Assembly Bill 2588, the Toxics Hot Spots Act, is a bill that is intended to protect the public from being made sick by the pollution released into the air by industry. Masonite generates enough pollution per year to put the public at risk of toxic poisoning, and is, therefore, subject to the law under Assembly Bill 2588. This law requires Masonite to have the sources of toxic emissions and the toxic pollutants identified in order to establish an emission inventory plan. Once this has been established, an emissions impact report is developed by measuring the actual rate of emission of each toxic pollutant from each source. Based upon these two sources of information, an assessment is made to determine the impact that the pollution will have on the health of the local community. This assessment is summarized in the Health Risk Assessment, a large report which discusses the impact of all the pollutants and predicts their effect on the health of the public.
Masonite was about a year behind in completing this process and in the spring of 1993, the Health Risk Assessment and supportive data were released to the Citizens for a Healthy Ukiah (CHU) for their review. Significant information was blacked out (redacted) in the Health Risk Assessment.For example, a statement was blacked out which indicated that they substituted Cresol in place of formaldehyde in the manufacturing process of molded doors. We wanted to use the base data to validate the quantity and rate of emission of many pollutants discussed in the Health Risk Assessment. We believed that some of the information and conclusions in the Health Risk Assessment were wrong and needed to be challenged.
Unfortunately, a great percentage of the basic data that Masonite used to write the Health Risk Assessment was likewise blacked out (redacted). This prevented us from being able to analyze the data and develop an informed opinion about the accuracy of Masonite's calculations and the conclusions that were made in the Health Risk Assessment.
Julie Cook of CHU wrote a letter to the Mendocino County Air Pollution Control District (MCAPCD) under the Public Records Act of California requesting that the data in the Emissions Inventory Report and the Health Risk Assessment be made available to Citizens for a Healthy Ukiah in order that they could conduct an independent analysis to determine if Masonite's figures and estimates of actual health risks were accurate. In response to Julie's request, Masonite filed a law suit against the MCAPCD, to prevent the District from releasing the requested information to CHU or any other member of the public. CHU and the MEC found out about the law suit when Masonite's attorney brought a copy of the Temporary Restraining Order (TRO) granted by Judge Luther into the MEC, and explained that Masonite was taking this action to protect their "trade secrets".
After discussing this situation with Julie Cook and Garry Flint, Betty Ball of the Mendocino Environmental Center contacted the First Amendment Project in Oakland, a law firm dedicated to the rights guaranteed under the First Amendment, and the enforcement of environmental laws. They are specifically involved in enforcement of AB2588, the Toxics Hot Spots Act. Recognizing that the outcome of this case could have statewide implications for the public's right to information in Health Risk Assessments issued in compliance with AB2588, two First Amendment Project Attorneys, James Wheaton and Elizabeth Pritzker, agreed to represent CHU in this case, and to ask for Intervenor Status in order to protect the public's interest. CHU was granted intervenor status.
At the Preliminary Injunction Hearing in Judge Luther's Court, Masonite's attorney argued that the censored data must stay censored in order to protect Masonite's trade secrets, and prevent competitors from replicating their products.With assistance from Garry Flint and Julie Cook, CHU's attorneys studied the data from both the AB2588 mandated Health Risk Assessment, and from Masonite's permit application to the USEPA, and argued that censoring the data did not comply with AB2588, the intent of which is for the public to have access to uncensored data so they can independently assess the accuracy of the data and the conclusions in the Health Risk Assessment.
Judge Luther denied the Preliminary Injunction and ruled that Masonite had not complied with the requirement to indicate the location of trade secrets on their facility diagrams in the Health Risk Assessment, and that therefore Masonite had to release all of the data in the Health Risk Assessment and Emissions Inventory to CHU and the public.CHU activists, of course, were delighted with the ruling, but, true to form, Masonite appealed the ruling to the State Appellate Court in San Francisco.
Masonite was granted an immediate stay on release of any of the data by the Appellate Court, pending their consideration of the case. Recently the Appellate Court issued an opinion that has surprised CHU's attorneys, because their opinion extended beyond Masonite's request. The Appellate Court requested that Judge Luther reverse his decision, and asserted that Masonite has the right to black out everything they want with no recourse. The decision also granted Judge Luther a certain amount of time to respond to the Appellate Court. Judge Luther has not yet done so.
Meanwhile, CHU's attorneys Elizabeth Pritzker and James Wheaton are asking the Appellate Court for a reconsideration of their decision, based on the intent of AB2588. This is a precedent setting case, and will have ramifications for all AB2588 mandated Health Risk Assessments in the State. James Strock, Director of CALEPA is closely watching this case because the outcome will impact the way pollution is regulated (or not) statewide.Several other environmental organizations, such as Citizens for a Better Environment, have offered letters of support for this case because of its importance.
An outcome in favor of Masonite could mean that industries across the state could freely provide grossly censored data to the public. Such censored data will not allow activists or experts to independently assess and validate the results obtained by industry. This would greatly undermine the effectiveness of CALEPA, and hinder the public's ability to have an impact on the control of pollution generated by industry. This would result in an increase in pollution and pollution-related illnesses in our state.
Most of CHU's activists and other pollution activists in the Ukiah Valley simply want Masonite to install affordable and effective pollution control devices on the entire Masonite facility. Over half of the Masonite facility has no pollution controls. The outcome of this case will impact both CALEPA and USEPA's review and monitoring of Masonite. Without access to uncensored data, our chances of obtaining pollution controls on Masonite are greatly reduced.
Whichever way the Appellate Court rules on the motion for reconsideration, the case will be appealed. Be ready to participate in taking this case to a higher court. This is an important case. Win or lose, the outcome will have significant impact upon the citizens of the State of California.
We need to raise $5,000.00 for expenses to continue this legal action at the appellate court level. This is a bargain deal.It is for the costs, such as copies of files from the MCAPCD and USEPA, transcripts, analysis of what date we have access to, and phone calls. The attorneys are doing the work on contingency, which means they will only get paid if we win. Please participate in this important, historic court action by donating time and/or as much money as you can - in a lump sum - or monthly, to help with our expenses. Tax deductible donations may be made payable to Rural Institute/CHU, and mailed to 106 W. Standley, Ukiah 95482.
Thank you for your assistance!
Copyright Mendocino Environmental Center 1998
Permission granted to excerpt or use this article if source is cited