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The owners of Bullseye Glass Co. filed a civil rights lawsuit in U.S. District Court in Portland on Tuesday against Oregon Gov. Kate Brown and state environmental regulators.
At the heart of the 88-page filing is the claim that when Brown and state regulators learned of high levels of airborne toxics near Bullseye's Southeast Portland colored art glass factory in 2016, they treated Bullseye more harshly than other Oregon companies that produce far more pollution.
"No Oregon business has ever been treated the way Bullseye was treated," the lawsuit says.
The suit, filed Dec. 12 by a team of former federal prosecutors, makes serious claims against the governor and her regulatory agency, the Department of Environmental Quality.
The suit alleges Brown knowingly punished Bullseye based on unproven science, held the company to far higher standards than other companies that emit vastly larger quantities of toxins, and moved against Bullseye for political gain rather than public safety.
The argument the lawsuit advances is contrary to the state's prevailing narrative: that Bullseye is corporate polluter that recklessly endangered the health of nearby residents. Bullseye's attorneys say instead that Brown and other state officials cynically manipulated public opinion to present the appearance rather than the reality of regulation.
"This case is about abuse of governmental power. It is about Oregon's government coddling huge industries with deep pockets and political ties," the lawsuit says. "And it is about how Oregon's government—when its lax enforcement and history of neglect got exposed—rushed to judgment and irrationally turned the full weight of its administrative and punitive powers on a small business, not the real polluters."
Brown declined to address Bullseye's claims.
"We cannot comment on the specifics of pending litigation; however, Gov. Brown is dedicated to ensuring clean air and water for Oregonians," says Kate Kondayen, a spokeswoman for the governor.
The Bullseye crisis flared up in early 2016 when Brown was running to serve the rest of former Gov. John Kitzhaber's term.
On Feb. 3, 2016, The Portland Mercury reported that the U.S. Forest Service, using novel testing techniques, had found high concentrations of airborne toxic metals in moss near Bullseye's factory.
The lawsuit says the Forest Service shared results of the moss testing with DEQ the previous year, but the agency did not notify Bullseye or the public.
The Mercury story touched off a media scrum and a series of emotional public meetings.
Brown issued a cease-and-desist order against Bullseye on May 19, 2016, ordering the company to stop using a variety of hazardous metals in its furnaces immediately.
"Public health and safety are my highest priorities," Brown said in a statement at the time. "This swift action and public notification will help ensure the well-being of local residents who live and work in the area. Clean air is vital to the health and safety of our community."
At the same time, the Oregon Health Authority advised people in the neighborhood not to eat vegetables from their gardens. The agency also temporarily closed a nearby day care center after high lead readings.
In the weeks that followed, the Multnomah County Health Department tested neighbors for evidence of lead DEQ accused Bullseye of producing.
Although that testing did not produce positive results, a Seattle law firm filed a $1 billion class action lawsuit against Bullseye on behalf of neighborhood residents seeking compensation for long-term health monitoring and diminished property values. That case is proceeding in Multnomah County Circuit Court.
In response, Bullseye, a 140-employee company founded in 1974 by two artists who still own it, hired two of Oregon's most experienced former federal prosecutors to examine the state's actions.
Kent Robinson retired in 2015 as the chief criminal prosecutor in the Oregon U.S. Attorney's Office after 35 years; his partner Allan Garten spent 20 years in that office, retiring in 2015 as its chief white-collar crime prosecutor.
Their lawsuit questions the validity of U.S. Forest Service moss testing, an approach never before used to monitor toxic emissions.
"There was one problem," the lawsuit says. "There was no scientific basis for predicting air quality based on metal in moss. But in their enthusiasm to promote the moss study and impugn Bullseye at every turn, defendants published the map [showing danger zones] without any attempt to verify it."
The lawyers also researched polluters that dwarf Bullseye in size and that produce vastly greater amounts and concentrations of hazardous emissions.
One such company was the Esco Corp. foundry in Northwest Portland. In its final year of operation, Esco, located on the edge of a densely populated residential neighborhood just six blocks from Chapman Elementary School, emitted 328,000 tons of pollutants, including 54 pounds of lead.
The lawsuit notes that Esco poured massive amounts of pollutants into the air above Portland for years with little pushback from DEQ.
But Brown ordered Bullseye temporarily shut down, the lawsuit says, "for emitting less than one-millionth of a gram of lead."
The lawsuit comes as Brown is again running for office—this time for a full four-year term. And it comes as she and DEQ prepare to ask lawmakers in the February 2018 session to expand the agency's enforcement authority via an initiative called Cleaner Air Oregon.
"This lawsuit could just be seen as a political swat at Gov. Brown," says Jim Moore, a professor of political science at Pacific University in Forest Grove, "but the key will be the comparison to Esco. They're both businesses that operated in Portland neighborhoods—the court will have to sort out whether they were treated the same."
Today, Bullseye operates under what the lawsuit says are the most stringent regulations placed on any Oregon manufacturer for emissions of chromium and particulates from chimneys. "This standard is more restrictive than the standard applied to the rest of Oregon industry," the lawsuit says. "The state can articulate no rational basis for treating Bullseye differently."
Bullseye seeks damages of $30 million.
Mary Peveto, president of the activist group Neighbors for Clean Air, hasn't seen Bullseye's lawsuit but remains skeptical of the company's claim that its civil rights were violated.
"What we'd like to see is more environmental regulation, period," Peveto says. "From a distance, it seems like [state regulators] had good quality information and they acted."