Agency Given Jurisdiction Over Maker of Deadly Gas

The county Air Pollution Control District has the power to regulate an embattled La Mesa firm that manufactures two potentially lethal gases, a Superior Court judge ruled Thursday.

But Judge Richard Huffman agreed to bar the district from closing down Phoenix Research Corp. until the firm is given the opportunity to appeal the district’s Dec. 31 refusal to issue it a permit to operate.

That appeal is to be heard by the district’s hearing board on Feb. 12. Phoenix contends that the district has no jurisdiction over it because it does not pollute, and that its operations cannot be regulated because no standards govern arsine and phosphine gas.

The air-pollution agency decided Dec. 31 to reject Phoenix’s application for a permit to operate, saying the firm had failed to offer sufficient safeguards against an accidental release of gas and therefore could pose an unacceptable public health risk.

The company responded by filing suit against the agency, challenging its jurisdiction over Phoenix. On Jan. 12, Superior Court Judge Patricia Benke granted Phoenix’s request for a temporary restraining order against the agency until the case could be heard.

On Thursday, Huffman concluded that the agency has jurisdiction over Phoenix “in that this is a business with equipment that may produce emissions that pose a risk to air quality. I’m satisfied they have the power to regulate.”

But he added that the case is unusual in that Phoenix operated apparently without incident for 12 years until the agency told it to apply for a permit. If the agency were allowed to shut it down before the appeal, that could cause irreparable harm to the firm, Huffman said.

Huffman enjoined the Air Pollution Control District from taking enforcement action against Phoenix until the Feb. 12 appeal hearing has taken place and the district’s hearing board has issued a written decision on whether or not to uphold the permit denial.

Arguing the matter before Huffman, Phoenix’s lawyer, Betty-Jane Kirwan, pointed out that Phoenix has operated for 13 years at the same Alvarado Road location. She contended that the firm has no emissions and “there has never been a complaint . . . about emissions.”

For that reason, Kirwan said, the agency has no jurisdiction since its job is to regulate facilities that pollute. “The district says the company is a nuisance,” she argued. “I’ve never heard of an anticipatory nuisance.”

“To me, what they’re trying to do is zone this company out of existence,” said Kirwan, who contends the company would collapse if it were closed for more than two days. “That’s a matter for the City of La Mesa.”

Barbara Baird, an assistant county counsel representing the agency, argued that Phoenix should be appealing the permit denial, not attempting to “circumvent” the process in court. She challenged the company’s claim that a temporary shutdown would force it out of business.

However, when asked by Huffman why it took the county 12 years to “find” the company, Baird said simply that it had been unaware of its operations.

Phoenix, which is owned by Union Carbide Corp., 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.

Arsine and phosphine are unusually toxic gases widely 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.

In January, 1986, in response to publicity and resulting public pressure for the plant to move, La Mesa Mayor Fred Nagel asked Union Carbide to relocate its operation. Union Carbide officials agreed to move before the plant’s lease expires on Jan. 1, 1991.

The planned move, however, has been delayed by a lengthy environmental review in the state of Washington, where Union Carbide officials say they have found a new site.