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8/8/2016 2:56:56 PM

16CV25390

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF WASCO

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)
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CARMEN KONTOUR-GONQUIST; and
JANINE CONNORS; on behalf of themselves )
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and all others similarly situated,
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Plaintiffs,
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v.
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AMERITIES WEST, LLC,
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Defendant.
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Civil Action No.:


CLASS ACTION ALLEGATION
COMPLAINT
(Nuisance, Trespass, Negligence & Gross
Negligence)
(Amount of Prayer: $20,000,000)
CLAIM NOT SUBJECT TO
MANDATORY ARBITRATION
(Pursuant to UTCR 13.060)
Jury Trial Requested
Filing Fee Under Or Laws 2012, ch. 48, sec.
2; ORS 21.160(1)(d): $1,056

Plaintiffs allege:

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CLASS ACTION ALLEGATION COMPLAINT

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INTRODUCTION

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1.

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Defendant operates a wood preserving treatment facility in The Dalles, Oregon

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(facility). Through its wood preserving process, Defendant releases noxious odors that

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PAGE 1 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

invade Plaintiffs properties, causing damages through, nuisance, trespass, negligence and

gross negligence.
2.

As residents of The Dalles, Oregon community, Plaintiffs do not want to close the

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facility or stop Defendants business. Rather, Plaintiffs seek to stop Defendants current

practices that result in the release of noxious odors and to accomplish a change in

Defendants practices to ensure Plaintiffs properties are not unreasonably exposed to these

noxious odors. Accordingly, Plaintiffs seek an Order holding that entrance of the

aforementioned noxious odors upon Plaintiffs properties constitutes a nuisance. Plaintiffs

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further seek compensatory damages caused as a result of the noxious odors and other relief

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permitted by law.

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PARTIES

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3.

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At all times relevant hereto, Plaintiff Carmen Kontour-Gonquist has resided at 2307
E. 10th St., in the City of The Dalles, County of Wasco, State of Oregon.

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4.

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At all times relevant hereto, Plaintiff Janine Connors has resided at 3000 Old Dulfur
Rd., in the City of The Dalles, County of Wasco, State of Oregon.

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5.

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Defendant, AmeriTies West, LLC is a Delaware Limited Liability Company

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operating a wood preserving facility located at 100 Tie Plant Road, in the City of The Dalles,

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County of Wasco, State of Oregon.

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//

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//

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PAGE 2 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

JURISDICTION AND VENUE

6.
This Court has jurisdiction pursuant to Oregon Revised Statutes (ORS) Chapter 14,

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Section 14.030.
7.

Plaintiffs damages exceed the jurisdictional minimum of this Court.

8.

Venue is proper in Wasco County Circuit Court because Defendant has sustained,

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continuous business activity in Wasco County, has an office for the transaction of business in

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Wasco County, and a substantial part of the events giving rise to the claims at issue in this

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Complaint occurred in Wasco County. Plaintiffs reside and suffered damages in Wasco

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County.

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GENERAL ALLEGATIONS

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9.

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Plaintiffs properties have been, and continue to be, physically invaded by noxious
odors.

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10.

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The noxious odors which entered Plaintiffs properties originated from Defendants

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facility located at 100 Tie Plant Road, in the City of The Dalles, County of Wasco, State of

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Oregon.

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11.

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Defendant operates a wood preserving facility which includes two boilers, three

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cyclones and five retorts (wood treating cylinders).

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//

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PAGE 3 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

12.

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The Defendants facility treats wood cross ties for the railroad industry using, among
other things, creosote or creosote solutions.
13.

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Creosotes are a category of carbonaceous chemicals and have the ability to emit very
strong odors.
14.

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Defendants facility preserves wood by placing it in retorts. These are large sealed
tanks in which rail cars loaded with cross ties are chemically treated with creosotes. The cars

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are parked on a drip pad area until the chemicals stop dripping. The freshly treated ties are

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then dried and stored outside.

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15.
Defendants facility, and specifically its emissions, has been the subject of frequent

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complaints from residents in the adjacent residential area. As a result, more than 100

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households have contacted Plaintiffs counsel documenting the odors they attribute to the

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Defendants facility.

