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By Peter Hayes
May 26 — A group of toxic tort plaintiffs' attorneys in the Northwest have put a new, green spin on the old criminal law adage “Follow the Money,” thanks to a recent government study.
And their updated mantra, “Follow the Moss,” may be one that more environmental lawyers will be repeating in the days ahead.
The study, conducted by the U.S. Forest Service and based on samples of moss taken in 2013 and 2015, shows elevated levels of heavy metals in hotspots around the Portland, Ore., area.
The USFS study prompted the Oregon Department of Environmental Quality to set up air monitoring systems which identified multiple manufacturing facilities with airborne emissions containing elevated levels of metals such as arsenic and nickel.
Two of those facilities are now named as defendants in class actions filed over the last two months by area residents who say their properties are polluted and their health jeopardized, in Resendez v. Precision Castparts Corp., Or. Cir. Ct., No. 16-CV-16164, filed 5/11/16 ; and Krueger v. Bullseye Glass Co., Or. Cir. Ct., No. 16-CV-07002, amended complaint filed 4/14/16 .
That litigation, and other local and federal regulatory action, could be just the start of a new wave of lichen-generated developments, attorneys and environmentalists interviewed by Bloomberg BNA say.
The study was published online in April by the journal Science of the Total Environment, 559 (2016) 84–93.
“It looks like a trend coming—in Oregon and throughout the Northwest,” Loren Dunn with Riddell Williams P.S. in Seattle told Bloomberg BNA. Dunn practices environmental law, and represents regional and national companies throughout the country.
An attorney for the plaintiffs in the proposed class case against Precision Castparts Corp., Noel Lowney with Kampmeier & Knutsen PLLC in Portland, said he would not be surprised to see more suits.
“Using moss data to pinpoint toxin hotspots should allow for greater accountability against polluters in the future and that could involve additional litigation, like we're seeing in Portland,” Lowney told Bloomberg BNA.
Mark Riskedahl, executive director of Northwest Environmental Defense Center, a non-profit environmental group, agreed more suits may come.
“Moss-mapping was a totally game-changing way of getting data points,” he said. “Lots of lawyers are thinking about this now, and asking `How do we get this data?' ”
Riskedahl acknowledged, however, that plaintiffs will face hurdles.
“Lawyers are looking at other facilities where there are likely to be similar patterns of demonstrable harm,” he said.
“But I don't know how attorneys will be able to show injury, and there may not be enough commonality,” said Riskedahl, referring to one of the requirements to pursue a suit as a class action under Fed. R. Civ. P. 23.
“So it may be more related to evaluation of the property and getting the soil cleaned up,” he said.
In addition, he said, many of the hotspots are not located near highly populated areas, and so are less likely to be the subject of class litigation.
The most recent suit, alleging trespass and nuisance, was filed against Precision Castparts, a Portland-based industrial goods and metal fabricating company recently acquired by Warren Buffett.
The proposed class of plaintiffs are homeowners in Multnomath County, Ore., who live near the manufacturer.
The complaint alleges the moss study shows high concentrations of arsenic and nickel in the vicinity of the facility, and the plaintiffs allege fear of the short and long-term health effects.
The earlier suit was filed in March against Bullseye Glass Co.—a maker of colored glass used by artists and architects—by nearby residents.
They allege nuisance, trespass and negligence. They want a halt to the use of arsenic, cadmium and chromium in Bullseye's glass production unless the company installs emissions controls.
The residents also seek medical testing, cleanup, damages and the establishment of a medical monitoring fund.
According to a summary of the study posted on the Forest Service website, the scientists who conducted the study “set out in a minivan armed with a ladder and collection equipment” and gathered 346 moss samples.
“Moss has been used to detect air pollution in forests since the 1960s,” the USFS summary says.
“Moss doesn’t have roots; it’s like a sponge, absorbing moisture and nutrients from the air, as well as contaminants. These contaminants are stored in the moss tissues, making them a living record of pollution levels in the surrounding environment,” it says.
After the Bullseye suit was filed, Gov. Kate Brown (D-Ore.) April 6 announced an initiative called Safer Air Oregon, under which the state will inspect hundreds of facilities.
The state's Environmental Quality Commission April 21 adopted temporary rules to address art glass makers, like Bullseye, which are not fully regulated under federal requirements. The state has proposed that those rules be made permanent.
On May 19, the governor took the unusual step of ordering the DEQ to issue a cease and desist order against Bullseye (31 TXLR 507, 5/26/16).
The Environmental Protection Agency has also begun to look at the art glass manufacturers.
In a February 25 memo, Janet McCabe, EPA acting assistant administrator for the Office of Air and Radiation, informed the EPA regional offices of the moss study.
McCabe also said the agency is investigating the applicability of 40 CFR Part 63, Subpart SSSSSS—National Emission Standards for Hazardous Air Pollutants for Glass—to art glass facilities nationally.
The EPA conducted inspections of Georgia art glass makers in March, and in April the agency issued a finding of violation to Indiana art glass maker Kokomo Glass Co.
Smith & Lowney PLLC and Kampmeier & Knutsen PLLC represent the plaintiffs against Precision Castparts.
Keller Rohrback L.L.P. and the Law Office of Karl G. Anuta P.C. represent the plaintiffs against Bullseye Glass Co.
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