photo By: Mark Colman Meeker, et al. v. Bullseye Glass Co.,
Case No. 16CV07002Multnomah County Circuit Court, State of Oregon Case…
KRCOMPLEXLIT.COM
30 Likes 10 Comments
Like Comment Share
Patti Hill, J Bea Young, Marny Spoons and 27 others like this.
Katharine De Luna Plateada I think I may have figured out why DEQ staff
often seem extremely shut down. For a long time I thought it was PTSD at
having to do their work with completely unstable and insufficient funding
resources which would cause projects to be scuttled, half-baked, back-logged
or never taken up. But reading these materials and having sat thru the Cleaner
Air Oregon advisory committee meetings, I now realized that a central problem
for DEQ staff - who I have to believe want to fulfill DEQ's mission to protect the
environment from harm- is that they must do regular interface and often make
nice with completely unethical people. It's like working in a viper's den. And
often the vipers hold the keys to adequate funding thru their powerful legislative
lobbyists. If you are an ethical person trying to do good in the world and you
must routinely make contact with unethical people, well, ew. After awhile you
are going to have to build up a tragic wall of resignation or shrink your
aspirations to fit the teeny tiny room you are afforded. What I'm saying is: The
poison is not just in the emissions.
Like · 16 · September 29 at 9:46am · Edited
Dayna Jones Powerful and, I suspect, spot on observation. Bring on

those puni's!
https://www.facebook.com/groups/448557395350732/permalink/677327575807045/ 11/9/2017
Like · 5 · September 29 at 9:53am
Jessica Applegate It's called politics. Advocates working for free will
always be at a disadvantage against paid lobbyists for industry. A sad
truth I have recently learned. Yuck!
Join this group to post and comment.
Jessica Applegate Also you know who is stalking our legislators- the
paid lobbyists. Advocates don't have time or money to dedicate to
sweet talking legislators. The halls in Salem are filled with industry
lobbyists doing exactly that.
Like · 6 · September 29 at 10:51am · Edited
Satya Devi Dasi In this map from the Oregonian, what is the huge area in
Woodstock? http://projects.oregonlive.com/air.../heavy-metals/testing/
Interactive map: Heavy metals in Portland

See where testing has found elevated levels of heavy…
PROJECTS.OREGONLIVE.COM
Like · September 29 at 11:06am
Katharine De Luna Plateada PrecisionCast Parts, one of the biggest

polluters in the country.
Like · September 29 at 12:45pm
Lynn Murphy It never fails to amaze me that eastmoreland people

haven't joined in the fight. Their local elementary school is one of the
bottom in the nation for air pollution, that to precision castparts.
Teresa Harris Interesting how the PCC pollution seems to follow the
Johnson Creek "valley". There are low hills on either side and that
shaded area looks like it follows that almost exactly. Lewis would
probably more affected then Duniway....
Like · October 1 at 9:07am
Jm Davis Can the public attend this meeting?

Jessica Applegate I believe so!

Mark Ginsberg all court hearings are open to the public, but you do
need to go through security to get into the building.
Like · 2 · September 29 at 3:38pm
Jess Beebe Are you involved with this case, Mark? Hope you are well
April St John Shut them down!

Jessica Applegate Jody Bleyle Amy Bacher

Frank Peters Good luck
Amanda Jarman It's incredible that Schwoerer still thinks Bullseye had nothing
to do with the cadmium. And how faulty his memory is! Seems like someone so
absent-minded should not be handling hazardous chemicals in a residential
neighborhood.
Katharine De Luna Plateada He's doing what his lawyers have told
him to do. Like a crooked politician. He can't admit culpability even if he
is sitting in a hell of his own making. If he takes responsibility for it now,
he is culpable and therefore liable.
Amanda Jarman Katharine De Luna Plateada yup. I hope he knows

that he's lying.
Kevin Takalo He knows he is lying. He isn't fooling anyone.

Kathleen O'Brien Punitive damages, unlike normal compensatory damages,

are not just for the plaintiffs, most of the $$ would go to crime victims. I'll look
up the statute.
Like · 1 · October 1 at 12:58pm · Edited
Kathleen O'Brien Two statutes pertain: ORS 31.730:

Punitive damages are not recoverable in a civil action unless it is
proven by clear and convincing evidence that the party against whom
punitive damages are sought has acted with malice or has shown a
reckless and outrageous indifference to a highly unreasonable risk of
harm and has acted with a conscious indifference to the health, safety
and welfare of others.
Like · 1 · October 1 at 12:54pm
Kathleen O'Brien ORS 31.735:

(b) Sixty percent is payable to the Attorney General for deposit in the
Criminal Injuries Compensation Account of the Department of Justice
Crime Victims’ Assistance Section, and may be used only for the
purposes set forth in ORS chapter 147. However, if the prevailing party
is a public entity, the amount otherwise payable to the Criminal Injuries
Compensation Account shall be paid to the general fund of the public
entity. Join this group to post and comment.
Like · October 1 at 12:57pm
Jessica Applegate Katharine De Luna Plateada what was the outcome of

this?
Katharine De Luna Plateada Marny Spoons of EPAC attended. The hearing

was very brief, the defense lawyers submitted additional materials and the
judge said he would post his ruling on line. Is that right Marny?
Like · 1 · October 13 at 11:01am · Edited
Marny Spoons Yes.

Exhibit 15
Toxic Moss in Portland, Ore., Shakes City’s Green Ideals - The New York Times Page 1 of 5
https://nyti.ms/1QMzzoj
U.S.
Toxic Moss in Portland, Ore., Shakes

City’s Green Ideals
By KIRK JOHNSON MARCH 2, 2016
PORTLAND, Ore. — The 346 clumps of moss that science researchers from the
United States Forest Service scraped from tree trunks and branches across this city
looked as ordinary as moss gets — ancient, simple and common to the point of
invisibility in the Pacific Northwest’s palette of green.
But the moss had a riveting tale to tell, with shock waves that are still spreading.
Toxic heavy metals, notably cadmium, which can cause cancer and kidney
malfunction, were detected in the samples, with high concentrations in particular
around two glass factories in residential neighborhoods, both of which had used
metals for coloring their products.
In a city that prides itself on being an environmental example to the world —

from its throngs of bike commuters to its antisprawl development rules — the moss
study results roared, producing an upheaval of surprise, anger and fear. Residents
shouted or wept in public meetings last month, raging at state officials, who released
the results and then found themselves blamed for not knowing what the factories
were putting up their smokestacks.
https://www.nytimes.com/2016/03/03/us/toxic-moss-in-oregon-upsets-city-known-for-environme... 11/17/2017
On Tuesday, the director of Oregon’s Department of Environmental Quality,

