Arguments Heard in Trash-Plant Bidding Suit : Environment: Three North County cities hope to convince a judge that the $240-million trash-to-energy project should be open to competitive bidding.

Superior Court Judge Jeffrey Miller heard arguments Friday in a lawsuit over whether the construction of the proposed $240-million San Marcos trash-to-energy plant should be open to competitive bidding.

The suit, one of about a dozen challenging various aspects of the plant, pits three North County cities against the county and the plant’s developer, North County Resources Recovery Associates. The outcome hinges on the definition of ownership and whether the plant constitutes a public works project.

If the project is found to be a public work, as opposed to the county contracting for a service, Miller must decide within 90 days whether the proposal is subject to competitive bidding.

Attorneys from Escondido, Encinitas and Carlsbad argue that, because the county owns the land on which the plant would be built, and because the preliminary draft of the contract between the county and North County Resource Recovery Associates calls for the county to oversee the design and construction of the plant, the project constitutes a joint venture. They also cite the preliminary draft of a contract between the county and North County Resources Recovery Associates that calls for the county to oversee the plant’s design and construction.

The cities also argue that the county would shoulder significant environmental and financial risks associated with the project, and that the county thus would be part owner of the plant.

“Ultimately, the ownership is likely to shift to the county, who has an option to buy it,” said Dwight Worden, city attorney of Encinitas, during the hearing. “The county is entangled in the ownership of the project.”

“The purpose of the competitive bidding process is to protect the public.. . . . What is the harm to putting it out to bid? . . . At worst, NCRRA will be the only ones who come out to bid,” Worden said.

But attorneys for the county and NCRRA said the delay caused by subjecting the project to competitive bidding would put plant financing in jeopardy, since bonds floated to pay for the project expire in December.

Ronald Van Buskirk, the attorney representing NCRRA, argued that competitive bidding is not required because the county is merely contracting for a service and is not getting involved in ownership of a public works project.

The actual building of the plant is financed by private interests, Van Buskirk said.

Van Buskirk cited clauses in the proposed contract between the county and NCRRA forbidding the county from supervising or directing construction of the plant. He said the developers have the right to reject any alterations in design proposed by the county.

“That doesn’t sound like ownership to me,” Van Buskirk told Miller.

“Oversight provisions mean nothing,” Van Buskirk said, arguing that the county oversees other projects without having ownership of them.

After the hearing, Worden said that he expects a decision within a couple of weeks, but that it will not come easily.

“There is no litmus test of ownership. There is no one thing that says the county owns this, there are only indications of ownership,” Worden said.