Opposition Still Won’t Die Quietly : Trash-to-Energy Plant Builder Ready to Dig

Through more than four years of planning, delays, legal challenges and campaigning, Richard Chase has worked toward the construction of a state-of-the-art recycling and trash-burning plant for North County’s refuse.

For most of those four years, Jonathan Wiltshire and others--from small property owners to large developers and mayors of neighboring cities--have been pestering Chase every step of the way with their protests, counter-campaigning and lawsuits.

On Tuesday, Chase’s North County Resource Recovery Associates passed its stiffest test so far, winning approval from San Marcos’ voters to proceed with the $217-million project.

‘Longer Row to Hoe’

But on Wednesday, Wiltshire declared--as he has before--that the battle to block the plant’s construction won’t be over until it’s over.

“We would have liked to have won in the election,” Wiltshire said, “but we still think we can stop the plant through legal challenges. It’ll just be a longer row to hoe.”

For his part, Chase says that the plant can be operating in 2 1/2 years. It will be, he says, the most innovative, environmentally sound trash disposal facility in the nation, at which trash will be recycled, buried or burned.

So while Chase is busy lining up grading permits and bulldozers and releasing construction funds from escrow accounts and making final contract negotiations with the county, the attorneys for Wiltshire and other opponents of the trash plant will be preparing lawsuits.

They’ve succeeded in stopping Chase before, Wiltshire notes, and they hope--voter approval notwithstanding--to succeed again.

It’s all but a foregone conclusion that one or more lawsuits will be filed in Vista Superior Court by next Thursday--the legal deadline for any challenges, said attorney Michael Hogan, whose clients include Citizens for Healthy Air in San Marcos and the Questhaven Retreat, a religious retreat just east of the San Marcos landfill. The plant will be built at the landfill.

Among the possible grounds for a lawsuit, according to Hogan:

- The health risk assessment of the plant’s emissions “was expressly stated by the state Department of Health Services as inadequate, incomplete and misleading.”

- The environmental consequences of enlarging the existing San Marcos landfill were not addressed in the environmental impact report for the plant, even though most officials acknowledge that in order for the trash plant to have a life expectancy of more than 35 years, the landfill would have to be enlarged to handle non-combustible trash and the residual ash of what is burned.

- The EIR gave scant attention to the plant’s environmental consequences outside San Marcos itself, failing “to consider the regional impacts of the proposal--issues that are of significance to Carlsbad and Encinitas, which has residents living closer to the plant than many San Marcos residents.”

(The plant site, originally in unincorporated county territory, was annexed to the City of San Marcos during the approval process to give the city control over its construction and operating permits--and so that the city could reap the millions of dollars in tax revenue and fees the plant is expected to generate over the years.)

Chase Undaunted by Threats

California’s environmental protection laws warn developers that if they proceed with projects that are subjected to legal challenge, they are proceeding at their own risk, even in the absence of a court-ordered injunction.

Chase said he is not be intimidated by the threat of lawsuits and will proceed on his own schedule.

In recent years, NCRRA has swatted down any number of lawsuits challenging the project. In one, an appellate court found that the City of San Marcos had failed to consider the environmental consequences of amending its general plan, a step necessary to granting the conditional use permit for the plant.

The ruling resulted in a two-year delay and forced Chase to take his application to the council for a second round of public hearings. During those hearings, the council ordered a public vote to make the ultimate decision on the issue.

Although the 2 1/2-year span from initial council OK to voters’ approval resulted in higher project costs, Chase said NCRRA probably will still come out ahead, at least from a public-relations standpoint.

Benefits of Vote

He said he does not know of any other instance in the nation where voters have approved a trash-to-energy plant, and the fact that NCRRA passed that test augurs well for the corporate partnership backing NCRRA if and when it tries to market similar projects elsewhere in the country.

It may be more a question of when than if; Chase said Wednesday that although he will be spending at least half his time planning and overseeing the construction of the San Marcos plant, “I will be looking for new development opportunities.”

Chase said he is annoyed by the threat of still more lawsuits but dismisses the opponents’ grounds for challenge as baseless and says he is confident the plant will be built.

“We have been so extremely cautious in our approach this time, with lawyers inspecting every step of the way, that it is inconceivable to me that there is any legitimate cause against what we’ve done,” Chase said.

