valerie silva v bullseye lawsuit

7/26/2019 Valerie Silva v Bullseye Lawsuit

1/23

COMPLAINT

FOR

DAMAGES- 1of 11

T H E S U L L I V A N L A W F I R M

[email protected],SUITE 4600

SEATTLE

,

WASHINGTON

98104206.903.0504

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Kevin P. Sullivan, OSB # 162383Sullivan Law Firm701 Fifth Avenue, Suite 4600Seattle, Washington 98104Telephone: (206) 903-0504Facsimile: (206) 624-9292

[email protected]

U N I T E D S T A T E S D I S T R I C T C O U R T

D I S T R I C T O F O R E G O N

P O R T L A N D D I V I S I O N

VALERIE AILEEN SILVA andRICHARD SILVA a married couple,

Plaintiffs,

v.

BULLSEYE GLASS CO. an OregonCorporation,

Defendant.

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CAUSE NO.:

COMPLAINTFOR DAMAGES

PERSONAL INJURYACTION (28U.S.C.1332;28U.S.C.1391)

DEMANDFORJURYTRIAL

Plaintiffs allege:

PARTIES, JURISDICTION, AND VENUE

1.

Plaintiffs Valerie and Richard Silva, husband and wife, are residents of the state of

Washington.

Case 3:16-cv-01078-PK Document 1 Filed 06/14/16 Page 1 of 11


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COMPLAINT

FOR

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[email protected],SUITE 4600SEATTLE,WASHINGTON 98104

206.903.0504

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2.

Defendant Bullseye Glass Co. is an Oregon corporation with its principal office located in

Portland.

3.

There is complete diversity between the parties and jurisdiction is vested in this court

pursuant to 28 U.S.C. 1332. Each Plaintiffs damages exclusive of expenses and accruing

interest exceed $75,000. Venue is proper under 28 U.S.C. 1391 as defendant resides in

the District of Oregon and the incidents alleged herein took place in the District of Oregon.

BACKGROUND FACTS

4.

Plaintiff Valerie Silva, age 63, is employed by Fred Meyer at its Portland office facility

located at 22nd and Powell streets. This office facility is located across the street from

Bullseyes factory.

5.

Ms. Silva was diagnosed with stage IV (terminal) non-small cell lung cancer on

September 28, 2014. The cancer is located in both lungs. The cancer was caused by airborne

contamination. Ms. Silva never smoked cigarettes or used other tobacco products, nor did

her husband.

6.

Since her diagnosis, Ms. Silva has received regular medical treatment for her cancer.

Ms. Silva has suffered pain and suffering and loss of enjoyment of life as the result of her

cancer, the cancer treatment, and the prospect of an early death. Her mother lived until she

was 92 years old.

7.

Mr. and Mrs. Silva have a close and loving marriage. They are the parents of two

daughters and have four grandchildren. Ms. Silva has been severely emotionally traumatized



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COMPLAINT

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by her cancer diagnosis. Her husband Richard has likewise been severely emotionally

traumatized by his wifes cancer diagnosis and the devastating experience since her

diagnosis, and suffers loss of consortium. They will continue to suffer emotional harm from

this situation for the rest of their lives.

8.

On February 4, 2016, Ms. Silva received a notice at work that high levels of arsenic,

cadmium and hexavalent chromium were obtained at a testing site located in the Fred

Meyer parking lot. These contaminants had been emitted from the smokestacks at the

Bullseye facility across the street.

9.

Arsenic, cadmium and hexavalent chromium are classified as class I human

carcinogens by the US Department of Health and Human Services (DHHS) and the

International Agency for Research on Cancer. The U.S. Environmental Protection Agency

(EPA) and the State of Oregon Department of Environmental Quality (DEQ) have

established standards for the allowed emissions of these contaminants. In particular, the

EPA established National Emission Standards of Hazardous Air Pollutants (NESHAP) for

Glass Manufacturing sources, 40 CFR Part 63, sub part SSSSSS.

10.

According to the protocols and standards set forth by the World Trade Center Claims

Administrator (relying on scientific studies), airborne exposure for a period of as little as

approximately four years to these contaminants causes lung and other solid cancers. Their

toxicity and carcinogenicity have been well known in the United States for decades. In

addition, these contaminants act as cancer tumor promoters for lung cancer cells. The

suppliers of these contaminants provided Bullseye with Material Safety Data Sheets which

state that these contaminants are human carcinogens and thus Bullseye was on notice that

it was emitting carcinogens into the atmosphere.



