Judge opens door for state agencies to talk to public about Entek health concerns

Entek CEO Larry Keith shows off a cooling system used to recover TCE during the manufacture of battery separators at the Lebanon plant. – Photo by Scott Swanson

Nearly a month after a Linn County Circuit Court judge granted Entek a temporary restraining order regarding a “communication plan” by the Oregon Department of Environmental Quality, another judge ruled May 4 in favor in the state.

The “communication plan” issue surfaced after an April 6 meeting between Entek officials and officials from the DEQ, the Oregon Health Authority, the Department of Justice and OSHA. State officials said they were concerned about the company’s emissions of trichloroethylene, a solvent that, at elevated levels, has been linked to various cancers, possible effects on fetal development and other health conditions.

Entek, which employs approximately 400 employees in Lebanon, manufactures battery separators and extruding equipment used to make complex cross-sectional parts. It uses TCE in its process to make the battery separators, according to a company statement in response to news coverage of the situation.

At the April 6 meeting state officials indicated they were planning to hold public meetings with local residents and company employees to discuss air quality monitoring near the plant.

On April 7, Linn County Circuit Court Judge Tom McHill granted a temporary restraining order against the Oregon Department of Environmental Quality, to launch the meetings.

Both sides argued before Judge Carol Bispham in hearings on April 10 and 12.

The parties filed “voluminous documents, including memorandums and authorities in support of their position” before each hearing, which did not allow adequate time for Bispham to review them and rule immediately.

Entek alleged that the state did not “have statutory or regulatory authority for their proposed communication plan,” that Entek would suffer “irreparable harm” harm from that plan, and that “misleading allegations” would negatively impact the company.

According to court documents, the state said that the company could not show that it would be irreparably harmed absent the injunction because there was no evidence that the communication would state or imply that Entek is in violation of regulatory standards.

The injunction would be ineffective because the “information is already in the public domain; public records requests for the information have already been submitted,” the state said.

If the defendants must answer inquiries from the public by state, we cannot answer any questions because ENTEK secured a court order to keep the monitoring a secret, then it is possible that Entek’s reputation will be worse off as a result, not better,” state attorneys said in court documents.

Additionally, the state argued that the “public records law authorizes and generally requires agencies to share records relating to their activities.”

While both sides agreed that Entek did not oppose monitoring, the state said Entek opposed allowing them “to inform the public that that they are monitoring and setting up air monitors to determine the levels of (TCE) in the areas around Entek and the ‘potential health threat.’”

Among the findings cited in her May 4 ruling, Bispham said Entek was “cooperative and agreed to provide the requested information to defendants by April 24, 2017.

Entek did release a report that day that showed their levels were “below the risk thresholds.”

Bispham found that the “parties agree on many facts,” including that Entek has a valid air quality operating permit, that the company is not in violation of that permit and that “Entek has taken a variety of steps to control TCE emissions from its facility and to protect its workers from occupational exposure.”

She noted that the state “admits that Entek does not pose an imminent and substantial danger to the public health and that the computer modeling data “is, admittedly, not accurate.”

Bispham found that Entek was in support of the state’s plan to set up an air monitoring system to measure actual concentrations of TCE in the area.

The plaintiff is not in favor of disclosing information about the air monitoring, stating they have concerns that there is no reliable data yet to determine the TCE levels or a health risk currently,” Bispham said. “Entek stated they have concerns about scaring people with unverified information and causing harm to Entek, when there is a lack of reliable data at this time.”

She ruled that the state agencies had “at least implied authority and probable cause to set up air monitor systems to measure air for TCE emissions.”

The agencies “had enough information to support a reasonable belief that the TCE emissions could ‘potentially’ be a health threat.”

While Bispham said Entek has shown they have “suffered adverse publicity,” the state sought to blame Entek because “the publicity occurred after the temporary injunction was in place.”

Bispham said Entek was “left with little recourse except that available through the court” because the state “threatened” to contact Entek employees and the public immediately, rather than wait for the final report which was due on April 24.

She said the despite that, Entek has “not shown they will suffer substantial and irreparable harm if they are not granted the injunction.”

The temporary restraining order that was issued on April 7, did not meet procedural requirements, “in that it failed to set forth in a reasonable or sufficient detail within the order, to clearly state the act or acts being restrained.”

Bispham went on to say that the court must “weigh the impact of an injunction on the public interest.” The DEQ and OHA are authorized to conduct monitoring activities related to TCE emissions.”

They have a “right and a responsibility to communicate about their activities with the public…under Oregon law, every person has a right to inspect any public record of a public body in this state, unless an exemption applies that the agency chooses or is requi red to claim.”