Daily Journal (Los Angeles, Calif.)  [Printer-friendly version]
March 24, 2006


Rare Rescinding of Air Permits Causes Firm to Sue Local Board

[Rachel's introduction: An Oregon corporation plans to build a high-
temperature incinerator in northern California to "melt" dangerous
medical waste. If they get a toehold, they plan to expand across the
United States. Have all reasonable alternatives been examined? It
seems not. This is a stellar example of the old, discredited "risk
assessment of a single option" approach to decisions. Will we ever

By Dennis Pfaff, Daily Journal Staff Writer

Red Bluff, Calif. -- Just beyond a grove of walnut trees huddled
together against the chill of a late winter day and across the street
from the Iglesia Nueva Vida sits perhaps the next big battleground
involving one of society's most noxious garbage problems.

There, an Oregon company wants to construct what is believed to be the
continent's first facility to melt -- that's right, melt -- tons of
hospital gowns, needles and other hospital detritus, including human
tissue and animals, every day. Its would-be builders tout the plant
as an almost miraculously clean and environmentally friendly facility.

But opponents call it a polluter and yet another environmental insult
to poor, rural and working-class people. They believe much more study
is needed on what is essentially an unproven technology.

The Rev. Fred Villasenor, pastor of Nueva Vida, said members of his
flock, many of whom speak only marginal English, were not well
informed about the plant.

"I don't know that any of the owners of InEnTec would be willing to
live next to one of their plants, but they're willing to have someone
else live next to it," he said.

The proposal and a new lawsuit filed by the company to help secure its
ability to build the plant have ignited a civil war in rural Tehama
County, with legal reinforcements pouring in from around the state.
The divisions cross ethnic, regional and local political lines.
Proponents as well as critics accuse each other of stretching the
truth beyond the breaking point.

Prominent San Francisco and Los Angeles big-firm lawyers have weighed
in on either side of the issue, which has split American Indians, area
political leaders and even the Tehama County counsel's four-attorney

Generating all this heat: A plan by InEnTec Medical Services
California, an arm of a Portland, Ore., company, to construct a $12
million plant in a light industrial area just outside of Red Bluff.

The facility, called a "plasma enhanced melter," would use
electrically produced heat approaching temperatures equivalent to
those on the surface of the sun to destroy as much as 20 tons a day of
medical waste shipped in from hospitals and clinics as far away as
Southern California. In this process, inorganic materials are absorbed
into a molten glass-like substance, which then cools into a solid form
that can be used to build roads, said David Farmer, president of
InEnTec Medical Services.

Tehama County planners and its assistant air pollution officer, Gary
Bovee, in 2004 and 2005, respectively, approved permits for the
project. The air pollution permits covered the melter unit and
associated generators, said Tehama County Counsel Will Murphy. The
generators would use gases created in the waste destruction process to
produce electricity.

The county's Planning Department, looking at the project under the
California Environmental Quality Act, determined that the facility was
so environmentally benign it did not need a full-blown environmental
impact report. Instead, planners issued a less stringent "negative
declaration" that found the project posed no significant environmental

But InEnTec's relatively easy ride through the regulatory process
began to stall last summer.

In August, San Francisco's Greenaction for Health and Environmental
Justice -- which monitors waste facilities and has acted to block
similar plants -- and a local group, Citizens for Review of Medical &
Infectious Waste Imports into Tehama County, challenged the facility's
air permits. In an apparently unprecedented action, a hearing board
for the county's air pollution district overturned the permits in

Opponents contended the company had been disingenuous about the
technology's benefits that were touted as "pollution-free," when in
fact it would produce emissions such as cancer-causing dioxins. The
pollution-free claim no longer appears on InEnTec's Web site.

"We believe this technology is an incinerator in disguise, and it has
the potential to harm public health and the environment," said Bradley
Angel, Greenaction's executive director. "We believe there are safer,
noncombustion technologies for the treatment of medical waste."

Angel takes credit for helping raise the project's profile in the
conservative county. He began investigating the project and eventually
went to the local newspaper with his concerns. "My phone," he said,
"started ringing off the hook."

'It's Called Gasification'

The distinction between incineration and other means of disposal is
important. There are no incinerators in California permitted to handle
medical waste, said Darice Bailey, chief of the waste management
section of the state Department of Health Services. Bailey's agency
has approved the plasma technology as an alternative treatment method.
She noted, however, that endorsement was limited to its ability to
destroy disease-causing agents and did not look at other environmental

Most of the state's medical waste incinerators shut down following the
implementation of strict new air pollution rules in 1990, said Jerry
Martin, spokesman for the California Air Resources Board. The agency
has been skeptical about the new technologies such as those proposed
for Red Bluff, which Martin said would still produce pollutants such
as dioxin. "That's why we're still a little bit concerned," he said.