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COMPLAINT

FOR

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11.

Bullseye began operation as a stained glass factory at its present location in 1974. As

part of the stained glass manufacturing process at its facility, large quantities of arsenic,

cadmium and hexavalent chromium are used regularly. Bullseye has continuously emitted

these contaminants into the air from this facility in southeast Portland for the past 40 years.

In 2014, for example, Bullseye used 1,800 pounds of arsenic trioxide.

12.

Bullseye knew or should have known that it had been emitting significant and unsafe

levels of these contaminants for decades. In fact, although it was aware of the dangers caused

by these contaminants, Bullseye lobbied and obtained from the EPA an exemption from

regulations for these contaminants so Bullseye would not have to treat or filter these

contaminants prior to emission.

13.

On July 27, 2010 the EPA sent Bullseye a letter which notified Bullseye that its

Portland facility was subject to 40 CFR Part 63 Subpart N, Manufacture of Glass in Periodic

Furnaces, attached as Exhibit A hereto.

14.

Portland residents complained to environmental regulators about emissions from

the Bullseye facility for decades. Nevertheless, Bullseye continued to emit these

contaminants.

15.

DEQ detected toxic levels in Portlands air over the past decade. DEQ did not

determine the source of the contamination until recently, as described below.

16.

Starting in 2012, the United States Forest Service began testing of moss in the

Portland area. This testing revealed high levels of the above contaminants. Because moss



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COMPLAINT

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grows on trees and absorbs nutrients and toxins from the air and not from the soil, any

contaminants detected in moss are derived solely from the air and rain.

17.

Research and testing by the Forest Service and DEQ established that the Bullseye

facility is the source of this contamination of arsenic, chromium and cadmium. In October

2015, DEQ tested the air in the vicinity of the Bullseye facility, and measured arsenic at 159

times the state-established levels, and cadmium at 49 times the state-established levels. In

February 2016, DEQ reported that unsafe levels of chromium had also been detected in the

vicinity of the Bullseye facility. Attached hereto as Exhibits B and C are tables summarizing

the exposure concentrations of these contaminants according to DEQ. DEQ has confirmed

in public announcements that Bullseye is the source of the above carcinogenic chemicals

into the air. Plaintiffs attach as Exhibit D, two maps developed by the Portland Oregonian

from this governmental research which identify the scope and source of the contamination

from the Bullseye facility.

18.

Plaintiffs never had knowledge or suspicion that toxic waste from the Bullseye facility

had been contaminating the air adjacent to the Fred Meyer office facility until the February

4, 2016 announcement at Fred Meyer. In fact, Ms. Silva went on daily walks for exercise on

breaks and at lunch time in the area of the Bullseye facility.

19.

Ms. Silvas lung cancer was proximately and directly caused and its growth promoted

by her exposures to the above contaminants from the Bullseye facility.

FIRST CLAIM FOR RELIEF

(Strict Liability for Ultra-Hazardous Activity)

20.



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COMPLAINT

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Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 19 of the

Complaint as though fully set forth.

21.

Bullseye knew or should have known that the dispersal and discharge of the above

contaminants into the air would create and has created actual harm to humans, including

Ms. Silva.

22.

Bullseye knew or should have known that there existed, and still exists, to a scientific

probability, the probability that harm to others would result from the discharge of these

contaminants into the air.

23.

Bullseyes improper use and disposal of these contaminants was and is an ultra-

hazardous activity.

24.

As a direct and proximate result of these negligent acts and omissions, Plaintiffs have

suffered and will suffer non-economic damages of great physical, mental and nervous pain

and suffering, including the cancer suffered by Ms. Silva in an amount which exceeds the

jurisdictional minimum of this Court.

25.

As a direct and proximate result of these negligent acts and omissions, Plaintiffs have

and will suffer economic damages in an amount in excess of the jurisdictional amount of

this Court.

SECOND CLAIM FOR RELIEF

(Negligence)

26.



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COMPLAINT

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Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 19, 21

and 22 of the Complaint as though fully set forth.

27.

Bullseye owed Ms. Silva a duty of care not to expose her to harm from the emissions

from its facility.

