Environmentalists Drop Lawsuit Over Permit for Test Waste Incinerator

Saying that it abandoned a battle because it had already won the war, an environmentalist group opposed to an experimental hazardous-waste incinerator in La Jolla has dropped a lawsuit against a state agency that had granted a permit to the plant.

Officials of the Environmental Health Coalition, however, downplayed the Superior Court action, arguing that the San Diego City Council’s refusal to authorize the plant’s operation in December effectively rendered the lawsuit moot.

But representatives of Ogden Environmental Services Inc., the firm that hoped to burn PCBs, heavy metals and other hazardous waste at a plant on Torrey Pines Mesa, characterized the coalition’s decision to drop the lawsuit as an admission that, as Ogden attorney David Mulliken put it, “their arguments had more political impact than legal or scientific value.”

“This was a pretty big battle for them to surrender before it’s even fought,” Mulliken said. “When they had to confront the reality of it, they knew they were going to lose and so they walked away from it.”

Diane Takvorian, the Environmental Health Coalition’s executive director, offered a diametrically opposed interpretation of the decision to drop the lawsuit, an action taken earlier this week during a pretrial settlement conference and made public Wednesday.

“We already have our victory, so there was no need to follow through with the lawsuit and spend our limited resources on something we’ve already won,” Takvorian said. “That doesn’t mean we wouldn’t refile the suit if (Ogden) ever tries to bring this thing back to life.”

In November, the coalition filed suit against the state Department of Health Services, arguing that the permit that the agency granted to Ogden was illegal because an environmental impact statement had not been performed. In response, Ogden and the state contended that an environmental report was not needed because the project had been reviewed and judged safe by a number of other regulatory agencies, including the federal Environmental Protection Agency, which also approved the plan.

In December, the council, by a 7-2 vote, sided with environmentalists and La Jollans who protested that there still were too many unanswered questions about the incinerator to allow its operation near the UC San Diego campus, three hospitals, a child care center and residential developments.

At the time of the council’s decision, Ogden officials vowed not to abandon its efforts to operate the incinerator--a position that Mulliken reiterated Wednesday.

“I’m not sure whether this is the last step in one process or the first in another,” Mulliken said, adding that Ogden officials plan to “re-evaluate” whether to ask the council to reconsider the issue in light of this week’s court action. “But this shows that the council’s vote . . . isn’t the last that’s going to be heard of this issue.”