Dick Pederson, resigned abruptly, saying he had health concerns that needed
immediate care.
After the moss studies were released, local officials, who have said they are
cautiously optimistic that public health impacts from the glass plants will in the end
be minimal, raced in to take soil samples and set up air monitors. But residents near
the plants were also cautioned last month to forgo, at least for now, even the spring
rites of backyard gardening, until the test results can be further analyzed — a
warning that sent another shiver through a city where “eat local” is almost a mantra.
“Because there is uncertainty, the gap is filled with fear,” said Dr. Paul Lewis, the
Multnomah County health officer.
Residents like Sarah Livingstone, 41, who lives about five blocks from one of the
glass factories, said the moss study and its consequences had changed her life.
“It’s the last thing I think of before I go to sleep and the first thing I think of in
the morning,” said Ms. Livingstone. Her 15-month-old daughter, Clara Ritter, tested
positive for arsenic, which sent off alarm bells in the family even though doctors said
it was within a normal range. “I don’t know how we get back to normal,” added her
husband, Rex Ritter, 48, in an interview in their living room.
Rob Davis
@robwdavis
Dick Pedersen, who shunned the spotlight once

Portland's toxic pollution scare began, is out as
@OregonDEQ director.
oregonlive.com/environment/in…
4:06 PM - Mar 1, 2016
Even the Forest Service researchers who undertook the moss study — the first of
its kind in the world, health experts and regulators said — were taken by surprise.
The idea, they said, in keeping with their work for a federal agency that has “forest”
in its name, had been about demonstrating how trees add value in an urban setting.
Measuring levels of pollution was not the goal of the research, let alone the discovery
of a citywide grid of toxic hot spots.
“This wasn’t at all what we set out to find,” said Geoffrey Donovan, an
economist who worked on the project with his research partner, Sarah Jovan, a moss
and lichen expert.
The two glass companies, Uroboros Glass Studios and Bullseye Glass, both
voluntarily stopped working with cadmium — used for making red, yellow and
orange glass — and chromium, used in green and blue tints, after the moss results
were announced in January.
But Daniel Schwoerer, a co-founder and the chief executive of Bullseye, said he
thought glass-manufacturing might not be fully responsible. His factory, which
opened in 1974 and has 140 workers, is also near a railroad yard, a cement plant and
a metal-casting company.
“The D.E.Q. thinks we’re responsible — we don’t know,” Mr. Schwoerer said in
an interview, referring to the Department of Environmental Quality. “But we’re
going to do the right thing going forward.”
Oregon’s state epidemiologist and medical director of public health, Dr. Paul R.
Cieslak, called the Forest Service study “genius” in looking where no one had ever
thought to look. But the puzzle of science, anxiety and uncertainty that has resulted,
he said, is messy.
And time consuming: The moss samples were gathered in late 2013, and the
Forest Service team finished its analysis last May. The Department of Environmental
Quality then did its own testing last fall to confirm what the moss was saying, and it
released the results when they came in, in January.
“From a doctor’s standpoint, they always tell us, ‘Never order a test unless you
know what you’re going to do with the result,’ ” Dr. Cieslak said. “Now we’re in this
situation where we have all this data from the moss, and we’re left struggling to
figure out what does it all mean.”
He said that because substances like cadmium are mainly considered risks to
human health in long-term heavy exposures, and because the levels detected around
the factories have so far been below the threshold of “acute,” the alarm for the
moment is low. The state has said that people who want to check their own cadmium
exposure could do so through a urine test with their physician — and that the state
would pay for people who could not afford it — but results are just starting tocome
in.
“I think what we are going to end up telling people is that you are at some
elevated risk, and the degree of elevation is likely to be small,” Dr. Cieslak said.
Environmental groups and legal experts said the long-term importance could be
in the moss itself, as a relatively low-cost research tool. If plants can, in a way, speak
of what they have absorbed, then a door has been opened to a whole new arena of
pollution research.
“We are potentially at the tip of an iceberg,” said Wendy Wagner, a professor at
the University of Texas at Austin School of Law who teaches environmental law.
“With new tools of looking for things that we really haven’t looked for before, we’re
going to be in for some surprises,” she added.
Federal air pollution laws have mostly focused on overall, or ambient, air quality
— especially from emissions like carbon monoxide and lead. Metals and other toxics
are less extensively monitored, Professor Wagner and other experts said, as are
small companies like the two glass factories.
Portland residents like Mary Peveto said that to her, the revelation of the
cadmium hot spots was no surprise. Ms. Peveto, a co-founder and president of a
group called Neighbors for Clean Air, became involved in pollution issues here in
2008 after a study found that schools in Portland — including her daughter’s — had
some of the worst results in the nation for industrial pollution deposits. That new hot
spots are turning up all over again, she said, “shows that the system is still broken.”
Portland’s mayor, Charlie Hales, said he thought the shock from the moss study
was compounded by Portland’s self-image as a city that can have it all: industry and
blue-collar factory jobs, but also clean air and water.
“We are an example to the world of the green, sustainable city, and so it’s all the
more dissonant,” Mr. Hales said.
Mr. Donovan and Ms. Jovan at the Forest Service, meanwhile, are already
planning to replicate their study in a new city this spring: Cincinnati.
Doctors at Cincinnati Children’s Hospital Medical Center heard about the moss
study and asked the researchers to go there and make a grid map like Portland’s,
which will be cross-matched against health and development studies in children in
various neighborhoods there.
“The first step is creating that map,” said Patrick Ryan, an associate professor of
pediatrics at the center. “I haven’t seen anything like it before.”
A version of this article appears in print on March 3, 2016, on Page A9 of the New York edition with the
headline: Toxic Moss Sends Shivers Through Oregon City.
© 2017 The New York Times Company
Exhibit 16
State Finds Alarmingly High Arsenic, Cadmium Levels Near Two SE Portland Schools - ... Page 1 of 11
MENU 
BLOGTOWN
NEWS
State Finds Alarmingly High

Arsenic, Cadmium Levels Near Two
SE Portland Schools
by Daniel Forbes • Feb 3, 2016 at 2:06 pm
Like 4.6K Share Tweet
http://www.portlandmercury.com/BlogtownPDX/archives/2016/02/03/arsenic-cadmium-l... 11/17/2017
GOOGLE
A portion of the Bullseye Glass facility in SE Portland
Within days, state officials are slated to release the alarming results of a
monitoring program of airborne heavy metals, including arsenic, conducted this
past October in inner Southeast Portland, the Mercury has learned.
The state Department of Environmental Quality and the Oregon Health Authority
plan to announce that DEQ data indicate a monthly average of 49 times the state
air-safety benchmark level for the neurotoxin and carcinogen cadmium, and 159
times DEQ's air-safety goal for the carcinogen arsenic.
Though DEQ is still determining roughly how far these hazardous air pollutants
(as they're officially known) have spread, most immediately at risk are two
Portland schools—Cleveland High School and Winterhaven K-8— and a 100-child,
private day care facility on the nearby Fred Meyer corporate campus that serves
children as young as six weeks old.
The likely culprit for all this, say state officials: Bullseye Glass, which has its
main factory at 3722 SE 21st. Founded in 1974, Bullseye is a sizable art and
architectural glass manufacturer that boasts 140 employees at its Portland
headquarters and operates satellite facilities north of Oakland, in Sante Fe, and in
a suburb north of New York.
“I can say, yes, we're confident it's Bullseye,” said Sarah Armitage, a DEQ air toxics
specialist and the agency's point person on its investigation.
David Monro, DEQ's air quality manager for the Northwest Region said:
“Bullseye?—yes, I think it's the source of the cadmium and arsenic we found. It
passes the straight-faced test.”
Oddly enough, the way Oregon's environmental regulations are structured, there's
not a thing DEQ can do to force Bullseye to alter its manufacturing processes and
limit its toxic emissions. That's because the regulations are geared to much larger
facilities—think companies that mass produce beer bottles—rather than high-end
art glass manufacturers.
Under its state permit, the company is legally allowed to emit 10 tons of any given
air pollutant a year, or 25 tons for any combination of two or more toxics spewing
from their stacks. Those weights, expressed in tons, apply not to the physical raw
material involved, but to the amount of aerosol emissions—the weight of the
smoke, or smog, or plume.
According to an April 2011 DEQ “Discharge Permit Review Report,” Bullseye used
6,000 pounds of hazardous raw materials in 2009, which would have made it
impossible for its emissions to even approach 10 tons. The company’s totally in the
clear as far government limiting its activities—children across the road
notwithstanding.
“They're in compliance with their permit,” said Monro. “DEQ can't stop them.”
Armitage put it this way: “We're finding out the regs don't control the risk from
glass.”
Keith Dubanevich, an environmental attorney with Portland law firm Stoll Berne,
offered this perspective: “Environmental regulations take place in one-size-fits all
fashion.” So small firms like Bullseye slip through the cracks. Ultimately this
means, he added, “We as a society are willing to tolerate pollution.”
Be that as it may, Stuart Batterman, a professor of both environmental health and

