La Mesa Toxic Gas Manufacturer Loses Court Ruling
Clearing the way for a possible shutdown of Phoenix Research Corp., a San Diego Superior Court judge Wednesday ruled that the manufacturer of deadly gases is subject to the jurisdiction of local air-pollution officials who have denied the La Mesa plant a permit to operate.
Judge Robert C. Thaxton Jr. said “the court of common sense” forced him to reject claims by Phoenix attorneys that the firm should be exempt from Air Pollution Control District (APCD) authority because deadly arsine and phosphine gases have never been released--either as regular emissions or by accident--from the Alvarado Road facility.
“If there is a dangerous condition, a potentially dangerous condition that can cause harm, it just is not reasonable to require the condition to occur before regulation can take place,” said Thaxton in his verbal ruling.
But Thaxton left in place a preliminary injunction that allows Phoenix to continue operating without environmental controls at least until a March 2, when he will hear arguments on whether to refer the fate of Phoenix back to the APCD for another round of time-consuming administrative hearings.
Thaxton’s decision was applauded by environmental and La Mesa community activists, who have regrouped in recent months to bring pressure on Phoenix to leave its location near Grossmont Hospital, the Grossmont shopping mall and many residences. Union Carbide, Phoenix’s parent company, has announced that it will move the beleaguered operation to Kingman, Ariz. by Dec. 31.
Ironic Timing
“It’s a victory for the community,” Diane Takvorian, director of the Environmental Health Coalition, said about Thaxton’s decision.
“We’re disappointed that the judge has continued the injunction. If the injunction were eliminated today, they (Phoenix) would have to stop operating until they get a permit.”
Robert Brock, a former San Diego fire inspector and one of about 30 community residents who filled the courtroom, said it was ironic that the ruling came on the day that newspapers reported a $470-million court settlement by Union Carbide for a 1984 pesticide leak that killed 3,330 people.
“I guarantee you that we wouldn’t accept $470 million in La Mesa if lives were lost,” said Brock, adding that his home is about a mile from the Phoenix plant. “There’s no way in hell.”
Wednesday’s ruling by Thaxton helps thaw a longstanding legal freeze that began when Phoenix filed suit in January, 1987, to stop air-pollution officials from taking steps to close down the plant for manufacturing arsine and phosphine gases without an APCD permit.
The plant had been operating in relative obscurity since 1973, producing the gases in a nondescript building at 8075 Alvarado Road. Public protests erupted in 1985 after The Times wrote about the plant and the nature of arsine and phosphine, considered among the most deadly substances known.
Federal limits for the gases, which are used to alter the electrical characteristics of silicon and similar materials, are very minimal--0.3 parts per million for phosphine and 0.05 p.p.m. for arsine. A whiff of 500 p.p.m. of arsine would cause instant death because it would freeze the hemoglobin in the red blood cells.
In Nov. 1985, APCD officials ordered Phoenix to apply for a permit to manufacture the deadly gases. After more than a year of study, the APCD denied the permit in Dec. 1986, saying Phoenix posed an unacceptable health risk in the event of an accident.
A month later, in Jan. 1987, Phoenix went to court and obtained an injunction preventing the air pollution agency from closing the plant before the case could be appealed to the APCD hearing board. After several months of hearings, the hearing board was unable to scratch together a three-vote majority to decide anything--a circumstance that apparently left Phoenix without a permit and vulnerable to closure.
The company went back into court and challenged the APCD’s authority, a question that was finally answered Wednesday by Thaxton, who complained that the case has “dragged on too long.”
‘Back to the Board’
Although Thaxton sided with the APCD on the question of its authority, he tentatively went against the agency in his decision on what to do next. County Counsel Barbara Baird argued that, since the APCD hearing board could not reach a decision on the appeal, the agency’s original decision to deny Phoenix’s permit should stand.
Thaxton, however, sided with Phoenix attorney Betty-Jane Kirwan in saying he wanted to send the case back to the APCD hearing board for reconsideration. At Baird’s request, he set a March 2 hearing to hear arguments on the issue.
“I want to get it back to the board,” he said. “That’s where I think it should go. We don’t have a decision. We don’t have findings.”
Such a move, Baird said after the hearing, could take months and render Phoenix’s non-compliance a moot point, since the firm is committed to leaving La Mesa by the end of the year.
“We are concerned that it may never come to resolution because of their delaying,” said Baird.
Brock added: “They want to tie up the courts until December, 1989, when they move. We’re still sitting on pins and needles hoping a Miramar jet doesn’t crash into them.”
Kirwan declined to comment after the hearing, but agreed that Thaxton’s determination about the APCD’s authority was a legal defeat for the chemical company.
Jim Secor, director of communication for Union Carbide’s Linde Division, said Wednesday that progress in the planned move by Phoenix is going slowly. He said contractors have been hired to construct the firm’s new plant on a 36-acre parcel in a Kingman industrial park, but work hasn’t started yet because the chemical company is still waiting for its final building permit.
Meanwhile, Secor said, the company has met with some opposition from Kingman residents, who are circulating petitions against the plant. To allay fears, he said, the company has flown about 25 Kingman public officials and citizens to inspect the La Mesa plant during the last month.