28.

Bullseye was negligent in one or more of the following particulars:

i) Emitting cancer causing air pollutants into the air in a

residential and commercial area within a large city in such a

concentration as to be harmful to Plaintiff Valerie Silvas health;

ii) Allowing an unreasonably dangerous condition on its premises

to escape and harm persons such as Plaintiff Valerie Silva;

iii) Hiding from Plaintiffs and the public the fact that it was

poisoning Plaintiff Valerie Silva and others by emitting

hazardous air pollutants to travel into Plaintiff Valerie Silvas

environment;

iv) Failing to warn Plaintiff Valerie Silva that when Bullseyes

emission of hazardious air pollutants came into contact with

Plaintiff Valerie Silva, the pollutants were likely to cause

Plaintiffs to suffer physical and emotional harm;

v) Failing to reduce or eliminate emitting the hazardous air

pollutants identified in paragraphs 9 and 10 to levels deemed

safe for humans;

vi) Exceeding emissions limits placed on it by state or federal

agencies for the identified hazardous air pollutants; and



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COMPLAINT

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vii) Circumventing federal air pollutant standards in violation of 40

CFR 61.19; 40 CFR Part 63, subparts N and SSSSSS, although

Bullseye knew or reasonably should have known that its actions

would result in the emission of known human carcinogens at

unsafe levels.

29.

As a direct and proximate result of this negligence, Plaintiffs have suffered and will

suffer great physical, mental and nervous pain and suffering, including the cancer suffered

by Ms. Silva.

30.

As a direct and proximate result of this negligence, Plaintiffs have and will suffer

additional general and special damages in an amount to be proved at trial.

THIRD CLAIM FOR RELIEF

(Negligence Per Se For Violation of ORS 468A.010 et seq.)

31.


and 26 of the Complaint as though fully set forth.

32.

As actual operators and managers of facilities causing contamination at the Bullseye

facility, Bullseye violated the provisions of ORS 468A.010 et seq., which provides that no

person may discharge or emit a noxious contaminant into the air in any manner which will

result in contamination, pollution or a nuisance. The statutes (or their predecessors) have

been operative since before Bullseye opened its facility.

33.



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COMPLAINT

FOR

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Bullseyes violation of ORS 468A.010 et seq., and the regulations adopted by DEQ

under its authority, proximately caused the Plaintiffs harms.

34.

These air quality statutes and regulations were intended to prevent this type of injury

to people, and Plaintiffs are members of the class of persons for whose protection these

environmental protection statutes were adopted. Plaintiffs have suffered individual harm

separate and apart from the public at large.

FOURTH CLAIM FOR RELIEF

(Loss of Consortium)

35.


and 26 of the Complaint.

36.

At all material times herein Plaintiffs were married and continue to be married.

37.

As a result of the wrongful and negligent acts of Bullseye, the Plaintiffs were caused

to suffer, and will continue to suffer in the future, loss of consortium, loss of society,

affection, assistance, and conjugal fellowship, all to the detriment of their marital

relationship.

FIFTH CLAIM FOR RELIEF

(Battery as to Plaintiff Valerie Silva Only)

38.

Plaintiff, Valerie Silva, realleges and incorporates herein by reference paragraphs 1

through 19, 24 and 28 of the Complaint.

39.



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COMPLAINT

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Bullseye caused non-consensual, harmful or offensive contact with Plaintiff Valerie

Silva by virtue of its conduct as alleged above.

40.

Bullseyes actions directly or indirectly caused a non-consensual, harmful or offensive

contact with Plaintiff Valerie Silva.

41.

Bullseyes conduct of knowingly emitting noxious contaminants in the location

proximate to Plaintiff Valerie Silvas workplace and where Bullseye knew persons such as

Plaintiff Valerie Silva would inhale or otherwise come into contact with said contaminants,

was careless, willful, wanton and violated Plaintiff Valerie Silvas right to be free from

Bullseyes misconduct, justifying an award of punitive damages.

42.

Plaintiffs reserve the right to add a request for punitive damages upon request to this

Court after discovery is completed.

DEMAND FOR JURY TRIAL

43.

Plaintiffs demand a jury for trial of all of their claims.