environmental engineering at the University of Michigan, said, “That site needs to
be brought under control.”
According to that 2011 DEQ Bullseye permit review, “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.” DEQ notes that
Bullseye used 825 pounds of arsenic in 2009, much of it shoveled into a furnace to
be melted along with all the other raw material to give some very nice glass its
pretty color. The company website notes that it makes 27 different glass products
that contain “more than 0.5% cadmium.”
Bullseye founder and co-owner Daniel Schwoerer was reached by phone Monday
afternoon, a short time after Monro left his building.
Shaken by just then learning DEQ's findings, Schwoerer said, “We were not aware
of potential emissions. All I can say is we're a good citizen. We're concerned.” He
added, “I know we're in compliance with DEQ and other agencies…. We've done
everything within the law to work with these materials.”
Schwoerer referred the Mercury to a staffer he said had more technical expertise:
Eric Durrin, who minds the company’s finances. Durrin offered little beyond four
or five robotic repetitions that “We operate our factory in full compliance with our
discharge permit.” Asked what equipment Bullseye had in place to limit fugitive
emissions, he stated at least twice, “We handle our raw materials in a safe and
professional manner.” But Durrin was unfamiliar with the “baghouse” air
pollution control device that DEQ requires his company deploy. (Monro inspected
it on Monday and said it was in good shape.)
Durrin pointed to another Bullseye employee, Sam Andreakos, who he said was
more involved in production, and would know better. Asked his awareness of
cadmium as a neurotoxin that recent research indicates may be thought of as
somewhat analogous to lead, Durrin said, “My training is in accounting.”
Andreakos, a “glass chemist” with Bullseye, declined to speak with the Mercury,
saying “I don’t feel compelled to talk you.” Neither Bullseye co-owner Schwoerer
nor Durrin replied to questions about whether the company would commit to
suspending its use of arsenic and cadmium.
Ultimately of course, any decision rests with the private company’s co-owners
Schwoerer and business and life partner Lani McGregor, who sits on the Portland
Art Museum’s board of trustees.
An aerial view showing Bullseye Glass's proximity to Fred Meyer corporate headquarters, a
city park, and Cleveland High School G O O G L E
DEQ establishes safe air goals known as Ambient Benchmark Concentrations

(ABCs); for cadmium the figure is 0.6 nanograms per cubic meter (ng/m3) of air;
for arsenic, it's 0.2 ng/m3. The monthly average DEQ obtained in 18 samples it
collected with the current gold-standard monitor from October 6 to November 2
was 29.4 ng/m3 for cadmium and 31.7 ng/m3 for arsenic according to Armitage.
On some days, depending, apparently, on Bullseye's production schedule, the

amount of fugitive cadmium released just minimally exceeded Oregon's ABC safe-
air goal of 0.6 ng/m3, Armitage said. But on any given day, the amount of
cadmium impacting homes and schools and businesses might have far exceeded
the already dire monthly averages mentioned above.
For instance, according to Armitage, the DEQ air monitor that spent the month in
a Fred Meyer parking lot cheek-by-jowl with Bullseye obtained a daily cadmium
level of 195 ng/m3; another day, the figure was 133 ng/m3. Those levels are 325
and 222-times DEQ's safe-air goal.
The three highest daily readings for arsenic were 101 ng/m3; 97 ng/m3; 93 ng/m3,
according to another scientist involved in the monitoring. That's hundreds of
times DEQ's safe-air goal for arsenic, based on its potential as a carcinogen, of 0.2
ng/m3.
It's unknown how constant October's dangerous levels have been over Bullseye’s
42 years in business.
Aware of DEQ's findings, the Mercury reached out on Tuesday to the management
of the day care facility at Fred Meyer's headquarters, KinderCare Education LLC,
and alerted them to the toxic plume that washed regularly over the building—at
least this past October.
KinderCare Health and Safety Director Stephanie Kuntz replied by email.
“We were caught entirely unaware that any testing had even occurred, and are
horrified to hear that the testing apparently indicated that potentially harmful
chemicals were present in the air at the time….” Kuntz wrote. “Until we know more
about the state of the air and soil quality at the center and can assess the risks of
exposure present, if any, we will keep children indoors.”
Kuntz says her day care has reached out to the Multnomah County Health
Department about the issue and has been told that new filters on its ventilation
system will help.
“We are informed by them that proper filtration on an HVAC system should
materially protect the air quality in our center,” she wrote. “They did not
recommend any additional actions in response to the issue at this time….”
Batterman, the University of Michigan professor, said new-generation HVAC