“Even though it is technically not relevant to the court’s appraisal of a lawsuit, the fact that it has been voted on in a referendum of the people will have an impact. Courts are reluctant to overturn the legitimate decisions of other parties such as city councils and even more unwilling to overturn a vote of the people.”

Other Suits Possible

There may also be suits from the cities of Encinitas and Carlsbad. The mayors of both cities said Wednesday that, although no decision has been made regarding a legal challenge to the plant, they remain committed to trying to stop the project.

“We’ll have to consider all the options,” Encinitas Mayor Marjorie Gaines said. “It is fairly clear that there are a number of unresolved issues, and we may seek a resolution of those issues in court.”

Carlsbad Mayor Bud Lewis called the outcome of the election “a real tragedy” but said his city would investigate the cost of legal action before deciding whether to pursue the matter in court.

“When you’re talking lawsuits, you’re talking about bucks,” Lewis said, “and that depends on how far you’re going to take it and how long it’ll be. I don’t know how much it would cost the city to get involved.”

A host of private property owners near the trash plant site had already warned the San Marcos council that they would sue the city for damages if the plant is built and results in a decline in the value of the pricey homes in the rural area between San Marcos and Escondido known as Elfin Forest.

Such lawsuits, however, could not be filed until the plant is built.

Chase, for his part, said he is moving into the next phase of the plant’s construction.

Permits Sought

A top priority is to secure approval from the city staff to grade the 15-acre site. “The technical work on the permits is completed,” Chase said. “Now we need to get those permits issued and pay the necessary fees so we can get the bulldozers lined up. We hope to be pushing dirt within the next couple of weeks.”

Next, Chase needs to complete negotiations with the county Board of Supervisors, to which NCRRA is technically under contract to dispose of the trash. Such a contract had been signed, but in the two ensuing years, conditions have changed, requiring new or amended terms, Chase said.

In the original contract, for instance, the county agreed to pay NCRRA $8.56 per ton of trash to be disposed, and the county would have been reimbursed by the private trash haulers who would in turn pay fees to the county. In the new contract now being negotiated, NCRRA increased the disposal fee to $16.56 per ton of trash.

“That increase is directly attributable to the delays caused by the litigation of the opponents,” Chase said, “because there have been increases in general costs and some loss of tax benefits because of changes in tax laws during the two years’ delay.”

Chase maintained there are no terms in the proposed contract to cause either the county or NCRRA any particular grief. “It will remain our responsibility to design the plant, build it, operate it and finance it. We, and not the county, are responsible for any cost overruns and for delays in the construction,” he said.

“The contract is a good enough deal (for NCRRA) to provide sufficient incentives for the companies to go ahead and invest the money and take the risks, but it’s not a penny better than that.”

Contracts Negotiated

The third line of activity for Chase in the wake of Tuesday’s election is to take out of escrow the $185 million in tax-exempt bonds authorized by the state’s Pollution Control Financing Authority to help finance the construction.

The bonds were held in escrow pending the outcome of the election. Their repayment is guaranteed by the New York investment house of Shearson Lehman Bros.

Finally, he said, engineers at Thermo Electron Corp., based near Boston, and the Houston firm of Brown & Root, the two partners behind NCRRA, will begin sending out specifications for equipment procurement and begin negotiating contracts for major purchase orders.

Tuesday’s election also marks the victorious re-emergence of political consultant Tom Shepard after a four-year absence from politics.

Shepard was a political consultant to Roger Hedgecock in his 1983 mayoral campaign. Shepard’s firm disintegrated after he, Hedgecock, convicted swindler J. David (Jerry) Dominelli and Dominelli’s former companion, Nancy Hoover, were indicted on charges relating to that campaign.

Shepard pleaded guilty to misdemeanor conspiracy and was fined $1,000 and ordered to perform community service work for his role in funneling illegal contributions to Hedgeock’s mayoral campaign through his political consulting firm.

Shepard, analyzing election results on Wednesday and noting that his campaign won in four of the five mobile-home park precincts, commented, “I’m pretty good at what I do, and I’d like to continue doing political campaigns in this area.”

Indeed, Shepard has already been hired by opponents of a proposed initiative in Del Mar that would ban smoking in that city.

“You may see more of me,” he said. “My number’s in the book.”