Court Clears Way to Begin Waste Burns : Ogden to Fire Up Experimental Incinerator at Torrey Pines Within a Few Months

In a potentially expensive rebuke of the San Diego City Council, a federal court judge Monday cleared the way for a private firm to start burning hazardous waste in an experimental incinerator atop La Jolla’s scenic Torrey Pines Mesa.

Officials from Ogden Environmental Services promised immediately after Monday’s court hearing to begin long-delayed test burns of waste within a few months. If Ogden can win approval from the U.S. Environmental Protection Agency, some of that waste will come from Glen Avon’s notorious Stringfellow Acid Pits and Fullerton’s McColl waste dump, which are high on the federal government’s Superfund cleanup list.

Three years after Ogden’s predecessor, GA Technologies, first asked the EPA for permission to fire up the incinerator, U.S. District Court Judge Judith Keep on Monday barred the City Council from using its authority to issue a “conditional-use permit” regulating the project.

Keep, agreeing with Ogden attorneys’ arguments, ruled that the city had shown through its actions that it had no intention of merely regulating the project, but had banned it outright. That posture was a violation of Congress’ strongly worded legislation encouraging development of innovative hazardous-waste disposal technology, and state and federal agencies’ conclusions that the project is safe, Keep said in an oral ruling from the bench.

‘A National Priority’

“Without delving into the council’s intent, I find the city’s conduct over the past few years has resulted in a de facto ban” of a federal program that is “a national priority,” Keep said.

City Council members and city attorneys were scheduled to discuss whether to appeal the ruling at a closed session today. Unless the city can reverse Keep’s decision in an appellate court, Ogden will soon start operating California’s first demonstration project under 1984 amendments to the federal Resource Conservation and Recovery Act and its first “circulating bed combustor” for use in disposing of hazardous chemicals, acids and sludges.

Ogden’s EPA permit limits it to burning 438,000 gallons of waste during a maximum of 365 days over the next 3 1/2 years. The demonstration project, which also has been approved by the state Department of Health Services, is a small-scale predecessor to larger commercial incinerators that will be developed based on research with the current model, said Ogden President Donald Krenz. There will be no commercial burning of waste at the La Jolla site, Krenz said.

The incinerator’s location, in a research park amid the eucalyptus groves of San Diego’s posh enclave, was frequently mentioned by its opponents as one of the strongest reasons for denying the permit. The incinerator will operate near the UC San Diego campus, three hospitals, the Torrey Pines State Reserve, residential tracts, a day care center and the Torrey Pines Inn.

Excessive Amounts of Solvent

Diane Takvorian, executive director of the Environmental Health Coalition, said Monday that preliminary tests of the incinerator showed that it emits excessive amounts of the solvent toluene. The coalition, which belatedly sought to support the city through “friend of the court” status Monday, will urge the council to appeal Keep’s decision, Takvorian said.

“The people living in and around that facility are left with a great big question mark,” said council member Ed Struiksma, referring to the council’s “unanswered questions” about the incinerator’s health and environmental impact. Struiksma is the city’s acting mayor while Mayor Maureen O’Connor and Deputy Mayor Gloria McColl are traveling abroad.

“I really am heartsick about this,” said council member Abbe Wolfsheimer, who represents La Jolla. “This is absolutely devastating news and I am very, very sorry for every person in this city.”

Wolfsheimer predicted that the incinerator will cause economic damage to the area’s tourism industry and be a detriment to the development of the nearby Golden Triangle center of hotels and office buildings.

Could Be Costly

The ruling could be very costly to the city if Ogden attorneys decide to follow Monday’s victory by seeking unspecified monetary damages for the business they lost while the council delayed approval of the permit. Ogden attorney David Mulliken said that decision will be made shortly, noting that the firm’s $20-million investment means that such damage claims could be heavy. Mulliken also announced that he will take legal action to recover unspecified attorneys’ fees for Ogden.

The council first rejected the project Dec. 8. Ogden sued and won a May 11 decision from Keep, who ruled that “denial of the permit on generalized health and safety concerns” was impermissible because the state and federal agencies had approved its safety.

Keep sent the issue back to the council, which denied Ogden the permit again June 13 without holding another hearing or taking new testimony. Instead, the council approved a resolution read by Wolfsheimer citing its authority over land use. With only councilwoman Judy McCarty dissenting, the council said it never intended to allow such projects in its high-tech “scientific research zone.”

When Ogden went back to court claiming that the second rejection was a thinly disguised ban of its incinerator, the council approved a hastily drafted emergency ordinance Wednesday steering such projects into agricultural and manufacturing zones.

Strategy Backfired

That strategy clearly backfired Monday, when Keep said that Wednesday’s vote helped to convince her that the city wanted to ban the project. “Could the city go back this afternoon and look at this site on Broadway, and say: ‘With downtown redevelopment and Horton Plaza going in, this site is wrong for the courthouse?’ ” she asked Deputy City Atty. Leslie Girard.

Keep also said that council members bungled the “one last chance” she gave them by sending the project back for their consideration May 11, when they again denied the incinerator without new findings.

“The city has again failed to articulate any specific, legitimate requirements that it might impose on the project,” she said, opting for a denial that “appears designed to appease the court.”

Keep’s critiques set off finger-pointing between longtime antagonists Wolfsheimer and City Atty. John Witt over who has responsibility for the city’s legal strategy. Witt said his office evaluated the council’s options and “it was the client’s decision to go ahead with it.”

But Wolfsheimer said that Witt advised council members in closed session to issue the second denial without taking new testimony, and to issue last week’s emergency ordinance.