AMERITIES SETTLES AIR POLLUTION CASE IN THE DALLES Creosote plant in The Dalles to pay $1.25 million to settle air pollution case

AmeriTies, a railroad tie manufacturer in The Dalles, would pay $1.25 millionplus another $250,000 to minimize toxic emissions if a court approves a proposed settlement of a class action suit filed by property owners. Some residents are rejecting the settlement because it does not pay for health damages.

July 28, 2018

By PAUL KOBERSTEIN

Photo by Sarah Clark

THE DALLES, ORE. -- The AmeriTies creosote plant in The Dalles would pay $1.25 million for property damages stemming from its toxic air pollution under a proposed settlement filed last week in a class action lawsuit in Wasco County Circuit Court.

Although many residents of The Dalles have told Cascadia Times that the plant has been harming their health for many years, the proposed settlement would not pay for any alleged health damages.

The class action case originally sought $20 million. Filed on Aug. 8, 2016, it is formally called Connors v. AmeriTies West LLC. In addition to property damages, under the settlement AmeriTies would pay $250,000 within two years for measures intended “to minimize the impact of air emissions from the plant” and improve its “overall environmental performance.”

The lawsuit accused AmeriTies of interfering with residents’ use of their property “through nuisance, trespass, negligence and gross negligence.”

“Plaintiff’s property has been, and continues to be, physically invaded by noxious odors,” the lawsuit said.

People eligible to receive payments from the settlement include “persons owning and occupying or renting” residential property in The Dalles from Aug. 8, 2010 until the Final Settlement Date, which has not been determined. Up to $500,000 will be paid to the plaintiffs’ lawyers, including Nicholas Kahl, a Portland attorney who declined to comment on the proposed settlement.

The settlement awaits final approval by the court. The lead plaintiff, Janine Connors, would receive $5,000 and the other plaintiffs would divide the rest.

Residents of The Dalles have been asked to sign the proposed settlement by Sept. 22, if they wish to receive any payment. People who want to pursue individual claims against the company must opt out by Aug. 23.

Court documents say that AmeriTies “has vigorously denied and continues to deny all claims of wrongdoing or liability arising out of the allegations.” The company maintains that odor emissions are “part of the ordinary operation” of the creosote plant. It also says that emissions are not a nuisance under the law and that there are several other causes of odors in the surrounding area.

Jeff Thompson, manager of the plant since 2000, said in sworn testimony on Aug. 1, 2017 – just one year ago – that he only “occasionally” smells odors from the plant at his home located about a half-mile away from the plant.

“I live in the community,” he said in a deposition. “I don’t experience what is claimed in the suit.”

In the last four years, he said, he smelled those odors at home “less than six” times.

He also said Amerities never performed air dispersion modelling to show which areas of town were exposed to the plant’s emissions. “Never felt the need,” he said.

But Tiffany Woodside, a plaintiff in the case who lives on a hillside about a mile from the plant, has complained almost daily about the plant’s fumes, according to Oregon Department of Environmental Quality records.

She said the plant’s toxic effluent has contaminated her blood, which is not ususual for people who live in towns with similar wood treatment plants. Blood tests in those towns have detected dioxin, as Cascadia Times reported.

Woodside blames the local medical community in The Dalles for failing to acknowledge poisonings caused by the plant and for ignoring “the health, safety and life of our community. How could they turn a blind eye to the 96-year-old old poison plant sitting in the heart of our town? No medical facility doctor or specialist will even talk about the poison plant sitting in our back yard.”

Rachel Najjar, who lived in The Dalles until 2016, said people should reject the offer.

“This settlement is demeaning to the people of The Dalles,” said Najjar, who along with Woodside is a founder of The Dalles Air Coalition, a local group that advocates for clean air. Najjar now lives in Hood River.

“AmeriTies is well aware that they are destroying people's health and ruining their livelihood, yet they continue to play games and fool everyone into thinking that they are "good neighbors," she said.

Najjar said The Dalles Air Coalition “urges people to oppose this settlement and start doing research on what other towns have received."  In Pensicola, Fla., she said, EPA paid for relocation of people living near the plant.

"This lawsuit settled for much lower than the plaintiff originally asked for and that means residents will be receiving a very low reward for their pain and suffering,” Najjar said.

She pointed out that other towns have received much larger settlements in their lawsuits against the railroad tie industry. As Cascadia Times reported in May, Tronox Inc., paid $600 million in 2014 to settle health claims in a $25 billion lawsuit filed by the US Environmental Protection Agency. Eventually, EPA settled the case for one-fifth that amount. Tronox paid the funds to thousands of people in Pennsylvania, Louisiana and Mississippi who suffered health problems similar to those reported by people in The Dalles.

Tronox is a successor to Kerr-McGee, which operated creosote plants in these and other states, including the plant in The Dalles. It was the largest settlement for the cleanup for environmental contamination in EPA history.

People in The Dalles have never been compensated for their alleged health damages.

Two years ago, residents of Southeast Portland filed a similar air pollution case against Bullseye Glass. The case, filed in Multnomah County Circuit Court, is also alleging property damages. On Dec. 13, 2017, the court granted plaintiffs’ motion to amend their complaint to add claims for punitive damages. The trial is set for October 15, 2018.

Paul Koberstein