Trash-Energy Plant Pact Ruled Invalid : Court Says County Must Renegotiate Contract for Facility in San Marcos

A San Diego Superior Court judge ruled Friday that the county’s five-year-old contract with North County Resource Recovery Associates (NCRRA) to build a trash-to-energy plant and recycling center at a county landfill in San Marcos is invalid and must be renegotiated.

The effect of the ruling was debated by both sides, with opponents to the controversial project claiming it essentially sends the project back to square one, and the developer claiming the $217-million project is still on track.

At issue in Friday’s opinion was a ruling by the Fourth District Court of Appeals last February that the original environmental impact report for the project, and the subsequent General Plan amendments and permits issued by the city allowing the plant’s construction, were invalid.

The city of San Marcos certified a second environmental impact report this past summer, reissued the special use permits after another series of public hearings and then put the project to a citywide vote in September. In that election, voters approved the project by less than 250 votes.

First Report a Key

But Superior Court Judge Alpha L. Montgomery ruled Friday that the appellate court intended not only to invalidate the original environmental impact report but all approvals and permits granted in reliance on that environmental impact report--including the contract between NCRRA and the county calling for the private firm to build the trash plant at the county landfill in the first place. The contract requires the certification of an environmental impact report on the project, and the county delegated that requirement to the city of San Marcos.

Without that contract, all subsequent approvals and permits by the City of San Marcos, as well as a host of other county, state and federal agencies, are moot, since they hinge on the county contracting with NCRRA to construct and operate the facility.

NCRRA attorney Wesley Peltzer said the ruling was not significant because NCRRA and the county were in the process of renegotiating the contract anyway.

NCRRA might appeal Montgomery’s decision or simply put forward a new proposed contract rather than renegotiate the existing one, Peltzer said.

Taking a Chance

He said NCRRA would continue with its construction plans--including a ceremonial ground breaking next week. “Until a final judgment is entered, we’re still entitled to proceed at our own risk, which is precisely what we’ve been doing to this point anyway.”

But the attorney for Christward Ministries, which operates a 640-acre retreat center in the Elfin Forest area of San Marcos and which has steadfastly opposed construction of the trash-burning power plant for environmental reasons, interpreted Montgomery’s ruling differently.

“His ruling means two things: First, that NCRRA is a nonentity since the contract which is the underlying document in this whole process, and which gave NCRRA the right at all to be at the landfill site, is now invalidated,” said Michael Hogan, attorney for Christward Ministries, which brought the suit.

Just as important, Hogan said, was that the second environmental impact report approved by San Marcos “specifically incorporated the old EIR and specifically referred to the old EIR as valid and certified.”

As a result, Hogan contended, the revised environmental impact report is also invalid and must be recertified.

He said that since a number of government agencies had acted on the initial environmental impact report--including the issuance of a permit by the federal Environmental Protection Agency, as well as an agreement by the California Pollution Control Financing Authority to issue $185 million in tax-free construction bonds--those actions might now also have to be reaffirmed.

Second Thoughts on Project?

The possibility exists, Hogan speculated, that the EPA and the state’s bonding agency might have second thoughts about the project and refuse now to endorse it.

“Since the old EIR was invalidated, and the contract is invalid, and since the old EIR was incorporated into the new one as well as the General Plan, the effect is that the new General Plan, the zoning changes, the special use permits and the new EIR are also defective,” Hogan argued. “Every aspect of that project is now defective in one way or another, not to mention whether the EPA approval and the state bonds are affected.”

Peltzer had a different interpretation. “I asked the judge if the county could piggyback on the second EIR, and he said ‘yes,’ ” Peltzer said. “So the county will review the second EIR and determine if any additional environmental documentation is needed to support amendments to the contract or to support a new contract.”

He said the second environmental impact report simply lifted data and material from the first report and updated information for more current conditions. “There’s nothing wrong with the raw data. I don’t see any problems.”

‘Another Nuisance’

Richard Chase, managing director of NCRRA, characterized Christward Ministries’ action as “just another nuisance” that would have “no substantial impact on the project,” which has been delayed several years because of nagging litigation by opponents.

Sharon Reid, deputy director of the county’s Department of Public Works and the key county staff person working on the NCRRA project, said the county counsel’s office would study Montgomery’s ruling to determine the impact.

“At worst, we would negotiate a new agreement for the project, and I have no idea what the impact of that would be,” she said. “And I don’t know the impact on other permits or financing.”

She said it would “not be inconceivable that much of what exists in the contract we entered into in 1982 and amended in 1985 would be the basis for a new agreement.”

She disagreed with Hogan’s contention that the second environmental impact report is entirely invalidated by Friday’s ruling. “If a portion of the document is invalid, it certainly would not invalidate the entire document. It simply may be wanting in areas where there are faults” and those can be corrected, she maintained.

But Jonathan Wiltshire, one of the leading opponents to the project, said Friday’s ruling gave the never-say-die opponents to the project yet another opportunity to block construction of the trash-to-energy plant.

“The ruling raises several new questions including, shouldn’t this new contract be open to bid?” Wiltshire said. “And if it requires a new EIR, and we certainly believe it does, we would like the county to look harder at alternatives to the project,” especially in light of the county Board of Supervisors’ decision on Tuesday to pursue a countywide recycling program.

Second Chance for Debate?

He said that the approval of a new contract would enable opponents of the project--including the city councils of Encinitas and Carlsbad--a second chance to debate the merits of the project at the county Board of Supervisors. There was little such discussion when the initial contract was approved in 1982 because there was no strong opposition to it at the time, he noted.

Peltzer said that prospect of renewed debate did not concern him since even a renegotiated contract would be open to public scrutiny and debate in any event “and we were already prepared to deal with that.”

NCRRA had asked the county to amend the contract since a number of economic conditions in the trash business had changed since the first contract was signed in 1982, Chase said.

For instance, in the original contract the county agreed to pay NCRRA $8.56 per ton of trash to be disposed, and the county would have then been reimbursed by the private trash haulers. Chase had asked the county to increase the county’s disposal fee to $16.56 per ton because of increased operating costs and the loss of tax benefits because of changes in tax laws.

Wiltshire said project opponents have continued to hound NCRRA because “we believe this project is wrong, life-threatening and has no place in our environment.” Reacting to Friday’s ruling and its potential to sidetrack the project, Wiltshire said, “When it seems that all hope is dashed and the clouds are darkest, suddenly there is an opening of light.”

The proposed plant would process virtually all of North County’s trash by recycling much of it, burying some of it in the adjoining landfill and burning most of it, feeding boilers to generate enough electricity to serve about 40,000 homes.