Court Trashes Plans for Refuse-to-Energy Plant in San Marcos

The 4th District Court of Appeal dealt a serious setback Tuesday to the proposed trash-to-energy plant in San Marcos, telling the city that it must repeat the arduous public hearing process on the plant.

The San Marcos City Council erred in allowing construction of the controversial, $220-million trash-burning power plant, the appellate court ruled, because the city had not first ordered an environmental impact report (EIR) on the general plan amendment that gave conceptual approval to the use of a trash-fired power plant at the county’s landfill in San Marcos.

Because that general plan amendment was flawed for lack of an EIR, any conditional use permits that were issued based on the amendment also were flawed, the jurists ruled in a 27-page opinion.

Opponents of the trash plant gleefully hailed the long-awaited ruling, characterizing it as a significant setback to North County Resource Recovery Associates, which had hoped to begin construction on the plant within three months.

“It gives us a second lease on life in this battle,” said Stephen Isaac, president of Christward Ministries, which filed the lawsuit sparking Tuesday’s ruling by the appellate court. Christward Ministries operates a 640-acre religious retreat within two miles of the landfill, off Questhaven Road on the southern border of San Marcos. It was one of several North County organizations, including North County Concerned Citizens, Citizens for Healthy Air in San Marcos (CHASM) and several North County city councils, which had opposed the trash plant on the grounds that it was environmentally dangerous and would cut property values.

Isaac said critics of the plant will use the second series of public hearings to provide what he and others called new evidence that emissions of dioxins and heavy metals from the plant as well as ash residue from the incineration process would be dangerous to area residents.

He also said the new public hearings will give opponents an opportunity to better pitch alternatives to such plants, in which trash is burned and most of it is reduced to less space-consuming ash, while the resulting heat generates power for sale to utilities.

“We hope to provide the city with enough new information that the city would have the basis for reconsidering its earlier decision,” Isaac said.

The San Marcos City Council approved the special use permit for the project by a 4-1 vote in January, 1985, after protracted public hearings that involved major environmental and public health agencies at the federal, state and county level.

The agreement allowing construction of the plant was conditioned on more than 100 different requirements that industry and environmental experts had said were among the most detailed and stringent in the country. The developer had hoped to use the San Marcos permit as a model with which to win support for similar plants around the United States.

Since approval of that conditional use permit in 1985, only one seat on the council has changed hands. Officials said it could take the city six months or so to go through the process of approving permits again.

Richard Chase, managing director of North County Resource Recovery Associates, was subdued when told of the court’s decision but said the setback is manageable.

“Obviously, we’re disappointed. We’ll have to go through the whole process again, and it’s hard to say how long that would take,” he said. “But since we’ve been through that process before, everyone has been educated by it and is very much familiar with the project, its concerns and how they should be resolved.”

While Isaac said new information has surfaced in the last two years that creates additional concern about the environmental and health safety of such plants, Chase maintained just the opposite, saying that new information over the last two years “is favorable to the project.”

San Marcos City Manager Rick Gittings said it is unlikely that the city will appeal the decision to the state Supreme Court because of uncertainty over whether the state’s highest court would even consider the matter.

“It sounds like we’re back to Step 2,” Gittings said. “Step 1 would be a complete starting over, but since a lot of the data is available, we’re ahead of that point.”

Mayor Lee Thibadeau said he was “disappointed but not surprised” by the ruling Tuesday, noting that the same appellate judges previously had ruled that the city erred in not ordering the environmental impact report on the general plan amendment.

It was unclear in that previous ruling, however, whether the permits issued by the city in the wake of that amendment were also invalid. Indeed they are worthless, the court said Tuesday.

“The general plan amendment was void from the beginning; it was the failure to prepare an EIR before considering the amendment which led us to rule it invalid,” Justice Howard B. Wiener wrote. “It did not have some magical life allowing the city to issue permits in the interim between its adoption and our invalidation. . . .

“For us to approve the permits here before the city has adopted a valid general plan amendment would essentially require us to substitute ourselves in for the San Marcos City Council.”

“This is the same court that made such a bad decision earlier that complicated things,” Thibadeau said, “and now they’re covering themselves.”

Councilman Lionel Burton, who chaired the exhaustive public hearings two years ago when he was mayor, was more bitter about the court’s ruling.

“It shows the sad state of affairs we have with our legal system,” he said. “These three judges have no understanding of the issues at all, as far as I’m concerned.”

He said the city already had conducted an environmental impact report when the general plan was amended years earlier to allow the land on Questhaven Road to be used as a county landfill.

“All of our legal minds felt that a negative (environmental impact) declaration was sufficient because we were not changing the use of the land, but simply changing the technology on it, from a landfill to a resource recovery plant,” Burton said. “In either case, the land would be doing the same thing, taking care of trash. This is very frustrating, but we’ve been through it (the permit process) once and we’ll do whatever is necessary to do it again.”

Councilwoman Pia Harris, on the other hand, said she was delighted by the court’s ruling; she was the only council member who voted to oppose the plant two years ago.

“The citizens of North County should be very grateful that we have to go through the entire process again, since we have found (since 1985) that any level of dioxin is unsafe,” she said. “As an elected official who is supposed to look out for citizens’ health and welfare, I feel the decision by the court is excellent.”

Bruce Hamilton, an original organizer in 1984 of North County Concerned Citizens to oppose the plant, said Tuesday:

“The plant was doomed from the start, and this is just part of the process of closing it out. Mr. Chase will say, ‘No big deal, we’ll go through it again and they’ll approve it again.’ But Mr. Chase is missing his bet at the county level.”

County supervisors on March 3 are scheduled to consider an amendment by the plant’s backer involving its contract with the county, which owns the site. Hamilton said he believes that Tuesday’s ruling, coupled with debate over whether to amend North County Resource Recovery Associates’ operating contract and its financial terms with the county, might give county supervisors cause to reconsider the plant altogether, and look instead to other landfill sites or other forms of technology.

Chase disagreed: “Given the amount of time and money that already has been spent on this project, and given the fact that this is still by far the best alternative, environmentally and economically, we’re looking at a delay but I don’t think the process will arrive ultimately at a different result.”

He said financing for the project, including $185 million in state-backed bonds and $32 million in private capital, is in escrow and not in jeopardy as a result of the court’s decision.