Hopes for Rejecting Incinerator Rest on Restating Case

A San Diego city attorney said Friday that the City Council still has authority to deny a scientific research firm a permit to operate a hazardous-waste incinerator in La Jolla, but must formulate much more specific reasons to back its decision.

The council denied the permit on a 7-2 vote in December, but U. S. District Court Judge Judith Keep ruled Wednesday that the council’s reasons for doing so were “impermissible.”

An attorney for Ogden Environmental Services, the firm seeking to start up the experimental incinerator at the GA Technologies plant on Torrey Pines Mesa, said Thursday that the ruling leaves the council no choice but to award Ogden the permit.

But Chief Deputy City Atty. C. Alan Sumption, who represented the city in the matter and read Keep’s decision for the first time Friday, said there “is still room to make a legitimate denial, but this judge, if she hears it again . . . is going to want to know specifically why.”

In reconsidering Ogden’s permit application, Sumption said, the council and the Planning Department must craft an argument based on the city’s land-use authority, perhaps arguing that the proposed incinerator’s proximity to three hospitals, a day-care center, housing tracts and other populated areas makes the location a bad one.

David Mulliken, Ogden’s attorney, said Friday that the ruling requires the council to approve the incinerator and its location because both have won the nod of state and federal officials, whose authority preempts the city’s.

Keep ruled that the council’s reliance on “generalized environmental or health and safety concerns” to deny the permit was impermissible because the U.S. Environmental Protection Agency had already found the incinerator to be safe.

The city cannot require Ogden to submit to an environmental impact review, because the state Department of Health Services has already covered that ground in its evaluation of the project, Keep ruled.

City Atty. John Witt said he will discuss the matter in closed session with the council May 31. The council may discuss the matter in open session the same day, he said.