City Agrees to Pay Ogden $1.25 Million

The San Diego City Council ended its 17-month effort to remove a controversial hazardous waste incinerator from Torrey Pines Mesa on Tuesday, agreeing to a settlement of its lengthy legal battle with Ogden Environmental Services that will cost taxpayers $1.25 million in damages and attorneys’ fees.

The council agreed to drop its appeal of the federal court order that authorized Ogden’s test burns if Environmental Protection Agency reports show that the firm’s test burn of contaminated soil from Fullerton’s McColl waste dump caused no harm to the public. The initial tests were conducted the week of March 27.

The $1.25 million is to be paid in three installments, the first of which will be sent to Ogden when U. S. Magistrate Harry McCue certifies the results of EPA emissions analyses.

The settlement does not prohibit Ogden from conducting future test burns of hazardous waste, nor does it require the company to move its experimental incinerator from La Jolla’s GA Technologies Research Park, said David Mulliken, Ogden’s attorney.

‘Put Things Behind Us’

“This has nothing to do with current or future testing at the La Jolla facility,” Mulliken said. “That goes on unencumbered. This is a chance to put things behind us. From our perspective, we are just delighted to be able to close this chapter of the case.”

Despite the $1.25-million payout, Assistant City Atty. Ron Johnson said the settlement does not prove that the city pursued an unwinnable legal strategy in the face of strongly worded federal legislation encouraging the development of innovative solutions to the nationwide problem of how to dispose of hazardous waste.

“There were important legal and health issues that needed to be litigated,” Johnson said. “We litigated in good faith on solid legal grounds. This is just the cost, unfortunately, of pursuing your legal rights and having the court disagree with you.”

Narrow Council Approval

City Hall sources said the council approved the settlement by the narrowest of margins, voting 5 to 4 in a closed Tuesday-afternoon session to accept the agreement hammered out with McCue’s help.

Councilwoman Abbe Wolfsheimer, who represents La Jolla and opposed the settlement, said through an aide that she was “angered and saddened that Ogden will continue to test burn. The only satisfactory settlement is one that causes them to cease burning.”

Ogden and the council have been butting heads in court since Dec. 8, 1987, when the council voted not to grant the firm a conditional-use permit to burn the oil-contaminated soil, containing 32 compounds, including 18 suspected carcinogens.

The Environmental Health Coalition and La Jolla residents claimed that the incinerator’s proximity to the UC San Diego campus, three hospitals, the Torrey Pines State Reserve, residential tracts, and a day care center made it too hazardous.

Ogden sued the city and won a June 27 decision from U. S. District Court Judge Judith Keep, who ruled that the city had shown through its actions that it had no intention of merely regulating the project, but intended to ban it outright. That posture was a violation of Congress’ intention to encourage innovative hazardous-waste technology and state and federal agencies’ conclusions that the incinerator was safe, Keep ruled.

The city asked Keep to reconsider, but the judge, in a Dec. 13 ruling, upheld her previous decision. The city subsequently filed its appeal.

Approval to Burn

Ogden won final approval for the test burn from the county Air Pollution Control District March 23, and began firing up its circulating bed combustor under the watchful eyes of federal and county regulators March 27 in an attempt to win a lucrative federal contract to clean up the notorious McColl waste dump. Analyses of ash from the burn and emissions from the incinerator’s stack during the four-day experiment are pending.

After its legal victory in federal court, Ogden filed suit against the city for blocking the start-up of its incinerator, claiming that the delays could cost the firm the chance to win federal Superfund cleanup contracts.