Firm Insists City Must Reconsider Test Burns : Claims Court Leaves No Doubt About Right to Operate Hazardous-Waste Incinerator

A scientific research firm, contending that a federal court ruling leaves the San Diego City Council no choice but to allow it to operate an experimental hazardous-waste incinerator in La Jolla, demanded Thursday that the council reconsider its application and make that decision within 30 days.

In a letter to a city attorney, the firm also asked that the city discuss the matter in closed session Tuesday “and advise Ogden immediately following that session how we may proceed to resolve this already-excessively delayed matter.”

“In my judgment, (council members) are effectively precluded from saying no to this experimental operation at this location,” said David Mulliken, attorney for New York-based Ogden Corp. Mulliken claimed that U.S. District Court Judge Judith Keep’s ruling Wednesday vindicates the firm’s long-held position that state and federal approval gives the firm the right to run the incinerator at the GA Technologies plant on Torrey Pines Mesa.

“The judge is saying that it’s not enough that (council members) just don’t like it there,” Mulliken said.

Keep agreed with Ogden on the major disputes in the case, ruling that “denial of the permit based on generalized environmental or health and safety concerns, where the EPA has already found the health, safety and environmental risks to be acceptable, is impermissible.”

She also ruled that the city cannot require Ogden to obtain an environmental impact report in order to obtain the permit because the state Department of Health Services has already covered the same ground in its review.

“The city has no grounds for imposing the environmental impact report requirement on Ogden,” Keep wrote.

C. Alan Sumption, the chief deputy city attorney who represented the city in the lawsuit, said Thursday that he had not read Keep’s decision because he was tied up with another court case. But Sumption said he would look to the council’s authority over land use in an effort to halt or delay the incinerator.

Ogden sued the city Feb. 17, two months after the council voted 7-2 to deny the firm a “conditional-use permit” for the incinerator and refused to reconsider its application unless it cleared up unanswered questions by conducting an environmental impact review.

Five Years of Burning

With council members Judy McCarty and Wes Pratt dissenting, the council sided with environmentalists and La Jollans who voiced doubts about allowing the burning of 150 55-gallon drums of hazardous waste over five years.

Environmentalists also cited the incinerator’s location on John J. Hopkins Drive--near the UC San Diego campus, three hospitals, a child care center, some residential tracts, the Torrey Pines Inn and the Torrey Pines State Reserve.

After claiming victory by virtue of the council’s decision, the Environmental Health Coalition dropped a Superior Court lawsuit it had filed to halt the incinerator.

But Ogden maintained that the city must defer to the expertise of the state health department, which said in September that the project is safe, and the U.S. Environmental Protection Agency, which also approved the project.

The incinerator is part of a federally sponsored effort to develop alternatives to dumping of hazardous waste in landfills.

City officials expressed confusion over their next move. Mayor Maureen O’Connor, relying on news reports of the decision, said that “I don’t think that the judge implied you have to grant a (permit). I think she said you have to hold another hearing.

“If the judge says we have to hold another hearing, we’ll hold another hearing. But I don’t think I’ll change my mind,” O’Connor said.