Farmer, who has accused opponents of engaging in a misinformation
campaign against the project, acknowledged the plant would produce
some dioxins. He also conceded the company "may have had some
marketing materials" that described the melter unit itself as non-

But he said any dioxins would come from the electrical generators and
would be released at extremely low levels. The lack of incinerators
in California forces some waste to be sent out of state, and Farmer
clearly wants to tap this market. "It gets shipped halfway across the
country just to be disposed of," Farmer said. "We think that's not a
very smart way to handle waste. Why should California be sending its
waste to Texas to get rid of it?" In fact, he said, the plant would
represent a net reduction in dioxins released into the environment.
That's because trucks, which also produce the substance, would not be
shipping the waste as far. Farmer also insisted that the technology
does not constitute incineration. "It's called gasification," he

Southern California Next?

InEnTec plans to eventually roll out the process "across the country,"
Farmer said. He said the company is actively searching for a site in
Southern California to build a similar facility.

"We firmly believe it is the most environmentally friendly superior
technology that exists, and we think it has good application, not just
for medical waste [but] for all types of waste material," he said.

That's exactly what concerns critics. If the Red Bluff facility
succeeds, "we're going to see this kind of thing all over the place,"
probably in poor and minority communities, said Luke Cole, an attorney
who directs the Center on Race, Poverty and the Environment in San
Francisco. The organization focuses on air pollution issues, and it
equates the technology with incineration.

"This is the camel's nose under the tent," Cole said. "We want to be
sure that before this thing goes anywhere it is adequately vetted."

At least some people in Tehama County don't want the project, whatever
it's called. They received a boost in December when the rarely
convened hearing board voted 3-1 to toss out the air permits that had
been issued for the facility, including its associated electrical
generating units.

Among other problems, board members found several "significant
changes" to the project that should have triggered a more complete
environmental review. Along the way, the project's stated purpose,
size and even corporate identity changed, the board found.

Those changes included a 15 percent boost from the company's initial
request in the amount of waste allowed under the air permit.

The board's nine-page list of findings, which was written by the
project's opponents, also cited the discovery of an old industrial
dump at the site. Old tires, drums and what appear to be metal pipes
and other debris were clearly visible recently in a large berm of
materials excavated from the area.

The board also found numerous other shortcomings with the air
regulators' action, including failing to properly scrutinize the
company's emissions data and "possible serious problems" at similar
facilities in Hawaii and Richland, Wash. The Hawaii facility had
broken down for months. The Washington plant was closed for years and
was "not a successful operation," the board found.

Company officials have countered that those plants were operated by
others who did not follow InEnTec's recommendations.

Critics: Minorities Left Out

Meanwhile, critics have also portrayed the issue as one raising
"environmental justice" concerns.

They note the proximity of the site to the Iglesia Nueva Vida -- New
Life Church -- a beige metal one-story building sitting less than a
mile from the proposed melter site that serves a primarily Hispanic
congregation. Opponents charged that many key documents were never
translated into Spanish.

Farmer, however, said neither the county planners nor air regulators
have ever required documents to be translated into Spanish.

Additionally, opponents complain that no studies were done to explore
for American Indian artifacts or examine the possibly disproportionate
health effects on local American Indians, who eat fish from local
waters as well as berries and other native plants.

"The medical waste melter is not acceptable in that area or within
this county, period," said Fred Mankins, a Pit River Indian who
opposes the facility.

Not all local American Indian leaders feel the same way, though. The
Paskenta Band of Nomlaki Indians, which operate the Rolling Hills
Casino near the Tehama County town of Corning, are among major
investors in the InEnTec project. The project offered a "great
opportunity" for the tribe to diversify its holdings and to do so in
its home county, said John Crosby, the band's economic development
director. "It would be on the cutting edge of technology, as we
felt," Crosby said. He said the project would produce minimal air

Farmer described the Paskenta tribe as a majority shareholder in the
company developing the Tehama plant. He said the band is the only one
with legal rights to any Indian cultural artifacts in the county, and
that InEnTec has an agreement with the Paskentas to call in the tribe
if it finds anything. He noted the plant's location in the county's
industrial park. "It's zoned appropriately for this," Farmer said.
"For anyone to suggest we're trying to bring it in on top of minority
groups, I think just doesn't have the facts right."

Suit Disputes Board's Authority

In February, InEnTec sued the hearing board in Tehama County Superior
Court in an effort to overturn the board's ruling. InEnTec Medical
Services California v. Hearing Board of the Tehama County Air
Pollution Control District, 56912.