filters “can reduce indoor concentrations of the toxic by two times or three times
the levels of the outside, ambient air.” Asked whether that should provide much
reassurance to parents of kids exposed to cadmium levels 49 times the state
benchmark and arsenic 159 times that level, he said no.
Batterman added that keeping children inside lowers exposure, but does not
eliminate it. Asked about DEQ's findings in general, he termed cadmium and
arsenic known carcinogens and said, “I'd be very concerned…. There are lots of
potential effects.”
Oddly enough, DEQ actually alerted Bullseye this past September that it was about
to set up an air monitor close by. The agency informed Bullseye's Durrin.
To their credit, both the DEQ and the OHA have been working at a feverish pace
since receiving October's data on January 20th. Once the Mercury independently
learned of the unfolding disaster, both Armitage and Oregon Health Authority
toxicologist David Farrer granted frank interviews.
In conjunction with the Multnomah County Health Department, both agencies will
be informing the public of their findings. The delay is due to the formulation of
“risk maps,” which will indicate, to some degree, how far the cadmium and arsenic
spread from its source.
That involves crunching the data from the Fred Meyer parking lot along with
DEQ's air monitors located in St. Johns, at North Roselawn, and a third location.
The maps should be completed this week, and then the public announcement will
be made, perhaps Wednesday.
In fact, the agencies have taken tentative steps toward alerting the public. On
Tuesday evening, after being questioned by the Mercury, the DEQ briefly posted a
press release on its findings, which announced: “Preliminary data showing the
existence of high levels of cadmium and arsenic in the air near S.E. 22nd Ave. and
Powell Boulevard in Portland are prompting state agencies to investigate potential
health risks from exposure to these metals.”
The agency subsequently took the release down, and has since posted a shorter
version.
Portlanders can take some small comfort from the fact that there's no Flint-
Michigan-drinking-water style cover-up here.
Armitage and her DEQ colleagues have been trying to determine the source of the
elevated cadmium that has fouled Portland's air since at least 2004. She said,
“We've been hunting for it for three years, and it looks like we found it.”
DEQ was alerted to the likely source by a U.S. Forest Service study of air toxics
that show up in moss. Once the initial data hit Armitage's desk two weeks ago, it’s
been all hands-on-deck, she says, to generate those risk maps that OHA wants so
as not to unduly alarm all of Portland.
Still, any backyard gardeners growing leafy vegetables such as kale, which
particularly leach up cadmium from the soil, well might consider eating no more
till they get their soil tested.
Stoll Berne's attorney, Keith Dubanevich, said “If you're a homeowner living in the
area, the argument can be made that your property value has decreased.”
Daniel Forbes is the author of Derail this Train Wreck. He lives in Portland,
and can be reached at ddanforbes@aol.com.
MORE COVERAGE:
Bullseye Glass Has Suspended Use of Arsenic and Cadmium Because of

Air Quality Concerns
Portland Public Schools Is Ordering Air Tests Because of Arsenic,

Cadmium Concerns: "We Need A Public Meeting"
Soil Near Bullseye Glass Contains Arsenic and Cadmium—And Other

Things Officials Told Parents Thursday
 71
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Exhibit 17
Bullseye source test results, DEQ's actions
to identify and control the unknown
hexavalent chromium source
Question and answers
Contact: Keith Johnson, johnson.keith@deq.state.or.us
What does DEQ know about hexavalent chromium sources detected in

the vicinity of the Bullseye Glass facility?
An analysis of meteorological data during periods of higher chromium detections indicates that the source is
likely at or in the vicinity of Bullseye Glass. Even so, DEQ has completed in-depth analyses to identify other
permitted and unpermitted sources of hexavalent chromium in the vicinity of Bullseye Glass. Actions include
review of permit files and city tax maps and on-site tours, which led to three formal inspections but no other
viable leads. The leading potential other source, the Electro-Chem facility, does use hexavalent chromium
(and limited amounts of trivalent chromium) but based upon its location, and an analysis of its processes and
controls and wind data), it does not appear to be a likely source of the monitor spikes.
DEQ also notes a presence of many mobile, diffuse sources of hexavalent chromium in the area, namely
the transportation infrastructure adjacent to a daycare center. This includes a busy rail yard, high-
trafficked thoroughfares, a TriMet bus barn and several trucking dispatch yards. Diesel exhaust from
these sources likely contributes to an elevated background of hexavalent chromium but is not likely to
cause the spikes.
Why would hexavalent chromium be emitted from Bullseye? Aren’t they

prohibited from using chromium? What is DEQ doing to control these emissions?
Bullseye Glass voluntarily ceased using chromium in February, and currently cannot use chromium in
glass making in accordance with DEQ’s temporary rules. However, on May 18, 2016, DEQ conducted a
multi-media inspection of the Bullseye Glass facility. DEQ evaluated the facility’s materials handling
protocol, waste management practices, furnace management during melting and other process details
related to emissions.
DEQ inspected the roof vents hoping to better understand the degree to which vent stacks have build ups
of residual coatings related to the furnaces below. There was evidence in several vent stacks of substantial
build up of caked, cooled particulate matter that forms crystalline solid structures within the stacks. DEQ
viewed the drum into which Bullseye Glass accumulated these solids when individual vent stacks are
cleaned out.
DEQ also analyzed a report on when each vent was cleaned, and pulled a sample for analysis of the drum
containing the cleanout solids. Review of the results, which were received in early June, indicated
substantial concentrations of lead, arsenic, total chromium and cadmium in the residuals. Upon further
testing, in late June, DEQ found the concentration of hexavalent chromium in these solids was elevated,
at 278 parts per million.
Bullseye source test results 1

If these residuals remain in the vent stacks, it is possible that this is the source of monitored readings. To
address this possibility, DEQ is requiring Bullseye Glass to complete a thorough cleanout and
replacement of potentially contaminated stacks in July and August. Some of this work will be performed
in conjunction with the installation of additional baghouses at the facility in August.
What about the cement processing facility across the street from the daycare center?
During the same time period of the Bullseye inspection in May, DEQ and the U.S. Environmental
Protection Agency (EPA) inspected the Lehigh Cement Company, which is located across the street from
the daycare center. Cement powders, the feedstock for this transfer facility, contain naturally occurring
concentrations of hexavalent chromium.
The agencies conducted series of inspections of railcar unloading procedures based on production records
detailing which days cars were unloaded. Inspections revealed that dusts are at times released into the air
during railcar unloading. Given the close proximity of the facility to a daycare center, the dusts likely
have some impact on the monitored readings prompting DEQ to obtain two different samples from
Lehigh cement shipments. The results for each of these samples showed 17 parts per million hexavalent
chromium in the cement from a California shipment and 53 parts per million from a shipment from
Vancouver, B.C.
To address this, DEQ is working with Lehigh cement to install additional control devices to minimize
dust emissions during off loading. Some of this work is complete, and DEQ expects new controls to be
completed in the coming weeks.
DEQ has the results of testing of the baghouse control device at Bullseye Glass. Is the
baghouse operating safely?
DEQ has completed a review of the testing results. According to verified test results, the baghouse is
controlling particulate (dust) emissions properly, at a rate of 99.8 percent. This meets the rule
requirement which says that the control rate must be 99 percent or greater.
While the vast majority of the chromium used in the melting process remains in the glass, one of the
objectives of the source test was to understand the conversion of trivalent chromium (used in some glass
making recipes at Bullseye Glass) to hexavalent chromium when particulate emissions leave the furnace.
Tests indicate that on average 98 percent of trivalent chromium emitted from the furnaces is converted to
hexavalent chromium.
Tests also were performed to understand how much of the chromium leaving the furnace is captured by
the baghouse. A full analysis for this was not possible during the testing, and more testing is needed to
better understand this rate, and Bullseye Glass remains prohibited from using chromium in glass making
at this time.
DEQ’s comprehensive analysis of the test results is available here:

