Memo Warned County of Risks at El Toro

Although Orange County officials said they were surprised to learn recently that they might be saddled with legal liability over environmental hazards at the former El Toro base, internal county memos show that such concerns had been raised nearly three years ago by county staff.

County supervisors said last week that they were upset that their staff had never conducted an environmental assessment of the property, which some want as the site of an international airport. The failure to make such a review might make the county liable for environmental risks, according to one of the county’s outside legal consultants.

But in a memo dated Oct. 28, 1997, county in-house counsel Richard Oviedo warned Gary Simon, a top official overseeing the El Toro project, of “unanticipated contamination” that “can result in severe consequential damages to the [county] or its subtenants.”

The release of the memos drew fresh criticism Monday from airport opponents, who accused county staff members of deliberately dragging their feet to sabotage a lease with the Navy that would allow money-making programs such as housing, horse stables, golf and child care at the base.

“The memos show the county has been playing hide the ball a lot, and this just confirms that they’ve known about these issues and could have dealt with them ages ago,” said Meg Waters, a spokeswoman for a coalition of anti-airport cities in South County.

Waters said she believed the county purposely stalled lease preparation because of the board’s pro-airport majority and to eliminate any possibility that enterprises other than an airport could operate there.

So many questions have been raised about the lease, especially the county’s failure to conduct the environmental assessment and its responsibility for future environmental problems, that the pact may not be approved in time to meet the Navy’s Sept. 1 deadline.

The Navy may then padlock the former base, creating a public relations nightmare for anti-airport groups who have proposed for the site a giant park with light industrial use under a so-called Millennium plan.

Supervisors are expected to discuss the Navy lease at today’s meeting.

But with the gates locked and no revenue in sight, some charge that the pro-airport side can begin pushing cargo flights and resume airport planning.

“I’m completely and utterly flabbergasted,” said Supervisor Thomas Wilson, an airport critic. “I’ve known for a long time I was being kept in the dark on El Toro issues, and in fact, the entire Board of Supervisors has been taken down a very, very dark alley on this one.”

In recent months, Wilson has joined with Chairman Chuck Smith, an airport supporter, to help negotiate a lease with the Navy for the 4,700-acre former base. Under proposal is a five-year lease that allows the county to generate revenue by subleasing office and warehouse space, in addition to housing and community programs.

Wilson said the new disclosure vindicated the board’s decision to create a separate El Toro planning office in the spring, a decision that took airport planning out of the hands of County Executive Officer Jan Mittermeier, whose decisions about El Toro had been criticized by the board.

As a result, Mittermeier left the county after accepting a settlement.

“There’s no doubt that these things should have been discussed and resolved a long time ago,” Smith said.

In addition to the environmental warnings, Oviedo’s memo also voiced concern about the need for an environmental assessment, or environmental base survey, and some of the legal impacts and obligations facing the county.

In a telephone interview, Oviedo said he recalled spending a lot of time doing “a lot of work” on his review.

“We did advise the program office of the substantial legal concerns involving the military leases,” Oviedo said, “including the requirements for an environmental baseline survey, and a joint inspection and contamination issues.”

Oviedo’s boss, County Counsel Laurence M. Watson, who received a similar memo through another deputy county counsel, rejected the notion that the county had done nothing since the time Oviedo outlined lease problems.

“That memo also pointed out there’s a lot of missing documents, and in addition, the Navy’s lease language has changed a lot over time,” Watson said.

The Navy’s posture toward the county changed, too, Watson said, recalling the Navy’s temporary decision not to negotiate a lease until the county won policing authority at the base and the impact from the passage of the anti-airport initiative, Measure F. After Measure F’s success, the county had few reasons to continue planning an airport, Watson said. The measure, which passed in March, requires a two-thirds vote for all new airports, jails and landfills.

“I know a lot of people like to take the position that nothing has happened since 1997 but that is not true. A lot has happened since then,” Watson said.

Simon, who received Oviedo’s memo, eventually was removed from El Toro’s master lease programming team in April of 1999 and his consultant’s contract was eventually terminated.

“I don’t remember negotiating any lease,” said Simon, who did not recall any warnings about environmental liability. “Most likely, the memo was a review of the Navy’s typical lease language.”

Mark Mispagel, the county’s special counsel on El Toro, who also received a copy of a similar memo and still works for the county, could not be reached for comment.

* TANKS POSE RISK

Five fuel tanks at El Toro must be upgraded or removed. B3