The lawsuit attacks the board's expertise, the conduct of the hearings
that preceded the decision and the board's authority to deny the
permits. For example, the lawsuit claimed that once a "lead agency,"
in this case the Planning Department, has adopted a negative
declaration under CEQA, the air district had no authority to conduct
further environmental review except under limited circumstances.
Further, the board's jurisdiction extended only to questions of
whether air laws and regulations were followed, not the state
environmental law.

InEnTec's suit argued there was no evidence any of the changes to the
project cited by the board would "create new or more severe
environmental effects."

The board, the lawsuit noted, had not convened for seven years before
the InEnTec appeal. It never had previously heard a citizen appeal of
a permit. None of the four members who participated in the hearings
"had any background or experience in air quality regulations or in
CEQA requirements" relevant to the permits at stake, the suit said.
InEnTec's lawsuit also alleged opponents used the board's three-month
process to rally antagonism toward the project and intimidate its

"The hearing board's failure to enforce order, decorum and fairness in
the appeal proceedings, including its unwillingness to restrict public
comment given outside the requirements for proper evidence, tainted
the proceedings to the prejudice of InEnTec and the district, each of
whom was denied a fair hearing," the lawsuit charged. Basically, the
suit challenges the board's conclusion that additional environmental
review is needed, said Ronald Van Buskirk, a San Francisco partner at
Pillsbury Winthrop Shaw Pittman, which represents InEnTec. "You could
do an [environmental impact report] but you'd be wasting your time,"
said Van Buskirk. Farmer said InEnTec wouldn't have objected if
county planners had wanted a more detailed review. But he said the
planning officials correctly determined the project needed no more
scrutiny. "We don't think it's appropriate to bring CEQA issues into
an air permit discussion," he said.

Tehama Position Questioned

Given the conflicting elements at play, critics have wondered how
vigorously the county's lawyers will defend the permit revocations.

Project opponents have said they believe many county officials favored
the facility. Murphy, the county counsel, meanwhile, advised the
hearing board during its deliberations. One of Murphy's deputies
represented the official who issued the permits.

"The county is in the remarkable legal position of having to both
defend and challenge the hearing board's decision," said Daniel
Irving, an attorney and Red Bluff City Council member who is active in
opposing the facility.

Irving said the city has also complained that the county had not kept
it fully informed of the project.

Tehama County at least partially mollified some of those concerns by
bringing in a heavyweight law firm of its own, Bingham McCutchen, to
defend the hearing board. Two veteran Bingham attorneys, Karen Nardi
of San Francisco and Rick Rothman of Los Angeles, lead the firm's
efforts in the case.

"I can certainly confirm that we expect to give a vigorous defense of
the hearing board's action," Nardi said.

But lawyers representing Greenaction and the local activist group also
expect to play their own role in defending the board.

"What the hearing board is willing to sign off on may be very
different from what the groups are willing to sign off on," in terms
of a settlement, said San Francisco attorney Cole. He, along with
Irving and Tim Grabiel, a lawyer for the Natural Resources Defense
Council in Santa Monica, represents the environmentalists in the case.

"We're coming in to protect Greenaction's and the citizens' interests
in this matter," Grabiel said. "We haven't had time to find out to
what extent they overlap with the hearing board's but they may be

Murphy, however, rejects any suggestion, implied or otherwise, that
the defense will be less than diligent. For one, he said the county
itself has no formal position in the litigation.

Within his own small office, he said, he erected an "ethical wall"
between himself and the deputy representing the air pollution officer,
who is named as a real party in the case. The office maintains two
sets of documents, with each attorney assisted by separate staff,
Murphy said.

Tehama County supervisors, who double as the board members of the air
pollution district, hired Bingham McCutchen to provide "competent
representation" for the hearing panel, he said. He said the county is
paying Bingham's lawyers between $400 and $425 an hour for their work.

"You don't go out and select people from your community to do an
important thing like hear appeals in air pollution control matters and
then leave them hanging out there to dry," Murphy said.

When the litigation will get under way in earnest is anyone's guess.
The entire Tehama County bench -- consisting of four judges -- recused
itself from the case, according to Marcia Taylor of the Administrative
Office of the Courts.

The case was assigned to retired Alameda County Superior Court Judge
Richard A. Haugner. However, InEnTec disqualified Haugner for
undisclosed reasons of prejudice. As of Thursday, no judge had been
chosen to oversee the case, Taylor said.


For more information on this campaign and issue, visit the Greenaction
web site http://www.greenaction.org.