Bullseye Glass Source Test Review Report, June 20, 2016
I’m worried about chromium emissions from factories like this. Does DEQ have an
inventory of permit holders who use chromium? Who are they?
Many sources that may emit chromium are known, and appropriate controls, set forth both in EPA and
DEQ rules are in place. However, to ensure all sources have been considered, DEQ has developed and

published a list of all permit holders who are known, or have the potential to emit metal hazardous air
pollutants. A significant portion of these permit holders will be inspected in the coming months to
evaluate whether there are any previously unknown emissions of concern. Based on what we learn, our
ongoing regulatory reform process will be designed to make sure we identify and properly control those
emissions in a way that is protective of public health.
How does DEQ know that chromium is not being converted into hexavalent chromium in
every manufacturing process in which chromium is used in a furnace? How do you know
this?
The use of chromium in a furnace, such as at Bullseye Glass, as an addition as a raw ingredient, is a
relatively unique manufacturing process that DEQ is continuing to learn more about as more data
becomes available. DEQ has found that certain conditions, unique to Bullseye Glass, are likely
encouraging the conversion of chromium to hexavalent chromium. In fact, the test was designed to
encourage this conversion so that worst case reading could be made. Other types of furnaces may not
produce as much hexavalent chromium because they are smaller, and are heated electrically, without
adding oxygen to the furnace. Other manufacturing furnaces that may emit chrome do so because chrome
is present as a naturally occurring element, such as in metal smelting.
DEQ’s review of these sources is ongoing, and coupled with ongoing monitoring and review of moss data
(in the Portland area) should allow us to better identify sources of chromium emissions that we don’t
know about, and ensure they are well understood and controlled.
Does DEQ know whether every glass maker that uses chromium is converting it to
hexavalent chromium in the same way as Bullseye is doing? If DEQ does not know, how
many other glass manufacturers are there in Oregon, and what can DEQ do to determine
whether or not their conversion rate is like that apparently detected at Bullseye?
DEQ is learning more all the time about the colored art glass manufacturing process, and glass melting in
general. DEQ has identified all the glass making companies in Oregon that produce art glass on a
commercial scale, and is working with them to ensure they come into compliance with the new temporary
rules. Based on our understanding of the different glass making processes, it is unlikely that chromium is
being converted to hexavalent chromium in smaller furnaces, since they do not add oxygen as part of the
melting process. It remains important, however, to ensure the emissions are controlled since other metals
may be present.
Accessibility
Documents can be provided upon request in an alternate format for individuals with disabilities or in a
language other than English for people with limited English skills. To request a document in another
format or language, call DEQ in Portland at 503-229-5696, or toll-free in Oregon at 1-800-452-4011, ext.
5696; or email deqinfo@deq.state.or.us.

Exhibit 18
Protest planned, urging Portland glass company to cease operations | KGW.com Page 1 of 4
Group protests SE Portland glass company over toxics

KGW Staff , KGW 11:54 PM. PST February 16, 2016
PORTLAND, Ore. -- As the state continues to investigate high

levels of cadmium and arsenic found in air quality tests in
some areas of Southeast Portland, a group of concerned area
residents gathered outside Bullseye Glass to protest the
company's role in producing the high levels of toxics.
(Photo: Maggie Vespa) About 80 people from the neighborhood group Eastside
Portland Air Coalition want Bullseye to cease operations due
to the air quality concerns detected just south of Portland’s
Southeast 22nd Avenue and Powell Boulevard.
Background: High levels of toxins detected in SE Portland

(http://www.kgw.com/news/local/high-levels-of-cadmium-arsenic-detected-in-se-
portland/32360056)
The group delivered a letter to Bullseye before Tuesday night's protest, demanding the business
halt operations “until they can guarantee 100% toxin free emissions and use state of the art
technology and air filtration systems.”
Photos: Protest at Portland glass company (http://www.kgw.com/news/photos-protest-at-

portland-glass-company/45072096)
Bullseye responded, explaining that the company is doing everything it can to ensure the
community is safe.
Toxics in SE Portland - What you need to know (http://www.kgw.com/news/health/toxins-

in-southeast-portland-what-you-need-to-know/39643147)
Bullseye employees spoke with the protesters, explaining they are doing their best to resolve the
situation but don't have the proper guidelines from the Department of Environmental Quality.
http://www.kgw.com/news/health/protest-planned-urging-portland-glass-company-to-cea... 11/17/2017
"The DEQ doesn't have enough answers and our business doesn't have enough answers," one
employee said.
Watch: Bullseye Glass talks to protesters (http://www.kgw.com/news/local/watch-

bullseye-glass-talks-to-protesters/45064614)
My Videolicious Video
The protesters were not swayed by Bullseye's explanation and at one point chanted "please get
filters."
Watch: Protesters outside Bullseye Glass (http://www.kgw.com/news/local/my-

videolicious-video-4/45056348)
My Videolicious Video
"Good neighbors don't hide behind weak laws," one protester yelled.
"Our community will support you if you do the right thing," another protester said.
More: Bullseye Glass says toxic air reports hit hard (http://www.kgw.com/news/bullseye-
glass-toxic-air-reports-hit-like-a-ton-of-bricks/44268600)
Bonnie Ingersoll came with her husband and four-year-old son, who, she found out last week,
has cadmium in his blood.
She says, while his levels aren’t alarmingly high, she worries about kids living near them.
“I’d been seeing all these stories of families and babies and babies playing outside and playing
in the dirt. I'm not done with this issue until everyone's in a better place with it,” she said.
According to the DEQ, the glass company has not broken any rules and is in compliance with its
permits. The company recently issued a statement acknowledging the tests and problems and
Bullseye also immediately stopped use of arsenic and cadmium in the making of their products.
Governor Brown to DEQ, OHA - I want answers (http://www.kgw.com/news/gov-brown-to-
deq-oha-i-want-answers-by-friday/39197768)
DEQ and the Oregon Health Authority have scheduled a Community Open House
(https://public.health.oregon.gov/newsadvisories/Documents/metals-emissions-feb-18-
meeting.pdf) to further discuss the issues. The event will be held Thursday, Feb. 18, at Tubman
Middle School, from 5 to 9 p.m. Childcare will be provided to anyone who needs it.
Here is a copy of the letter delivered to Bullseye on Tuesday:
Dear Mr. Schwoerer and Ms. McGregor,

We are a concerned group of residents, parents and business owners. Many of us have been
your neighbors for decades. We have organized in response to the information released by the
DEQ only two weeks ago regarding unsafe levels of arsenic and cadmium in our local airshed.
Many in our group have reached out to you, individually, to request a negotiation.
It has been, and remains to be, our hope to work with you as an ally.
Please join us in setting an example to Portland and our nation, that you can operate a
successful
business, maximizing profits, while prioritizing the health of your employees and neighbors.
Announce the decision to immediately cease the use of all forms of chromium, lead, nickel and
other materials that the Department of Environmental Quality, Oregon Health Authority, and/or
Environmental Protection Agency have determined may negatively impact the health of those
living, working, attending school and playing in parks in our airshed. Make a commitment to
continue this suspension until industry best practice level pollution control technology is in place.
We also request that you contact Eastside Portland Air Coalition on or before Tuesday, February
16th at 3:00 pm to arrange a meeting with members of our group so that we can discuss how to
move forward together.
We are willing to take every step required to stop the toxic emissions coming from your facility.
We hope you can see the advantages to being a successful humanitarian and business leader.
Our mutual concern will always be the health of your employees and neighbors.
Your Neighbors,
Eastside Portland Air Coalition
Here is the statement issued by Bullseye Tuesday, in response to the letter from the
Eastside Portland Air Coalition:
This is a really difficult issue. We understand why our neighbors are concerned, and we hear
them. We are concerned too. We've been a part of this neighborhood for a long time and half of
our employees are raising families here. We'll plan to come out, make sure folks are warm and
dry, and listen to what they have to say. Ultimately, we have to look to DEQ for guidance on
what our next steps should be, but we think it's really important that the neighborhood has a
voice in this conversation.
Top local headlines:
Portland home-selling tactics put extra pressure on buyers

