City Again Bars Toxics Incinerator : Action Faces Test in Federal Court

Switching strategy in response to a U.S. District Court order, the San Diego City Council on Monday refused for the second time a company’s request to fire up an experimental hazardous-waste incinerator in a La Jolla research park.

The council, which was rebuffed by the federal court last month for rejecting the incinerator on environmental grounds, cited its authority over land use in denying Ogden Environmental Services a permit to operate the incinerator at the GA Technologies plant on Torrey Pines Mesa.

On a 7-1 vote, the council approved a resolution offered by District 1 Councilwoman Abbe Wolfsheimer that called the incinerator “substantially different” from the type of research intended in the “scientific research zone” where the plant is situated. District 7 Councilwoman Judy McCarty was the lone dissenter.

Wolfsheimer said the council never intended to allow research in the zone that could affect institutions outside the laboratory, that the “presently unknown” dangers of hazardous-waste burning could harm human health, safety and the environment, and that the incinerator could do economic harm to nearby schools, hospitals and businesses.

Other Sites to Be Offered

The resolution instructed City Manager John Lockwood to find city-owned land in an agricultural or industrial zone to offer Ogden for the project.

Ogden attorney David Mulliken, who last month won the federal court order overturning the council’s Dec. 8 rejection of a conditional-use permit for the incinerator, promised to take Monday’s council decision back to U.S. District Court Judge Judith Keep immediately.

“The council’s action eliminates any question about what this council’s intention was all along,” Mulliken told reporters after the vote. “This city council is not going to permit this project.”

But Assistant City Attorney Curtis Fitzpatrick said that the council hopes that Keep will “look at these reasons as some reasons why this facility should be located somewhere else. We look at this as a legitimate land use decision made by the legislative authority.”

Wolfsheimer added that “it’s not a slam-dunk, but I think it’s winnable. Judge Keep asked us to make specific findings based on our land use authority.”

Ogden’s proposal is part of a federally sponsored effort to encourage demonstration projects across the United States aimed at finding innovative ways to safely dispose of hazardous waste.

Unanswered Questions

In a proposal that has been approved by the federal Environmental Protection Agency and the state Department of Health Services, the firm would burn hazardous waste on 365 calendar days over a 5-year period, consuming 150 55-gallon drums of waste each day.

The council turned down the project in December, agreeing with more than 200 people who packed the hearing that there are still too many unanswered questions about the incinerator to allow its operation on John J. Hopkins Drive.

The incinerator would be 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, according to the city’s planning department.

But Keep said in a May 11 decision that the city’s first “denial 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 ordered the city to reconsider Ogden’s application.

Banking on Declaration

This time, the city appears to be banking on Keep’s declaration that “I do not hold that the city is precluded from reviewing the Ogden facility under its traditional land use authority.” Leaders of the Environmental Health Coalition, a community organization, urged the council last week to look toward that clause as a way to deny Ogden the permit.

In an interview, Wolfsheimer also suggested that the city’s arguments on safety concerns were not adequately presented in court during the first hearing of the matter.

But Mulliken asserted that Keep’s decision to allow the council to “review” the project means only that it can place restrictions on the incinerator’s operation, not ban it altogether.