A class action lawsuit against AmeriTies alleging that odors from the plant diminished the use and value of area properties has reached a proposed settlement of $1.25 million.
Almost all of The Dalles is included in the boundaries covered by the settlement, according to a map posted on the website of one of the law firms involved. Between 5,400 to 5,600 households are likely eligible to make claims, according to a motion filed in the suit.
The settlement also includes a requirement that AmeriTies spend $250,000 over the next two years to minimize the impact of airborne emissions. AmeriTies was able to choose how it would do that, and will improve its scrubber system to make it more efficient and mitigate odor emissions.
The proposed settlement allows up to $500,000 for the plaintiff’s attorneys, and up to $5,000 for the woman who brought the suit, Janine Connors. The cost of administering the settlement would also come out of the $1.25 million.
If the attorneys are given $500,000 and Connors $5,000 – which is up to a judge to decide -- that leaves $745,000 to be equally distributed among the qualifying members of the class. If the estimated maximum amount of households, 5,600, sought payment, that would be $133 per household. At 5,400, it would be $138 per household. However, those figures do not take into account settlement administration costs, which are typically around $6,00-$8,000 for a settlement of this size, said Nick Coulson, with Liddle & Dubin, attorneys for the plaintiff.
The 2016 lawsuit against the plant, which sought $20 million, alleged odors from the creosote used to treat railroad ties interfered with the ability to use and enjoy homes within the class area. The lawsuit did not make allegations about impacts to health.
The settlement does not release AmeriTies from any claims for a diagnosed medical harm, and does not release claims arising from emissions occurring after the date of the settlement.
Anyone who owned or rented a home within the class area anytime after Aug. 8, 2010 may be entitled to a part of the settlement.
The notice of pending settlement said AmeriTies “has vigorously denied and continues to deny all claims of wrongdoing or liability,” and maintains that “odor emissions are part of the ordinary operation of a tie plant, that any odor emissions from the plant are not a nuisance under the law, and that there are several other causes of odors in the surrounding area.”
A settlement fairness hearing is set for Aug. 28 at 1:15 p.m. at Wasco County Circuit Court, before Judge John Wolf. The court will consider whether the proposed settlement is fair and may also hear objections and listen to people who have asked to speak at the hearing.
The court will then decide whether to approve the settlement, and how much the attorneys for the plaintiff and the plaintiff herself will be paid from the settlement fund.
Those who want to participate in the settlement must file a claim form by Sept. 22. Those who wish to opt out must do so no later than Aug. 23.
Accepting the settlement means releasing all claims against AmeriTies, and several people who have been longtime critics of the plant, citing health issues, have said they will not join the settlement.
Tiffany Woodside called the proposed settlement “insulting to those that suffer on a daily basis.”
Woodside has a large yard, but doesn’t go outside because the naphthalene makes her sick.
She said the small individual payout wouldn’t even pay for an air filter. She said AmeriTies continues to find excuses, including lack of funds, for not implementing protective measures.
In Florida, she said, the EPA paid to relocate people living near a tie plant, while another town split a $5 billion payout from a lawsuit.
She said it was time for a “proper health assessment” of soil, dust and water.
She said a meeting of those interested in opting out is set for 6:30 p.m. on Tuesday, Aug. 7 at Sorosis Park.
AmeriTies has the right to terminate the settlement agreement if more than 50 people opt out of the settlement.
The settlement terms state it cannot be construed as an admission of liability or wrongdoing, or that anyone has suffered damages.
The proposed settlement said the plaintiff’s counsel took into account “the sharply contested issues involved, the unsettled state of the applicable law” as well as costs of further prosecution of the lawsuit in saying a resolution and compromise was fair.
Portions of a deposition with Jeff Thompson, the plant manager of AmeriTies, were included in court papers for the lawsuit. In it, he said that the plant estimated it would cost about $9 million to build 12 buildings to hold treated ties in to contain off-gassing.
The plaintiff’s attorney who questioned Thompson also gleaned that of three options available to it to remedy odor complaints, AmeriTies chose the one option that didn’t require public involvement. The Oregon Department of Environmental Quality had encouraged AmeriTies to include the public in the process.
In late 2016, the plant made several modifications to its operations to reduce emissions of naphthalene, the component in creosote which causes odors.
Chiefly, it cut the amount of creosote in its treatment formula in half. It also began stacking drying treated ties tightly together, and it began leaving the doors open on its treatment retorts as briefly as possible.
Air quality testing done by the DEQ in 2017 showed levels of naphthalene were almost half of what they used to be.
Under a proposed new looser standard in Oregon for what constitutes lifetime cancer risk from exposure to naphthalene, none of the average naphthalene levels in The Dalles would reach the level of being a cancer risk.
The proposed looser standard would change the benchmark from a one in a million risk of getting cancer to a 50 in a million risk of getting cancer.
A federal agency earlier this year concluded pollutants from AmeriTies did not pose chronic public health risks to people in the area, but strong odors could still trigger physical symptoms.
This story has been updated