City Readies Appeal on Experimental Incinerator

The San Diego City Council on Tuesday authorized its attorneys to prepare an appeal of a federal court decision allowing operation of an experimental hazardous-waste incinerator on Torrey Pines Mesa in La Jolla.

The council will review the matter one more time in closed session, but city attorneys and private lawyers assisting them are proceeding on the assumption that the case will be taken to the U. S. 9th Circuit Court of Appeals, Assistant City Atty. Ron Johnson said.

“Our instructions are to prepare it and file unless we get some other decision before Feb. 7,” Johnson said. The city has until Feb. 11 to file the appeal, he said.

Public Hearing Sought

In a second closed-session decision, the council agreed to ask the regional Air Pollution Control District to hold a public hearing on an upcoming test burn of waste in the controversial incinerator, Mayor Maureen O’Connor announced. A district spokeswoman said the request will probably be denied.

“We’ve never held a public hearing unless it was a big project,” said Lynn Eldred, public information officer for the district, which must approve the test burn along with the U. S. Environmental Protection Agency and the state Department of Health Services. “Technically, it’s a small-scale project.”

Eldred said the district may decide as early as this week on Ogden Environmental Services’ request to test-burn petroleum residue from the McColl waste dump in Fullerton for 30 hours over four days beginning Jan. 30.

The tests would allow officials from the three regulatory agencies to determine how well the experimental incinerator disposes of 34 compounds, including 11 suspected carcinogens such as benzene, arsenic and chloroform.

Fullerton Project

If the tests are successful, Ogden could win a contract to move a larger, portable incinerator on 10 flatbed trucks to the Fullerton site, where it would reconstruct the facility for use in cleaning up the waste. McColl has been the target of unsuccessful cleanup efforts since the early 1980s.

O’Connor, acknowledging that the council has no authority to require a public hearing, said the council agreed to draft a letter to the district to reflect its concern over the test burn and the continued controversy over the incinerator.

But David Mulliken, Ogden’s attorney, called the council’s letter “more political intrusion into a process that should already be concluded.”

Federal and state regulatory agencies have declared Ogden’s experimental incinerator in the GA Technologies Research Park safe, but environmentalists and other opponents have long objected to its location near populated areas in one of the city’s most posh enclaves, and have called for more extensive review of the facility.

The incinerator would operate near the UC San Diego campus, three hospitals, the Torrey Pines State Reserve, residential tracts, a day care center and the Torrey Pines Inn. Ogden’s EPA permit allows it to burn 438,000 gallons of waste during a maximum of 365 days over the next three years.

In June, U. S. District Judge Judith Keep barred the council from issuing a “conditional-use permit” regulating the project, ruling that two city rejections of the incinerator before her decision constituted a “de facto ban “ of the project.

Keep ruled that strongly worded federal legislation encouraging the development of innovative hazardous-waste disposal technology did not give the city that authority. On Dec. 12, Keep declined a request by city attorneys to reconsider her appeal, setting the stage for the council to decide whether to take the matter to the 9th Circuit Court.

Environmentalists cheered Tuesday’s council actions. “That’s wonderful. We were hoping the council would continue to fight it,” said Diane Takvorian, executive director of the Environmental Health Coalition. “We think that’s the right course.”

214 Post Cards Sent

The coalition has organized a campaign that has resulted in 214 post cards being sent to the pollution control district opposing the test burn, Eldred said.

“We’re talking about health, about what people breathe,” said Councilwoman Abbe Wolfsheimer, who represents La Jolla and is strongly opposed to the incinerator. “We’re talking about safety. We’re talking about transporting hazardous waste.”

Mulliken, however, noted that the appeal will not stop operation of the incinerator during the months it will take before a hearing is held. “The appeal concerns us only in the sense that we’re going to have to devote more time and energy on an issue we believe has already been decided on the merits,” he said.

Mulliken threatened to revive Ogden’s dormant motion to recoup attorneys’ costs from the city if the council goes forward with the appeal.

In the appeal, the city will probably employ the same arguments it made in its case to Keep, asserting its authority over land-use issues, Johnson said.