REQUEST FOR RELIEF

Plaintiffs request the following relief:

1. For an award of actual and punitive damages on their claims.

2. For prejudgment interest.

3. For costs and attorneys fees.

4. For such other and further relief as the Court deems fair and equitable.



11/23

COMPLAINT

FOR

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DATEDthis 14th day of June, 2016.

T H E S U L L I V A N LA W F I R M

By:Kevin P. Sullivan, OSB #: 162383



12/23

EXHIBIT A

Case 3:16-cv-01078-PK Document 1-1 Filed 06/14/16 Page 1 of 10


13/23

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 10

1200 Sixth Avenue Suite 900

Seattle WA 98101-3140

JUL LulO AiR WASTE AND TOXICS

Mr Eric Durrin

Controller

Bullseye Glass Company

3722 Southeast 21 Avenue

Portland Oregon 97202

Re Applicability of 40 CFR Part 61 Subpart to Manufacture of Glass in Periodic Furnaces

Dear Mr Durrin

This letter is inresponse to request

submitted via e-mail dated April 2009 for an

applicability determination of whether or not 40 CFR61 National Emission Standards forInorganic Arsenic Emissions from Glass Manufacturing Subpart applies to the Bullseye

Glass Companys Bullseye Glass manufacture of colored art glass This facility is located in

Portland Oregon EPA has determined that Subpart applies to the Bullseye Glass Companys

manufacture of colored art glass in pot furnaces as described below

Bullseye Glass manufactures colored art glass In your request you stated that you use

variety of furnaces to melt glass which you refer to as pot or tank furnaces You state theyare small furnaces that have raw materials charged into them and after cooking you ladle glass

Out of them Your reported usage of arsenic trioxide is less than 2.5 tons/yr

Applicability to Subpart is stated at 40 CFR 61.160a The source to which this

subpart applies too is each glass melting furnace that uses commercial arsenic as raw material

This subpart do_ot apply to pot furnaces Emphasis added Pot furnaces are defined in

Subpart as glass melting furnace that contains one or more refractory vessels in which glass

is melted by indirect heating The openings of the vessels are in the outside wall of the furnace

and are covered with refractory stoppers during melting The term pot furnaces is further

elaborated on in the preamble to the proposed rule in the Federal Register dated July 20 1983

48FR33 153 Because the glass is sealed off from the furnace atmosphere no material from the

glass melt can escape from the furnace with the furnace exhaust Therefore pot furnaces as

described here would emit no arsenic emissions

Bullseye Glass provided further information including photographs and diagrams to EPA

by e-mail dated July 2010 It is apparent from the photos diagrams and descriptions provided

by Bullseye Glass tha t the vessels used for melting glass are not sealed off from the furnace

atmosphere It is possible for material from the glass melt to escape from the furnace with the

furnace exhaust It is EPAs conclusion t ha t t he furnaces used by Bullseye Glas at the Portland

facility do not meet the definition of Pot Furnaces as that term is defined for the purposes of

Pr/nt on R9cy0194



14/23

40 CFR Part 61 Subpart Based on the use of commercial arsenic as raw material in glass

melting furnace Bullseye Glass is subject to 40 CFR Part 61 Subpart

If

you have any further

questions or concerns please contact Heather Valdez of the

Region 10 Office of Air Waste and Toxics at 206 553-6220

Sincerely

Nancy Helm Manager

Federal and Delegated Air Programs Unit

cc Kathy Amidon

AirPermits and Compliance

ODEQ

Printed on Recycled Paper



15/23

EXHIBIT B



16/23

Exposure oncentrations

i Table 1: Air qual ity data in the air near Powell and SE 22nd Avenue in Portland - Source DEQ

I Chromium Cobalt jArsenic

I

elenium Cadmium Lead I ickel Manganese

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f 5 - ~ ~ ~ o ~ ~ t e

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10/10/2015 24.9 0.3 I 20.3 3 195.4 5.4 I 2.3 4 I 0.007 I

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----- ---------

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10/15/2015

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10/17/2015

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10/18/2015 20.1 0.4 6.7 8

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4.4 7.6 7.4 8

6.5

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10/20/2015

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10/21/2015

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10/23/2015

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21.4 0.3

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0/29/2015 37.7 2.8 93.2

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Average 71 .5 0.9 1

31

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44.3 29.4 I 42.9 1 5.

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valerie silva v bullseye lawsuit

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