(http://www.kgw.com/money/consumer/portland-home-selling-tactics-putting-even-more-
pressure-on-buyers/44239670)
Watch: Jimmy Fallon sits down with KGW's Joe Donlon

(http://www.kgw.com/entertainment/fallon-for-web/44232577)
Broken systems let teachers flee trouble pasts

(http://www.kgw.com/news/investigations/broken-discipline-tracking-systems-let-teachers-flee-
troubled-pasts/44181258)
Neighbors fed up with crime in Portland's Alphabet District

(http://www.kgw.com/news/crime/neighbors-fed-up-with-crime-in-portlands-alphabet-
district/44219580)
Follow us on Facebook (https://www.facebook.com/KGWTV8) for the latest breaking news

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Exhibit 19
11/17/2017 SE Portland 'shows solidarity' at air quality meeting
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Watching out for you
SE Portland 'shows solidarity' at air quality meeting

Abernethy Elementary holds community meeting
Andrew Dymburt and KOIN 6 News Staff

Published: February 1 7, 201 6, 5:34 pm | Updated: February 1 7, 201 6, 1 1 :1 7 pm
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Residents, activists, scientists and doctors came together at Abernethy Elementary School Wednesday night, working together to
clear the air. (KOIN)
PORTLAND, Ore. (KOIN) — A community meeting regarding toxic metals in the air was held just one day after dozens
gathered to protest outside Bullseye Glass Company (http://koin.com/2016/Q2/16/neighbors-to-bullseye-close-until-no-
more-chromium/1 in Southeast Portland.
Residents, activists, scientists and doctors came together at Abernethy Elementary School Wednesday night, working
together to clear the air.
"I can't just sit here and be worried about things," one attendee said. "I have to do something actionable."
http://koin.com/2016/02/17/abernethy-elementary-community-meeting-cadmium-arsenic-bullseye-glass-02172016/ 1/3
11/17/2017 SE Portland 'shows solidarity' at air quality meeting
Bullseye Glass voluntarily stopped using arsenic and cadmium (http://koin.com/2016/02/1Q/high-levels-of-arsenic-
cad m iu m-i n-a i r-not-i llega I/), but some neighbors said that's not enough. They want Bullseye to shut down entirely until
they feel safe.
"We're really hoping to build on this and continue until we get statewide
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regulations," Susan Beal with the East Side Portland Coalition said.
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A legal coalition, media liaisons and a legislative team were at Wednesday's L
,
meeting, using their unique backgrounds to help move the case forward.
"It shows solidarity," Sheryl Maloney with the legislative team said. "Instead
of people just going to Salem and screaming, we're actually going there
(https://lintvkoin.fi les.word press.com/20
informed and bringing people that have the right strengths to talk about the
meeting.jpg)
right things when we get there."
Residents, activists, scientists and doctors
came together at Abernethy Elementary
Another meeting is scheduled for Thursday at Tubman Middle School.
School Wednesday night, working together
to clear the air. (KOIN)
On Tuesday, February 23 many residents will take buses to Salem for a
legislative session in front of the House Energy Committee.
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The Bullseye Glass Factory on SE 21st Avenue. (Bullseyeglass.com)
Top News
The things they find when Oswego Lake gets lowered

The Lake Oswego Corporation said more than 3000 homes have...
i nr
http://koin.com/2016/02/17/abernethy-elementary-community-meeting-cadmium-arsenic-bullseye-glass-02172016/ 2/3
Exhibit 20
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Gov. Brown Launches Cleaner Air Oregon
By Angela Ruffoni (httD://www.kxl.com/author/angela-ruffoni/1 | Apr 6, 201 6 @ 5:45 PM

(http://www.kxl.eom/author/anaela-ruffoni/l
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text=Gov.%20Brown%20Launches%20Cleaner%20Air%200reaonSurl=http%3A%2F%2Fwww.kxl.com%2Faov- u=http%3A%2F%2Fwww.kxl.C(
brown-launches-cleaner-air-oreaon%2F1 launches-cleaner-air-oi
SALEM, Ore - Clean air, public health, and environmental dangers have been hot topics in recent months for Portland and the rest of
the state. Today Governor Kate Brown announced the launching of the Cleaner Air Oregon program to help with the efforts to inform,
regulate, and correct environmental hazards or concerns throughout the state.
Three main elements of the program deal with resources, the governor set aside $2.5 million from the special session to help support
and develop the plan. Leadership, Pete Shepherd has been appointed the interim director at DEQ and authority as the DEQ and Oregon
Health Authority will be working together and will now be empowered to take action based on the content of emissions as opposed to
only being able to set equipment standards and limits on the volume of emissions..
The following is part of the statement released by the Governor's office:
"Clean air is fundamental to good health. I am deeply concerned that federal and state air quality programs do not directly consider
public health in regulating certain classes of industrial air emissions. This must change.
"The Cleaner Air Oregon program is a big step forward, giving Oregonians more tools to protect air quality and public health, and
providing Oregon families ready access to information about industrial emissions near their homes.
"Cleaner Air Oregon has three components. The first is new agency leadership at the Department of Environmental Quality (DEQ).
"I am pleased to announce that, at my recommendation, the Environmental Quality Commission (EQC) has appointed Pete Shepherd as
interim director at DEQ. As former Deputy Attorney General, Special Counsel, and head of the Department of Justice's Consumer
Protection section, Pete is a highly respected state agency administrator with substantial governmental and private sector experience.
He will provide a steady hand as the EQC conducts a nationwide search for a permanent DEQ director. I greatly appreciate his
Exhibit 21
About - Eastside Portland Air Coalition
web.archive.org /web/20170221013210/http:/eastsideportlandair.org/about/
We learned that we’ve been breathing dangerously high levels of cancer-causing heavy
metals
On February 3, the Portland Mercury reported that an art-glass factory at SE 22nd Avenue and Powell Boulevard
was emitting dangerous levels of toxic air pollutants. Prompted by an innovative U.S. Forest Service study aimed at
pinpointing sources of air pollution by sampling moss, DEQ had performed air monitoring tests near Bullseye Glass
the previous October.
The test results revealed levels of airborne arsenic and cadmium averaging
159 and 49 times the state’s safety goals, respectively. Bullseye’s glass
furnaces had been operating without pollution controls since 1974. Some of
us have been huffing their fumes for 42 years.
Then we looked at how those numbers translated to health