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Defendant has a well-documented history of failing to control its odorous emissions,
including, but not limited to the following:
a.

Between 2009 and February 28, 2014, the Oregon Department of

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Environmental Quality (OR DEQ) received 130 complaints regarding the

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emission of naphthalene odors by the Defendants plant.

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b.

In 2014 alone, the OR DEQ received 51 complaints attributed to the odors


emitted by Defendants plant.

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PAGE 4 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

c.

A number of complaints were made to the OR DEQ in relation to the plants


odors during July 2014.

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A sampling of DEQ complainants reported:

a.

The Amerities facility is spewing the awful odor again, this morning, longer

than usual. The smell is inside my house now, since I had my windows open

to cool the place down in this heat;

b.

nausea and headaches; and

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Rail road tie plant in The Dalles. Consistent emission of foul odors causing

c.

We have lived in The Dalles, OR and Dallesport, WA for the last 33 years.

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The odor from the creosote plant has continually been very nauseating and

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unpleasant over the years . . . . There are days that we cant open our

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windows, or go outside to do yard work due to the smell Please do

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something to stop the smell.

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18.

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Citizens continue to voice complaints about the noxious odors emanating from

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Defendants facility and its intrusion upon their properties.

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On April 8, 2016, the OR DEQ and Defendant entered into a Mutual Agreement and

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Final Order (MAFO) to implement multiple odor control measures at the facility. The

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MAFO specifically found:

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a.

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Creosote is used as a wood preservative in the process and has the ability to
emit strong odors.

b.

Residents of The Dalles, or those in close proximity, have periodically

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PAGE 5 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

complained to DEQ that strong odors emanate from the Facility. On February

1, 2015, the Department of Environmental Quality (DEQ)s Nuisance Strategy

was triggered due to the number and description of the odor complaints DEQ

received concerning the Facility. As a result, DEQ staff have been conducting

odor surveys in The Dalles area and have documented that creosote-type

odors are often present in the community.


20.

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The invasion of Plaintiffs properties by noxious odors has interfered with Plaintiffs
use and enjoyment of their properties, resulting in damages in excess of $25,000.

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21.
Defendant intentionally, recklessly, willfully, wantonly, maliciously, grossly and

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negligently failed to properly construct, maintain and/or operate its facility, and caused the

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invasion of Plaintiffs properties by noxious odors on intermittent and reoccurring dates.

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22.

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Defendant failed to install, maintain, and/or operate adequate technology, to properly

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control emissions of noxious odors onto Plaintiffs properties. Such failures include, but are

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not limited to:

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a.

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Inadequate monitoring of discharged exhaust gases containing air


contaminants;

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b.

Inadequate monitoring and/or evaluation of potential sources of odors;

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c.

Inadequate implementation of measures to reduce odors;

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d.

Inadequate use of alternate treatments;

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e.

Inadequate design, maintenance and/or operation of the retorts;

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f.

Inadequate design of air handling and oil scrubber systems for the retort door

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PAGE 6 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

area and rail tank unloading;

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g.

preservative solution; and

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Inadequate use, maintenance, and/or operation of Defendants Hot-treat

h.

Inadequate use, maintenance and/or operation of Defendants Tank car


procedures.

CLASS ACTION ALLEGATIONS

Definition of the Class

23.

Plaintiffs bring this action individually and on behalf of all persons as the Court may

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determine to be appropriate for class certification, pursuant to Oregon Rules of Civil

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Procedure (ORCP 32). Plaintiffs seek to represent a Class of persons preliminarily defined

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as: All owner/occupants and renters of residential property residing within one and one-half

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(1.5) miles of the facilitys property boundary.

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24.
The definitional boundary articulated in paragraph 23 is subject to modification as

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discovery will disclose the location of all class members. Plaintiffs reserve the right to propose

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one or more sub-classes if discovery reveals that such subclasses are appropriate.

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Numerosity

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The Class consists of hundreds if not thousands of members and therefore is so numerous
that joinder is impracticable.

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Commonality

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26.

