Daily Journal (Los Angeles, Calif.), 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 learn?]

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 office.

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 impact.

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 December.

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 issues.

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- polluting.

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 said.

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 pollution.

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 supporters.

"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 different."

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.