Toxic-Gas Maker Sues Pollution Control Agency

Phoenix Research Corp., the La Mesa toxic-gas manufacturer facing a shutdown by county air pollution officials, has filed suit against the Air Pollution Control District challenging its legal right to regulate the firm’s operations.

Superior Court Judge Patricia Benke on Monday granted Phoenix’s request for a temporary restraining order against the agency. The order bars the agency from closing the controversial plant for operating without a permit.

The order means that Phoenix may continue to operate at least until Jan. 22, when both sides return to court for a full hearing on the matter. At that time, the company will ask for a permanent injunction against the air-pollution agency.

Phoenix produces arsine and phosphine gas, two extraordinarily toxic gases used in the semiconductor industry. Exposure to as little as 500 parts per million of arsine is almost instantly lethal, destroying red blood cells by freeing the hemoglobin.

The company, owned by Union Carbide Corp., has operated for 13 years out of a small warehouse on Alvarado Road. Many public officials were unaware of its existence until late 1985, when publicity brought it to the attention of the public and to agencies such as the Air Pollution Control District.

The district told Phoenix that it would have to apply for a permit because of the risk of accidental toxic emissions. Last month, the agency denied Phoenix’s application, saying the facility poses an unacceptable health risk in the event of an accident.

On Monday, Phoenix filed suit against the agency, contending it had no right to regulate the firm “because the facility does not emit measurable amounts of air contaminants during the manufacturing process.” It also noted that there are no air pollution standards for arsine or phosphine gas.

The firm’s attorney, Betty-Jane Kirwan, argued before Benke that a shutdown would harm Phoenix and its clients. Its president submitted a statement that the firm would lose its clients permanently if it were shut down for even a few days.

Benke agreed to grant a temporary restraining order against the district pending a more extensive court hearing. Both sides are to return to court Jan. 22 to argue whether the court should grant a permanent injunction barring the agency from regulating Phoenix.

“The statute, I think, is clear in that it authorizes the district to establish a permit system for any equipment which may cause the issuance of air contaminants,” Barbara Baird, the deputy county counsel who represented the agency, said in an interview Tuesday. “There’s nothing in there that says you have to issue them every day.”

Kirwan countered that the district’s bailiwick is smog and air pollution, not accidental toxic releases. She contended that other agencies, such as the state Department of Health Services, already regulate Phoenix to ensure safety should there be a toxic spill.

Also on Monday, Phoenix filed an appeal of the permit denial with the district’s hearing board. If the hearing board upholds the denial, Phoenix may appeal that decision by filing suit in Superior Court. No date has been set for the appeal.

Phoenix moved to La Mesa in 1973 and has operated without serious accident since then. Although there have been small mishaps within the plant, company officials say there has never been an accidental release of either gas.

In January, 1985, in response to public pressure for the plant to move, La Mesa Mayor Fred Nagel asked Union Carbide to relocate its operation. Union Carbide officials quickly agreed to move before the plant’s lease expires on Jan. 1, 1991.

In June, plant officials announced they had found a site in Washougal, Wash., and had hoped to move in by next summer. But the planning and environmental approvals process in Washington has taken longer than anticipated, company officials said, and it may be two years before the move can be made.