risks
Exposure to arsenic and cadmium, just two of dangerous pollutants

detected near Bullseye, can cause serious health risks such as lung and
bladder cancer. According Oregon Health Authority (OHA), a person
breathing the air near Bullseye over a lifetime would face an excess cancer
risk of one in 20,000 from cadmium inhalation alone. The agency has not
released health risk estimates for arsenic, the metal found at levels of even
higher concern, or addressed combined health risks from exposure to
multiple pollutants. And while the agency has advised that for most glass
factory neighbors, short-term and long-term health risks are low, it has not
revealed the basis for that conclusion. From our vantage point, it appears
likely the risks have been high enough to kill one our neighbors.
We got together and raised a ruckus – and we got some results
1/2
Eastside Portland Air Coalition (EPAC) began forming via social media the
day the Mercury story broke. Over the next six weeks, under pressure from
our members – now more than 3,000 strong – DEQ reached agreements with
Bullseye and North Portland art-glass manufacturer Uroboros to temporarily
suspend use of three heavy metals (cadmium, arsenic and another dandy we
spotted on Bullseye’s batch list, chromium).
Governor Kate Brown led the legislature in passing a $2.5 million funding
package to beef up DEQ’s air monitoring activities and examine its rulemaking
precepts. And DEQ started two new rule-making processes – one temporary,
one permanent – to strengthen controls on art-glass factory emissions in
Oregon.
But we’re not satisfied
We need to be talking about more than art-glass factories. More than three
heavy metals. And more than a budgetary bonus for a broken system.
DEQ, OHA and the Multnomah County Health Department have joined forces to respond to the public’s emergent
concerns about air pollution. But from both a programmatic and public-information perspective, the agency response
has been strangely myopic.
For one thing, the moss study that got this whole thing started found evidence of numerous emission sources –
seven for arsenic, more for cadmium, nickel and lead – scattered throughout Eastside Portland and Milwaukie. But
the agencies have focused on just two sources, both glassmakers. For another, DEQ’s own files reveal that art-
glass manufacturers fill their furnace batches with dozens of dangerous materials, such as lead, nickel and
manganese. But the agencies have focused on just three. Why? As far as we can tell, it’s because the whole
system is screwy.
We need to be talking about the dysfunction – maybe corruption — exemplified by the

Bullseye loophole
It wasn’t a mistake. For decades DEQ has been granting permits to art-glass manufacturers to emit dangerous
levels of toxics from uncontrolled furnaces. When the EPA established stricter rules for glass manufacturing in 2007,
DEQ alerted Bullseye to lobby for an exemption that kept Oregon’s weaker rules in place. When Governor Brown
called upon DEQ earlier this year to adopt a “risk-based, health-based” system for regulating air pollution, it was a
clear admission that such a system does not presently exist. DEQ’s record of caving to the art-glass industry
appears to exemplify a pervasive agency culture of putting business interests ahead of public health.
We need to be talking about the larger air pollution problems these lapses have created for
the entire state. We’re taking action.
2/2
Exhibit 22
Exhibit 23
Exhibit 24
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Exhibit 25
Oregon Health Authority : Bullseye Glass Co. : Environmental Health Assessment : State ... Page 1 of 3
(http://www.oregon.gov)
About OHA  Programs and Services  Oregon Health Plan  Health System Reform 
Licenses and Certificates  Public Health 


Environmental Health Assessment

Environmental Public Health
(/oha/PH/HEALTHYENVIRONMENTS/TRACKINGASSESSMENT/ENVIRONMENTALHEALTHASSESSMENT/)
(/oha/)
 (/oha/Pages/index.aspx)  Public Health Division (/oha/PH/Pages/index.aspx)

 Environmental Public Health (/oha/PH/HEALTHYENVIRONMENTS/Pages/index.aspx)
 Tracking and Assessment (/oha/PH/HEALTHYENVIRONMENTS/TRACKINGASSESSMENT/Pages/index.aspx)
 Environmental Health Assessment
(/oha/PH/HEALTHYENVIRONMENTS/TRACKINGASSESSMENT/ENVIRONMENTALHEALTHASSESSMENT/Pages/index.aspx)
 Bullseye Glass Co.
 Bullseye Glass Co.

EHAP is in the process of developing a Public Health Assessment (PHA) for the community surrounding the
Bullseye facility in southeast Portland. The PHA will evaluate environmental data collected by the Oregon
Department of Environmental Quality (DEQ), to better understand the long-term health risks before and after the
facility took steps to reduce their emissions. The assessment will consider exposure scenarios in two segments-
before regulatory actions were taken (estimated by October 2015 monitoring data) and after regulatory actions were
taken (estimated by monitoring data from Bullseye since March 1,2016).
EHAP has convened a series of four Community Advisory Committee (CAC) meetings, made up of residents who
live and/or work within a half mile of Bullseye. These meetings have been designed to:
1. Receive input and feedback from the local residents into the exposure assumption and scenarios that will be
used in the PHA.
2. Educate participants about the PHA process and build community capacity in environmental health.
3. Develop relationships with local residents, to help build trust in the long-term PHA process.
4. Identify the most relevant way of communicating to the broader community about the PHA and the
conclusions and recommendations that will result from the process.
5. Ensure that community concerns are highlighted, incorporated and addressed through the PHA process.
EHAP will reconvene the CAC group for their input into the findings and recommendations of the public comment
version of the PHA.
Background Information
A study by the United States Forest Service (USFS) analyzed moss samples collected around Portland, for
concentrations of heavy metals. USFS found cadmium, a top concern of the Oregon Department of Environmental
Quality (DEQ), at the highest concentrations near the Bullseye Glass manufacturing facility. It isn't known how moss
concentrations may correlate to air concentrations that people actually breathe. To better understand what is in the
air, DEQ placed an air monitor near the facility, and the results showed cadmium and arsenic were at levels that
exceeded health benchmarks. DEQ and the Oregon Health Authority (OHA) continue to work together
(http://cleanerair.oregon.gov/data-and-current-actions/) to reduce metals emissions and determine long term health
implications.
Educational Materials
Plan for Public Health Assessement Related to Metals Emissions in Portland
(/oha/PH/HEALTHYENVIRONMENTS/TRACKINGASSESSMENT/ENVIRONMENTALHEALTHASSESSMENT/Doc
uments/metals/metals-plan-for-public-health-assessment-plan.pdf)
Healthy Gardening Resources

(https://public.health.oregon.gov/HealthyEnvironments/HealthyNeighborhoods/HealthyGardening/Pages/index.aspx)
Clinician Guidance: Cadmium Testing (/oha/PH/newsadvisories/Documents/se-portland-metals-emissions-
http://www.oregon.gov/oha/PH/HEALTHYENVIRONMENTS/TRACKINGASSESSME... 11/20/2017
physician-guidance.pdf)
Protective Benefits of Eating a Diet Rich in Calcium, Iron, Vitamin C, and other Micronutrients
Licenses and Certificates  Public Health 
(/oha/PH/HealthyEnvironments/HealthyNeighborhoods/HealthyGardening/Documents/air-toxics-metals-protective-

diet.pdf)
Reports
The release of a document for public comment is estimated for mid 2017.
Press Releases
May 9, 2016 - OHA continues assessments of long-term risks near Bullseye, Uroboros (/oha/ERD/Pages/Long-
Term-Risk-Assessments-Bullseye-Uroboros.aspx)
Related Websites
Cleaner Air Oregon (/deq/aq/cao/Pages/default.aspx)
Agencies collaborating on the Bullseye Glass Assessment efforts include:

• Oregon Health Authority (EHAP)
• Oregon Department of Environmental Quality (DEQ)
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Exhibit 26
Sourceld=6143&SourceldType=ll]
For information about the public health assessment visit:
http://public.health.oreqon.qov/HealthyEnvironments/TrackinqAssessment/EnvironmentalHealthAssesi
rhttp://publ ic.health.oreqon.gov/HealthyEnvironments/TrackinqAssessment/EnvironmentalHealthAsses
SEARCH
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LATEST UPDATES
MARCH 22. 2017
STATE RELEASES DRAFT FRAMEWORK FOR NEW HEALTH-BASED Al...