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Numerous common questions of law and fact predominate over any individual questions

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PAGE 7 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

affecting Class members, including, but not limited to the following:

a.

whether and how Defendant intentionally, recklessly, willfully, wantonly,

maliciously, grossly and negligently failed to construct, maintain and operate the

facility;

b.

whether Defendant owed any duties to Plaintiffs;

c.

which duties Defendant owed to Plaintiffs;

d.

which steps Defendant has and has not taken in order to control the release of

noxious odors through the construction, maintenance and operation of its facility;

e.

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whether and to what extent the facilitys noxious odors were dispersed over the
class area;

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f.

whether it was reasonably foreseeable that Defendants failure to properly

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construct, maintain and operate the facility would result in an invasion of

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Plaintiffs property interests;

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g.

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whether the degree of harm suffered by Plaintiffs and the class constitutes a
substantial annoyance or interference; and

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h.

the proper measure of damages incurred by Plaintiffs and the Class.

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Typicality

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27.

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Plaintiffs have the same interests in this matter as all the other members of the Class

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and their claims are typical of all members of the Class. If brought and prosecuted

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individually, the claims of each Class member would require proof of many of the same

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material and substantive facts, utilize the same complex evidence including expert testimony,

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rely upon the same legal theories and seek the same type of relief.

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//

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PAGE 8 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

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28.
The claims of Plaintiffs and the other Class members have a common cause and their

damages are of the same type. The claims originate from the same failure of the Defendant to

properly construct, maintain and operate the facility.

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29.
All Class members have suffered injury in fact as a result of the invasion of their
property by Defendants release of noxious odors, causing damage to Plaintiffs properties.

Adequacy of Representation

30.

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Plaintiffs claims are sufficiently aligned with the interests of the absent Class

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members to ensure that the Class claims will be prosecuted with diligence and care by

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Plaintiffs as representatives of the Class. Plaintiffs will fairly and adequately represent the

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interests of the Class and do not have interests adverse to the Class.

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Plaintiffs have retained the services of counsel who are experienced in complex class

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action litigation and in particular class actions stemming from invasions of industrial

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emissions. Plaintiffs counsel will vigorously prosecute this action and will otherwise protect

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and fairly and adequately represent Plaintiffs and all absent Class members.

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ORCP 32 H Pre-Litigation Notice

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32.

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As required by ORCP 32 H, Plaintiffs provided pre-litigation notice to Defendant

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AmeriTies West, LLC (Defendant) by mailing a copy of this complaint and along with a

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letter detailing the particular causes of action against Defendant and demanding that

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Defendant correct or rectify its wrongs. More than 30 days has elapsed since Plaintiffs

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PAGE 9 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

submitted their pre-litigation notice to Defendant in writing via certified mail return receipt

requested to Defendants registered agent for service of process at Corporation Service

Company, 1127 Broadway Street NE, Suite 310, Salem, OR 97301.

COUNT ONE

Nuisance

33.

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Plaintiffs restate the allegations set forth in all previous paragraphs of this Complaint
as if fully rewritten herein.

34.

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The noxious odors, that entered Plaintiffs properties originated from the wood

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preserving facility constructed, owned, maintained and/or operated by Defendant.

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35.
By failing to reasonably construct, operate, repair and/or maintain its facility,

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Defendant has negligently created an unreasonable risk of harm by causing the invasion of

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noxious odors onto Plaintiffs properties. Such failures include, but are not limited to:

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a.

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Inadequate monitoring of discharged exhaust gases containing air


contaminants;

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b.

Inadequate monitoring and/or evaluation of potential sources of odors;

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c.

Inadequate implementation of measures to reduce odors;

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d.

Inadequate use of alternate treatments;

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e.

Inadequate design, maintenance and/or operation of the retorts;

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f.

Inadequate design of air handling and oil scrubber systems for the retort door

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area and rail tank unloading;


g.

Inadequate use, maintenance, and/or operation of Defendants Hot-treat

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PAGE 10 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

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preservative solution; and


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Inadequate use, maintenance and/or operation of Defendants Tank car


procedures.

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36.
As a direct and proximate result of the foregoing conduct of Defendant, Plaintiffs
suffered damages to their properties as alleged herein.

