A Superior Court judge issued a compromise ruling Thursday that allows the Phoenix Research Corp. to continue producing a lethal toxic gas at its La Mesa plant until the county Air Pollution Control District hearing board decides otherwise.
The ruling angered some La Mesa citizens who have fought since 1986 to have the plant shut and who fear that the continued legal wrangling will permit Phoenix to continue making highly poisonous arsine and phosphine gases until Dec. 31, the date by which the Union Carbide subsidiary has promised to be out of town. Phoenix officials signed an agreement with La Mesa in December in which the city promised not to employ a little-used zoning law to force the closure of the plant, at 8075 Alvarado Road, as long as Phoenix ceased operation by the end of 1989.
But now it appears that even the beleaguered company's planned relocation to the city of Kingman in Mojave County, Ariz., may not pan out. A recently formed citizens' group in the rural northeastern corner of the state is fighting furiously to prevent Union Carbide from locating its gas-manufacturing plant in Mojave County, and a second group is gathering signatures for the recall of Kingman's mayor and vice mayor, who have supported the location of the plant in their city of 12,400.
Proposal to Relocate Plant
Bowing to community pressure there, Union Carbide officials went before the Mojave County Board of Supervisors on Wednesday night to propose relocating the plant from a 36-acre parcel they have already purchased at a Kingman industrial park. According to Kingman Mayor Carol Anderson, company officials proposed a move to a new site just outside the city limits, and therefore outside the city's jurisdiction.
But, in the opinion of Kingman resident Frank McVey, a retired educator and head of the newly formed Citizens Against Toxic Substances, anywhere within Mojave County would be too close for comfort for the manufacture of poisonous gases.
La Mesa Mayor Fred Nagel said Thursday that in the event Phoenix's plans to move to Kingman fall through, the Alvarado Road plant will still be shut by the end of the year. "If they do not cease operation Dec. 31, they will be in contempt of court and the owners will be subject to being fined and being jailed," Nagel said. "There is no way it can be extended and no way it can be appealed. It is final."
Controversy Erupted in '86
The controversy erupted in La Mesa in early 1986. The city began its efforts to force the company to move that year, shortly after a November, 1985, article in The Times made public the plant's operations. Phoenix originally acquiesced, and company officials agreed that their plant did not properly belong in a densely populated area, surrounded by hospitals, schools and residences.
But Union Carbide later encountered difficulty finding a hospitable place to relocate the plant, and public opposition in La Mesa continued to rise.
The County Air Pollution Control District became involved in November, 1985, when it was decided that Phoenix, which had been quietly producing the poisonous gases at that location since 1973, would need a permit to operate. One year later it declined to issue a permit.
Phoenix appealed the permit denial through a lengthy eight-month series of hearings in 1987, but the three members then sitting on the air-pollution district's hearing board were unable to reach a unanimous conclusion. Two seats on the board were vacant at the time, since the County Board of Supervisors had not appointed replacements for two members whose terms had expired.
That year the company also obtained a restraining order preventing the county from shutting Phoenix down until a final decision was reached.
Review of Transcripts
Superior Court Judge Robert C. Thaxton ruled Thursday that the matter will be remanded to the hearing board once more for a definitive decision on whether the permit was properly denied. The board will be asked to render a decision based only on a review of the transcripts of the 1987 hearings, and will not receive any new testimony and evidence unless they ask for it.
Phoenix attorney Betty-Jane Kirwan said afterward that she was unhappy with the judge's ruling. Kirwan had asked to begin the hearing process anew, citing the year and a half that had passed since the last hearings. The two new board members will be facing a highly complex and technical matter, she said, and will be at a disadvantage if they cannot question witnesses in person.
But Thaxton rejected her request, saying: "You did have an opportunity to present all of your evidence at the first hearing. You've cited nothing to me that's new that happened in the last year and a half."
Kirwan said she did not know if Phoenix will appeal the judge's ruling.
County counsel Barbara Baird, representing the air-pollution district, was also displeased with the order. Baird said she was hoping the judge would simply affirm the county's position that the permit had been denied and the plant would have to close.
Baird was pleased, however, with the fact that the hearing board will not have to start from scratch. Baird said she believed a decision will be reached quickly, because one issue that kept the members from agreeing the first time had recently been resolved.
At the conclusion of the hearings in 1987, the three board members differed over whether the air-pollution district in fact had the authority to regulate the operations of the Phoenix plant, since the plant did not regularly emit any gases. Thaxton ruled last month that the district does have such authority.
Baird said the hearing board will probably not be able to begin until April, and would not speculate as to how long it will take to reach a conclusion.
A handful of opponents to the gas plant who appeared in court said afterward that they were disgruntled by the judge's ruling.
"We are displeased that he didn't deal with the issue of the injunction," said Coalition for Environmental Health spokeswoman Diane Takvorian. "They should stop operating today, until this decision is made."
"If they have an accident here, it's going to kill 10,000 people," said opponent Dee Brock. "It hasn't eased our minds, and we're still living with the threat."
The company moved into an already-existing building in La Mesa in 1973 and was inspected annually by the Fire Department there, but was operating without any local governmental controls.
Arsine and phosphine are gases used to alter the electrical characteristics of silicon and similar materials. Even brief exposure to 500 parts per million of arsine is almost instantly lethal, destroying red blood cells.