Bullseye Glass Co.
Meeker, et al. v. Bullseye Glass Co., Case No. 16CV07002
Multnomah County Circuit Court, State of Oregon
On January 18, 2019, Plaintiffs filed their Motion for Preliminary Approval of Settlement, seeking approval of a settlement that was reached with Bullseye. The settlement guarantees Bullseye will continue to use and maintain approved filters on all of its glass-making furnaces, and it creates a $6.5 million settlement fund. After Court-approved costs and fees, the remainder of the fund will be used to pay for a $1 million neighborhood air monitoring program, reimbursement of air emissions-related expenses, and payments to eligible Class Members.
At a hearing on January 23, 2019, the Court granted Plaintiffs’ Motion for Preliminary Approval of Settlement. In the coming weeks, information on how to participate in the settlement and file a claim will be sent to eligible Class Members. For more information on who is a Class Member, please see below. Once notice is sent to eligible Class Members, information will also be made available on the settlement website, www.BullseyeClassAction.com. A Final Fairness hearing on the settlement is scheduled for May 10, 2019.
On March 3, 2016, Keller Rohrback L.L.P. and the Law Office of Karl G. Anuta, P.C. filed a class action lawsuit against Bullseye Glass Co. due to the alleged emissions of arsenic, cadmium, and other potentially toxic metals from that glass making facility.
The lawsuit alleges that “[o]ver the past several decades, Bullseye has emitted sufficient amounts of toxic heavy metals to make Southeast Portland a “hotspot” of these pollutants” and that “Bullseye knew or should have known that it . . . has been emitting significant amounts of toxic materials.”
On February 2, 2018, Judge Stephen Bushong granted Plaintiffs’ Motion for Class Certification, certifying two subclasses of owners and residents of residential property, and appointing the Plaintiffs to represent those subclasses.
The subclasses are defined as:
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, which properties are preliminarily listed in Appendix A hereto.
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, which properties are preliminarily listed in Appendix A hereto.
The class area, defined in reference to expert modeling of Bullseye’s historic particulate emissions, is depicted here:
With the Court granting the motion for class certification, Plaintiffs may proceed to trial against Bullseye on behalf of the subclasses. The trial is currently set for January 14, 2019.
On December 13, 2017, the Court granted Plaintiffs’ motion to amend their complaint to add claims for punitive damages, which Plaintiffs did on February 13, 2018.
Additional information on the class certification motion and the motion to amend to add a claim for punitive damages are available in the Case Documents section below.
In February, Oregon state regulators first disclosed that the air in part of Southeast Portland has tested for extremely high levels of arsenic and cadmium, which are used to manufacture colored glass. According to the Oregon Health Authority, persistent exposure to high concentrations of arsenic can cause skin, lung, or bladder cancer, and the health effects for cadmium exposure include lung cancer and kidney damage. Additional information is available from the Oregon Department of Environmental Quality, the Oregon Health Authority, and Cleaner Air Oregon.
Attorneys in Keller Rohrback’s Complex Litigation Group have a history of successfully representing individuals and class members in a wide range of important environmental litigation. Whether working for victims of oil spills, communities exposed to toxic materials, or people who purchased contaminated or defective products, Keller Rohrback’s team of experienced environmental litigators have helped to protect people and the environment across the country. For example, Keller Rohrback represented 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.
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Complaint – 03/03/2016
Keller Rohrback Comment on Temporary Ruling – 03/17/2016
First Amended Class Action Complaint – 04/14/2016
Second Amended Class Action Complaint – 08/09/2016
Punitive Damages Motion – 07/26/2017
Punitive Damages Reply Brief – 09/22/2017
Motion for Class Certification – 11/28/2017
Motion for Class Certification Reply Brief – 01/29/2018
Third Amended Complaint – 02/13/2018
Motion for Preliminary Approval of Settlement – 01/18/2019
Bullseye Glass Timeline
Dec. 2013 – June 2014 – USFS collects, analyzes, and receives raw results for 346 moss and soil samples in Southeast Portland.
Nov. 2014 – Aug. 2015 – USFS collects, analyzes, and receives raw results for 164 additional moss samples from Portland Public Schools
June 2015 – DEQ identifies glass facilities as potential sources of cadmium and arsenic
January 2016 – Oregon Department of Environmental Quality (DEQ) releases preliminary data from air quality monitoring that shows elevated levels of arsenic and cadmium near Southeast 22nd Avenue and Southeast Powell Boulevard. The DEQ concludes that the air toxins were likely related to emissions from the Bullseye Glass Company manufacturing facility located at 3722 SE 21st Avenue.
02/04/2016 – Bullseye Glass notifies DEQ that it temporarily suspended all glass manufacturing operations at its facility that use cadmium and arsenic compounds. Additionally, Bullseye Glass releases a statement saying that they engaged an environmental consulting firm to evaluate the data, perform additional testing and potentially explore longer term options, as informed by the data.
02/12/2016 – Bullseye Glass Company agrees to suspend use of hexavalent chromium, and further agrees to stop using cadmium and arsenic.
02/19/2016 – OHA recommends not eating vegetables grown within a half mile
02/23/2016 – The CEO and co-owner of Bullseye Glass writes a letter to Oregon lawmakers, agreeing to stop using arsenic indefinitely.
03/04/2016 – Bullseye files a Notice of Intent to Construct with the DEQ for the installation of a baghouse on one existing batch glass melting furnace. They say construction will start 3/15 and be complete by 4/5.
04/12/2016 – Bullseye announces that their new baghouse is installed and they are able to use raw materials containing cadmium to make glasses again, in limited quantities in the controlled furnace.
05/19/2016 – DEQ and OHA send a letter to Governor Kate Brown requesting her to direct DEQ to issue a cease and desist order against Bullseye after new air data revealed that lead concentrations measured in air outside a daycare center near Bullseye were at concentrations that posed a substantial public health threat to children in the daycare.
05/19/2016 – DEQ issues a Cease & Desist Order to Bullseye requiring it to cease and desist using lead, arsenic, cadmium, all chromium compounds, cobalt, manganese, nickel and selenium in any uncontrolled furnace for the next 10 days.
06/06/2016 – DEQ and Bullseye sign a Mutual Agreement and Final Order that ensures state oversight of the use of hazardous metals in production.
06/10/2016 – The City of Portland’s Bureau of Environmental Services issues a violation against Bullseye for releasing selenium into the City’s stormwater collection system.
06/28/2016 – As part of an active investigation into metals in stormwater drywells, DEQ orders Bullseye to collect and analyze sediment and stormwater from one of its two drywells it uses to dispose of stormwater from building roofs.
07/15/2016 – Pursuant to the Mutual Agreement and Final Order, Bullseye provides the DEQ with the schedule and protocol that it would use to clean its furnaces.
07/21/2016 – DEQ requires Bullseye Glass Co. to clean its exhaust stacks and remove a buildup of chromium that new data suggest is likely contributing to the metal’s persistence in the air in southeast Portland. The deadline to complete the stack cleanout is September 1, 2016.
09/06/2016 – 24-hour air sampling near the Children’s Creative Learning Center, less than half a mile from Bullseye, reveals high selenium levels (887 nanograms/cubic meter of air).
09/16/2016 – DEQ conducts an inspection of Bullseye and confirms glass that Bullseye manufactured on September 6, 2016 contained selenium. Bullseye agrees to limit its use of selenium to no more than five pounds a day.
10/10/2016 –DEQ and Bullseye sign an agreement requiring Bullseye to clean the contaminated stormwater runoff in its drywells, which the DEQ found contained high levels of heavy metals.