City to Try New Tactic in Ogden Ruling

The San Diego City Council voted in closed session Tuesday to ask a federal judge to reconsider her ruling in June that allows the start-up of an experimental hazardous-waste incinerator on La Jolla’s Torrey Pines Mesa, according to City Hall sources.

The step is seen as a preliminary move that might precede an appeal to the U.S. Court of Appeals, because city officials believe that they “don’t have a snowball’s chance in hell” of persuading U.S. District Judge Judith Keep to reverse her strongly worded order allowing Ogden Environmental Services to fire up its incinerator, one source said.

The closed-session vote was 8 to 1, with only Councilwoman Judy McCarty opposing the strategy, sources said. McCarty is the only council member who has consistently dissented in the city’s opposition to Ogden’s plan.

Attorneys’ Help This Time

City Atty. John Witt and Councilwoman Abbe Wolfsheimer, who represents La Jolla, refused to discuss the vote. Witt said he did not want to publicize the city’s legal strategy to Ogden attorneys.

City attorneys, who lost a lengthy court contest on the incinerator in June, this time will have the assistance of private attorneys who specialize in environmental law for the firm of Pepper, Hamilton & Scheetz. The firm is also helping the city defend itself from a U.S. Environmental Protection Agency lawsuit seeking fines for inadequately treated sewage.

Sue Oxley, an environmental activist who collected 3,600 signatures on a petition asking the city to appeal Keep’s ruling, lauded the council’s reported decision.

“I think there’s a lot of material that wasn’t presented to (Keep), and I would hope that would come up,” she said.

But Ogden attorney David Mulliken said that any route followed by the city “is not particularly troublesome to us, other than that we want to have this behind us. We’re very confident that Judge Keep’s decision was a correct one and will easily withstand scrutiny on appeal.”

Unless the city can win a stay of Keep’s order--either from Keep herself or from a higher court--Ogden can proceed with its efforts to build the experimental incinerator while legal battles continue.

The city has until Sept. 23 to take legal action continuing the case.

On June 27, Keep barred the City Council from using its authority to issue a “conditional-use permit” regulating the project.

Keep, agreeing with Ogden attorneys, ruled that the council had shown through its actions that it had no intention of merely regulating the project, but had banned it outright. That posture was a violation of federal legislation encouraging development of innovative hazardous-waste-disposal technology and went against state and federal agencies’ conclusions that the project is safe, she said.

The incinerator’s opponents had frequently argued that its location in the GA Technologies research park--near the UC San Diego campus, three hospitals, Torrey Pines State Reserve, residential tracts, a day-care center and the Torrey Pines Inn--was a prime reason to reject it.