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37.
Plaintiffs did not consent to noxious odors to enter upon their properties.

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38.
By causing noxious odors by Defendant to physically invade Plaintiffs properties,

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Defendant maliciously, recklessly, willfully, wantonly, grossly and with a conscious

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disregard for the rights and safety of Plaintiffs created a nuisance which substantially and

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unreasonably interfered with Plaintiffs' use and enjoyment of their properties. Such

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substantial and unreasonable interference includes, but is not limited to:

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a.

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loss of use and ability to enjoy the outside areas of Plaintiffs properties due to
the presence of noxious odors;

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b.

diminution in the value of Plaintiffs properties; and

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c.

annoyance, and inconvenience, including but not limited to, being woken up

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in the middle of the night by noxious odors, the discomfort of enduring

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noxious odors, and the inability to invite guests to Plaintiffs residences due to

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the embarrassment and annoyance of the noxious odors invade Plaintiffs

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properties.

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39.

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Defendants substantial and unreasonable interference with Plaintiffs' use and

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PAGE 11 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
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209 SW Oak Street, Suite 400
Portland, OR 97204

enjoyment of their properties constitutes a nuisance for which Defendant is liable to Plaintiffs

for all damages arising from such nuisance, including compensatory relief.

COUNT TWO

Trespass

40.

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Plaintiffs restate the allegations set forth in all previous paragraphs of this Complaint
as if fully rewritten herein.

41.

Defendant intentionally, willfully, wantonly and negligently failed to construct,

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maintain and/or operate its facility, which caused the invasion of Plaintiffs properties by

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noxious odors on intermittent and reoccurring dates. As a direct and proximate result of

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Defendants conduct, noxious odors entered and physically intruded upon Plaintiffs

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properties.

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//

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42.
It was reasonably foreseeable that Defendants failure to properly construct, maintain
and/or operate its facility could result in an invasion of Plaintiffs possessory interests.
43.
As a further direct and proximate result of the foregoing conduct of Defendant,
Plaintiffs suffered substantial and continued damages to their properties as alleged herein.
44.

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The noxious odors, which entered and physically invaded Plaintiffs properties and

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land interfered with Plaintiffs interests in the exclusive possession of said properties and land

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and constituted a trespass upon Plaintiffs properties.

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PAGE 12 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

45.

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Plaintiffs did not consent to noxious odors to physically enter and invade their land and
properties.

46.

Defendants actions, which resulted and continue to result in a trespass upon Plaintiffs

land and properties were, and continue to be, intentional, willful, negligent and made with a

knowing and conscious disregard for the rights and safety of Plaintiffs.

47.

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Plaintiffs are entitled to compensatory relief as a result of Defendants trespass upon


their land and properties.

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COUNT THREE

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Negligence

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Plaintiffs restate the allegations set forth in all previous paragraphs of this Complaint
as if fully rewritten herein.

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On occasions too numerous to mention, Defendant negligently and improperly

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constructed, maintained and/or operated its facility in that the facility caused noxious odors

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to enter Plaintiffs properties.

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As a direct and proximate result of Defendants negligence in constructing,

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maintaining and/or operating the facility, Plaintiffs properties, on occasions too numerous to

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mention, were physically invaded by noxious odors.

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//

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PAGE 13 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

51.

As a further direct and proximate result of the foregoing conduct of Defendant,

Plaintiffs suffered physical damages to their properties as alleged herein. Such physical

damage includes, but is not limited to diminution in the value of Plaintiffs properties.

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52.
By failing to properly construct, maintain and/or operate its facility, Defendant failed

to exercise its duty of ordinary care and diligence so that noxious odors would not invade

Plaintiffs properties.

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53.
By failing to properly construct, maintain and/or operate its facility, Defendant has

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caused the invasion of Plaintiffs properties by noxious odors. Such failures, include, but are

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not limited to:

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a.

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Inadequate monitoring of discharged exhaust gases containing air


contaminants;

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b.

Inadequate monitoring and/or evaluation of potential sources of odors;

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c.

Inadequate implementation of measures to reduce odors;

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d.

Inadequate use of alternate treatments;

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e.

