City May Compromise With Waste-Burning Firm

San Diego is considering dropping an appeal of a federal court decision allowing a private firm to burn hazardous waste in a Torrey Pines Mesa research park in return for the firm’s agreement to end its attempt to recoup more than $2 million in damages and attorney’s fees from the city.

The positions were outlined Wednesday by lawyers for the city and Ogden Environmental Services, who have engaged in more than a year of legal battling over Ogden’s controversial plan to operate an experimental hazardous-waste incinerator.

The two sides tentatively agreed to postpone the city’s appeal to the U. S. 9th Circuit Court of Appeals for 30 days while both sides explore a settlement. The San Diego City Council and Ogden executives must ratify any agreement for it to go into effect.

Key Question Unanswered

But lawyers for both sides refused to comment on the key question of whether the negotiations could include an agreement to ban the test burns or move the experimental hazardous-waste incinerator to a less-populated area, as environmentalists have demanded.

“I can tell you that the object is to come to a solution of the whole situation that would be acceptable both to the elected officials at the City Council level and to the Ogden people and to the citizens who are primarily affected by the burns at this point,” San Diego City Atty. John Witt said.

But he added that chances of stopping a test burn tentatively scheduled for March do not look promising unless the county’s Air Pollution Control District refuses to grant Ogden a permit.

The two sides are exploring a settlement that would call for the city to drop its appeal of a federal court decision allowing Ogden to burn hazardous waste in the GA Technologies research park. In return, Ogden would end its attempt to recover about $1.8 million in damages and $285,000 in attorney’s fees from the city for delaying the incinerator, according to Witt and and Ogden attorney David Mulliken.

Ogden’s plans for a first test burn of hazardous waste from the notorious McColl waste dump in Fullerton are under review by the county’s Air Pollution Control District. Originally scheduled for the end of January, the burn has been postponed, probably until March.

Any agreement by Ogden to halt or postpone the test burn appears unlikely. The firm has invested years and considerable expense to win permits from the federal Environmental Protection Agency and the state Department of Health Services for the right to conduct experiments at the La Jolla site. And it has spent added time and money in its victorious court battle over city attempts to prevent the research.

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

Keep said strongly worded federal legislation encouraging the development of innovative hazardous-waste disposal technology did not give the city the authority to regulate it. On Dec. 12, Keep declined a request by city attorneys to reconsider her decision.

As part of that legal action, Ogden sued the city for “unlawfully interfering” with the start-up of the incinerator, causing delays that Mulliken claimed cost the company the chance to win contracts to handle hazardous waste from dumps in California and Colorado. It also sued for repayment of attorney’s fees.

Although no formal damage figure has been discussed, Ogden estimates that the delays cost the firm $1.8 million, Mulliken said.

Appeal Now on Hold

On Jan. 17, the council authorized Witt to appeal that decision to the U. S. 9th Circuit Court of Appeals. A few days later, city lawyers filed a notice that they would appeal the decision.

But, in the settlement conference held before U. S. Magistrate Harry McCue on Wednesday, the two sides tentatively agreed to postpone the next legal battle for 30 days while they explore a settlement.

The conference came just two days after the Environmental Health Coaltion presented the nine council members with Torrey Pine seedlings to thank them for their decision to appeal the ruling.

The settlement conference was scheduled so quietly that Ogden Vice President Brian Baxter and Councilwoman Abbe Wolfsheimer, whose district includes the La Jolla site, did not know it was taking place. Wolfsheimer said city lawyers had informed the council in a closed session Tuesday that they would be “talking” to Ogden before going ahead with the appeal.

Wolfsheimer and Diane Takvorian, leader of the Environmental Health Coaltion, said they could only support a settlement that would prevent Ogden from burning hazardous waste on Torrey Pines Mesa.

“There would have to be a settlement where Ogden agreed not to burn in this area, but would have to agree to a transfer of sites, not necessarily in San Diego, maybe in the desert,” Wolfsheimer said.