San Marcos Council Votes for Trash Plant; Foes to Fight On

SAN MARCOS —  Legal and election challenges notwithstanding, a privately operated trash-fired power plant has been approved by the City Council, 4-1--but only after a novel plan gave citizens the power to blow the whistle if the plant pollutes the community.

That element, attorneys for both sides say, is unique in the nation because it would extend to private citizens the right to review the plant’s emissions data and begin shutting down the plant if the emissions exceed standards.

In essence, the citizen can become his own regulatory agency in monitoring the plant and enforcing emissions standards. That prospect is important because many critics of the plant say they doubt that county and state regulatory agencies would keep close tabs on the plant’s operation and emissions.

The citizen watchdog concept will be contained in a contract to be signed by the city and the plant’s builder-operator, North County Resource Recovery Associates (NCRRA), officials said. Those individuals or citizens’ groups that want to serve in the watchdog capacity would also be invited to sign the contract, giving them an official role in monitoring the plant.

The proposed terms of the contract were not publicly discussed Tuesday night. The City Council made only oblique reference to the contract by saying that NCRRA would have to sign the pact before being allowed to proceed with the project.

The council late Tuesday night also made more stringent some of the 108 conditions laid down by the Planning Commission, which approved the $120-million project in December. The council also added some conditions of its own.

San Marcos thus became the first city in California to approve a trash-fired power plant of this size, able to burn upwards of 1,000 tons of garbage daily to generate electricity and to reduce dependence on the adjacent county landfill on Questhaven Road, near the rural community of Elfin Forest.

The approval--which came after an unprecedented 27 hours of testimony, questioning and debate over seven nights--may be meaningless, however. A special election is scheduled for April 30 that, if it withstands an expected court challenge, could effectively block construction by mandating that the plant be approved by a two-thirds majority of voters. Opponents say they also are ready to press their own legal challenge to the plant’s environmental impact report.

They say the plant would pollute North County’s air and reduce the value of neighboring property.

The sole City Council opponent to the project was Pia Harris, who, her voice cracking with emotion, asked that the project be rejected on grounds it was environmentally dangerous and because there were better alternatives to burning garbage.

While she received a standing ovation from her supporters in the audience, the other council members remained quiet, and her motion died for lack of a second.

Without publicly explaining their positions, the remaining four councilmen voted to approve the environmental impact report relating to the project, and to approve the project itself.

Councilman Jim Simmons said afterward: “In reviewing all the information, my biggest concern was whether the data are accurate and enforceable. After weeks of careful study, I was able to answer both questions. The impacts are mitigable and we can enforce the mitigations.”

“The opponents were challenging the integrity of the people making this decision, versus the technical issues at hand,” said Simmons, who himself was accused at one point of having a financial interest in the outcome of the vote.

Councilman Corky Smith said after the vote, “The evidence on one side was overwhelming compared to the evidence on the other side. I dealt with this issue in the best interest of my community. This is a good way to take care of trash. When a scientist from Sacramento who oversees public health in California came down here and said this plant posed no danger to public health in San Marcos, well, that made my decision a lot easier.”

Mayor Lionel Burton said his reason for voting in support of the project “is too complex for comment,” while Councilman Lee Thibadeau said the trash plant environmentally was a better alternative than continued use of the landfill, which he characterized as a “time bomb.”

Opponents of the trash plant, on the other hand, renewed their pledge to resist the project in court and at the ballot box.

Jonathan Wiltshire, who spearheaded the successful initiative campaign that resulted in the calling of a special election on April 30, was critical of plans by NCRRA to file a lawsuit aimed at voiding the election.

“We are determined that the people in our town will have the last word in this matter. It is pathetic that they (the trash plant’s backers) would try to circumvent the will of the people,” he said.

Bruce Hamilton, who helped organize the grass-roots North County Concerned Citizens to oppose the plant, said of the vote, “Well, that’s what money does. That’s power and politics, and some members of this council have just committed political suicide.”

Hamilton said the concept of individual citizens playing a role in monitoring the plant’s emissions and wielding enforcement powers “is novel and ingenious.”

“The bottom line is, we don’t want the plant,” he said. “We don’t want to control it; we want alternatives to it. But, if we have to live with the plant, then this (enforcement contract) is as good a concept as I’ve heard of. But it still doesn’t make the plant acceptable to us.”

The proposal was made by the Environmental Defense Fund, a national, nonprofit group that had been asked by the city to evaluate a risk assessment study of the plant’s emissions.

City Atty. Warren Diven said the contract essentially would hold NCRRA accountable to the city on emission standards. The contract would be more enforceable than a condition of the special use permit because, while NCRRA might argue later that a permit condition is preempted by state or federal law, the contract would be binding.

“Cities don’t have the same regulatory authority that is granted to the Environmental Protection Agency or the county Air Pollution Control District,” Diven said. “So we’re attempting, through contractual agreement, to attain that regulatory authority.”

A draft of the contract calls for NCRRA to report to the city--and any other individuals who are parties to the pact--any time emission of pollutants topped the allowable levels. NCRRA then would have to overcorrect; that is, reduce emissions twice as much as the amount of the excess pollution.

If NCRRA does not overcompensate within 45 days, the plant would be ordered shut down, according to the draft language.

And if NCRRA were to fail to provide emission monitoring information within five days of a written request, the plant would be ordered shut down, Diven said.

“A private citizen or a group like North County Concerned Citizens or Citizens for Healthy Air in San Marcos (which led the initiative drive for the special election) can become parties to this agreement and act as a whistle blower,” Diven said.

In addition to the contract, the city will establish an environmental review board to monitor the plant’s operation, independent of other regulatory agencies.

“We don’t know of any other board or agency in California that exists solely to watch over one particular project,” planning director Darrell Gentry said. “It would be like establishing separate atomic energy commissions for every nuclear plant.”

Another condition calls for the plant to shut down if dioxin accumulation on the ground reaches 0.1 part per billion--the standard recommended by the EPA and the federal Centers for Disease Control in Atlanta.

NCRRA also would be required to make substantial street improvements and sponsor household toxic waste education and waste recycling programs.

Other conditions address such subjects as worker safety, landscaping, odor and noise.

In response to claims that property values will drop because of the plant, property owners will be allowed to contract with NCRRA for compensation for any depreciation of their property from its 1982 market value, if an appraiser determines that the depreciation was caused by the trash plant. On the other hand, if the property increases in value, NCRRA would be entitled to half the profit.

Richard Chase, managing director of NCRRA, said he was pleased with the City Council’s approval and didn’t balk at any of its conditions.

“We have never asked to be taken on trust. We have always said we will do these things, and we are willing to put them down in writing, so people don’t have to rely on promises or assumptions or the accuracy of computer models,” he said.

“This project is exceptional in terms of the amount of scrutiny it has undergone by all levels of government officials.”

Chase said that while his company is preparing a lawsuit to challenge the validity of the April 30 election, it is also preparing its campaign to win voter approval should the election be held.

In addition, because the election might stand up in court and NCRRA might lose at the ballot box, Chase said, the company is pursuing permission from the county to build the facility 500 feet west of the current site, just outside the city limits and within the jurisdiction of the county Board of Supervisors.