Inadequate design, maintenance and/or operation of the retorts;

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f.

Inadequate design of air handling and oil scrubber systems for the retort door

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area and rail tank unloading;


g.

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Inadequate use, maintenance, and/or operation of Defendants Hot-treat


preservative solution; and

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Inadequate use, maintenance and/or operation of Defendants Tank car


procedures.

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PAGE 14 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

i.

Defendant knowingly breached its duty to exercise ordinary care and diligence

when it improperly constructed, maintained and/or operated its facility and

knew, or should have known upon reasonable inspection that such actions

would cause Plaintiffs properties to be invaded by noxious odors.

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54.
As a direct and proximate result of the failure of Defendant to exercise ordinary care,
Plaintiffs residences were physically invaded by noxious odors.

COUNT FOUR

Gross Negligence

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55.

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Plaintiffs restate the allegations set forth in all previous paragraphs of this Complaint
as if fully rewritten herein.

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56.

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Defendants conduct in knowingly allowing conditions to exist, which caused

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noxious odors to physically invade Plaintiffs' properties, constitutes gross negligence as it

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demonstrates a substantial lack of concern for whether an injury resulted to Plaintiffs

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Defendants gross negligence was malicious and made with a conscious disregard for

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the rights and safety of Plaintiffs, which entitles Plaintiffs to an award of compensatory relief.

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JURY DEMAND

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Plaintiffs hereby demand a trial by jury.

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59.
Plaintiff is entitled to recover prejudgment interest pursuant to ORS 82.010(1)(a).

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PAGE 15 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

60.

Plaintiff reserves the right to amend this Complaint to add a claim for punitive

damages as required by ORS 31.725.


PRAYER FOR RELIEF

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WHEREFORE, Plaintiffs, individually and on behalf of the proposed Class, pray for

judgment as follows:

1.

Certification of the proposed Class pursuant to ORCP 32;

2.

Designation of Plaintiffs as representatives of the proposed Class and designation of

their counsel as Class Counsel;

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3.

Judgment in favor of Plaintiffs and the Class members and against Defendant;

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4.

Award Plaintiffs and the Class members compensatory damages, including pre-

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judgment and post-judgment interest thereupon, in an amount not to exceed $20,000,000;

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5.

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property constituted a nuisance;

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6.

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Defendant repair and/or correct the operation of its facility in a manner that is practically

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abatable and economically feasible as determined by Plaintiffs expert, so that odors no longer

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invade Plaintiffs properties;

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7.

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and/or practices that are violative of the rights of Plaintiffs and/or potential class members;

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8.

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//

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//

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//

An Order holding that entrance of the aforementioned noxious odors upon Plaintiffs

Orders for temporary, preliminary and permanent injunctive relief requiring that

An Order holding that Defendant cease and desist from engaging in such methods, acts

Award Plaintiffs and the Class members attorneys fees and costs; and

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PAGE 16 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204

9.

Such further relief as the Court deems just and proper.

DATE this 8th day of August, 2016.

Respectfully submitted,

/s/ Nicholas A. Kahl


Nicholas A. Kahl, OSB#101145
NICK KAHL, LLC
209 SW Oak Street, Suite 400
Portland, Oregon 97204
Tel: 971-634-0829
Fax: 503-227-6840
nick@nickkahl.com

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Trial Attorneys:
Nicholas A. Kahl, OSB #101145
Nick Kahl, LLC
209 SW Oak Street, Suite 400
Portland, OR 97204
Tel: 971-634-0829
Fax: 503-227-6840
nick@nickkahl.com
Steven D. Liddle
Nicholas A. Coulson
Pro Hac Vice Motions to be Submitted
LIDDLE & DUBIN P.C.
975 E. Jefferson Avenue
Detroit, Michigan 48207-3101
Tel: (313) 392-0015
Fax: (313) (313) 392-0025
sliddle@ldclassaction.com
Attorneys for Plaintiffs

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PAGE 17 CLASS ACTION ALLEGATION COMPLAINT

p: 971-634-0829
f: 503-227-6840
209 SW Oak Street, Suite 400
Portland, OR 97204