The San Diego City Council rejected a private firm's bid Tuesday to operate an experimental hazardous-waste incinerator in La Jolla, agreeing to consider the plan again only if the firm clears up unanswered questions by conducting an environmental impact review of the project.
The decision before a packed council chamber is almost sure to earn the council further conflict with Ogden Environmental Services. The firm will not abandon its efforts to burn PCBs, heavy metals and other hazardous waste in a "circulating bed combustor" at the GA Technologies plant on Torrey Pines Mesa, according to attorney David Mulliken.
But Mulliken dodged questions about whether Ogden will file a lawsuit challenging the council's action.
"I guarantee you that Ogden is not going to drop this project," Mulliken said after the vote. "We're going to take whatever steps we need to get this facility operating as quickly as possible."
With council members Wes Pratt and Judy McCarty dissenting, the council sided with environmentalists and La Jollans who said there are still too many unanswered questions about the incinerator to allow its operation on John J. Hopkins Drive.
The incinerator would be near the UC San Diego campus, three hospitals, a child care center, some residential tracts, the Torrey Pines Inn and the Torrey Pines State Reserve, according to a report from the city's Planning Department, which urged that the "conditional use permit" be denied.
Mayor Speaks for Doubters
Mayor Maureen O'Connor spoke for doubters when she said that past technological advances assumed to be safe have turned out to be hazardous.
"A lot of people who had overdoses of X-rays now have leukemia. My husband is one of them. Nobody told him it would cause cancer," O'Connor said.
New Councilman Bruce Henderson said, "It doesn't seem at all appropriate to have experimental facilities like this in the midst of heavy concentrations of people."
But Mulliken contended that the city must defer to the expertise of the state Department of Health Services, which reviewed the project and issued a decision in September that the incinerator was safe. Under the California Environmental Quality Act, or CEQA, the city has no grounds to deny the conditional use permit, Mulliken contended.
"The city clearly lacks the capacity to require an environmental impact review in relation to this project," he said. That was a "legally impermissible reason for them to deny the permit. The law requires them to defer to the (state health department)."
But Assistant City Atty. Curtis Fitzpatrick said that the same state law gives municipalities the power to decide land use issues such as this one.
'Still Have the Final Say'
"We still have the final say on the land-use decision," Fitzpatrick said. "One could argue . . . that CEQA isn't as abundantly clear as Mr. Mulliken suggests."
Ogden's proposal, which also has been approved by the federal Environmental Protection Agency, is to burn hazardous waste on 365 calendar days over a five-year period in a previously built incinerator. The company would be limited to burning 150 drums containing 55 gallons of waste each time it fired up the incinerator.
The experiment is part of a federally sponsored effort to develop alternatives to dumping hazardous waste in landfills.
More than 200 people organized by the Environmental Health Coalition and the local chapter of the Sierra Club turned out to oppose the project Tuesday. Representatives of the groups told the council that Ogden has not answered lingering questions about the safety of its plan.
"We felt that it's not an appropriate location. That's the bottom line," said Diane Takvorian, the Environmental Health Coalition's executive director. "The municipal code clearly states that the council has to determine that the public's health and environment are protected."
Exact Impact Unknown
Takvorian said that because Ogden has not conducted a risk assessment for each of the 600 kinds of waste it would be allowed to burn, no one knows exactly what the impact on people or the environment would be.
"It's not like burning trash where you have some consistent waste stream," she said. "Every day it will be a different waste stream. What we can say is that Ogden told us nothing about the waste stream, and that's a major reason why the community said 'not here.' "
Ogden said the most hazardous chemicals have been tested and thus there is no need to test other materials that are easier to burn.
Ogden's tests also show that in a "worst-case scenario" involving release of the maximum amount of chemicals during the worst possible weather situation, there would be no health effects even to hospital patients, said Joseph Charest, vice president of the Gable Agency, which is handling Ogden's public relations.
As part of its decision, the council agreed to waive the required one-year waiting period if Ogden wants to reapply for a permit once it obtains a full environmental impact review. Mulliken estimated that a review would take six to nine months.
Still pending is a lawsuit against the state health department by the Environmental Health Coalition over the agency's decision that an environmental impact review of the project was not necessary.