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Exhibit 27
Exhibit 28
Page 1

RINO PASINI, CHRISTIAN MINER,
JUDY SANSERI and HOWARD BANICH;
Plaintiffs,
vs. Case No. 16CV07002

corporation,
Defendant.
VIDEO DEPOSITION OF DAREN MARSHALL

November 20, 2017
9:00 a.m.
Marshall, Daren November 20, 2017
Page 131
1 you to falsify those drawings in any way?
2 A. Oh, absolutely not.
3 Q. Was there ever a time in your career that
4 either Mr. Schwoerer or Mr. Durrin asked you
5 for -- to falsify any information that would
6 be reconveyed to either EPA or DEQ?
7 A. Absolutely not.
8 Q. Did they ever ask you to hide information from
9 DEQ or EPA?
10 A. Not me, personally.
11 Q. And are -- are you really expecting us to
12 believe that Mr. Durrin would have said to you
13 "What we don't know can't hurt us"?
14 MR. PREUSCH: Objection,
15 argumentative.
16 THE WITNESS: That's what was said.
17 BY MR. GARTEN:
18 Q. And was he saying it in the context of the
19 fact that they were in full -- in full
20 compliance with DEQ's permits?
21 A. I can't answer that.
22 Q. Do you recall the circumstance under which he
23 would have said that?
24 A. I was asking to have the stacks, you know, the
25 emissions quantified and they didn't want to

Page 132
1 know the answer to that. And, the other
2 thing, it was financially expensive to have
3 that done.
4 Q. And you say "they didn't want" the answer to
5 that. Are you saying that Mr. Durrin said
6 "What we don't know can't hurt us"?
7 A. That is exactly what Mr. Durrin -- well, I
8 shouldn't say that. That's not exactly what
9 Mr. Durrin said. Mr. Durrin said "plausible
10 deniability" and then that's my meaning
11 towards "plausible deniability."
12 Q. And could you tell me when that took place?
13 A. I cannot.
14 Q. And was there anybody else that witnessed that
15 conversation?
16 A. I believe Sam Andreakos was there.
17 Q. And what did Sam say when --
18 A. I don't remember.
19 Q. And are you saying that if -- if I put Sam
20 under oath right now he would say that's the
21 conversation that took place?
22 A. I sure would hope so.
23 Q. Now, you testified earlier that you don't
24 believe that anything that Bullseye did would
25 constitute an outrageous and reckless

Page 139
1 REPORTER'S CERTIFICATE
2 STATE OF OREGON )
3 ) ss.
4 COUNTY OF CLACKAMAS )
5 Be it known that I took the video deposition
6 of DAREN MARSHALL on the 20th day of November,
7 2017, at Portland, Oregon;
8 That I was then and there duly authorized to
9 administer an oath;
10 That the witness before testifying was, by me,
11 first duly sworn to testify the whole truth and
12 nothing but the truth relative to said cause;
13 That the testimony of said witness was
14 recorded in Stenotype by myself, transcribed under
15 my direction, and that the video deposition is a
16 true record of the testimony given by the witness
17 to the best of my ability;
18 WITNESS MY HAND AND SEAL this the 21st day of
19 November, 2017.
20 ______________________________
21 Henry R. Weinbeck
22 OR. CSR #15-0437, Exp. 6/30/2018
23 RPR #812703, Exp. 12/31/2017
24
25

Lawsuit Filed by Southeast Portland Neighbors Against Bullseye Glass Co.

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Lawsuit Filed by Southeast Portland Neighbors Against Bullseye Glass Co.

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11/28/2017 3:27 PM

9 SCOTT MEEKER and ERIN MEEKER,

3 II. BACKGROUND ...................................................................................................................... 2

12 IV. CLASS DEFINITION ............................................................................................................ 7

14 A. The proposed subclasses are of the nature routinely certified by courts in

26 2. ORCP 32 (B)(1): Separate actions .......................................................... 21

27 3. ORCP 32 B(2): Class-wide injunctive or declaratory relief ................... 21

5 D. Notice Plan .......................................................................................................... 24

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

5 Adams v. Cooper Indus., Inc.,

9 Amchem Products., Inc. v. Windsor,

12 Bates v. Tenco Servs., Inc.,

17 Bernard v. First Nat’l Bank of Oregon,

22 Cal. v. Kinder Morgan Energy Partners, LP,

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

4 Flournoy v. Honeywell Int’l, Inc.,

9 Froeber v. Liberty Mut. Ins. Co.,

14 Hudson v. Peavey Oil Co.,

24 Lowe v. Philip Morris USA, Inc.,

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

4 Muniz v. Rexnord Corp.,

9 O’Connor v. Boeing N. Am., Inc.,

14 Penland v. Redwood Sanitary Sewer Serv. Dist.,

24 Silva v. Bullseye Glass Co.,

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

4 Torres v. Mercer Canyons Inc.,

9 State ex rel. Young v. Crookham,

14 Federal Rule of Civil Procedure 23 .......................................................................................................7, 22

15 Oregon Rule of Civil Procedure 32 .......................................................................1, 6, 7, 10, 14, 21, 22, 24

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

12 efficient, manageable, and superior to any other method.

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

2 Parties to confer on a notice and trial plan.

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

8 Bullseye. Ex. 1, Jones Dep. 79:24-80:10.

27 metals in those emissions—cadmium, arsenic, and hexavalent chromium—have created an

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

12 interpretation of analogous provisions of Federal Rule of Civil Procedure 23 as persuasive authority in

15 courts on class action settlements are persuasive”).

16 IV. CLASS DEFINITION

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

7 Collectively, the members of the subclasses are “Class Members.”

11 superior form of adjudication of case involving contamination of property by a hazardous chemical”).

26 injury to real property.

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

10 3. Plaintiffs are typical of the proposed subclasses.

13 90:21 (did not put in planned garden, not entertaining).

14 The Plaintiffs’ experiences reflect the experiences of others in their neighborhood, as

23 4. Plaintiffs and Plaintiffs’ counsel will adequately represent the class.

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

13 Dep. 87:11-15 (understand obligations of a class representative).

25 may be an essential part of adequate representation.”).

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

4 Compl. ¶ 66 (“Bullseye admits that Plaintiffs’ counsel are competent.”).

5 5. Plaintiffs provided notice of their intent to seek damages.

6 Miller, Federal Practice & Procedure § 1778 (3d ed 2016).

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

9 hypothetical assumptions rather than its actual use.”).

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .

8 (ED Mich Mar 17, 2006) (same).

28 P LAINT IF FS ’ ME MO R AN DU M I N KE LLE R R O HRB AC K L.L.P .