Appeal Court Derails Plans for Trash Plant

SAN MARCOS — Plans for a controversial trash-to-energy plant here have been set back by months if not years by an appellate court ruling that city officials illegally tried to short-circuit the approval process.

The 4th District Court of Appeal ruled that the City Council should have ordered an environmental impact report (EIR) before amending the city’s general plan, which paved the way for North County Resource Recovery Associates to build the $220-million trash plant at the county landfill on Questhaven Road.

Instead, the City Council merely declared that amending the general plan to allow the solid waste management facility would have no negative effect on the area in comparison to the previous general plan, which called for a county landfill.

In their ruling Tuesday, the three-judge panel admonished the council for that decision, saying there was no question that changing the general plan from a landfill to a trash plant would have an environmental impact on the area. The court said the city, by not studying the consequences of the general plan amendment but by later adopting an EIR for the specific project itself, was guilty of “piecemeal environmental review,” which the California Environmental Quality Act was intended to eliminate.

The ruling left open the prospect that North County Resource Recovery Associates may have to repeat the entire, arduous approval process in order to construct the private facility. The plant is designed to burn most of North County’s garbage to reduce the dependence on landfills, and to generate electricity for 40,000 households.

San Marcos City Atty. Warren Diven said confusion focused on a portion of the court’s ruling that stated that “to allow the resource recovery project approval to stand would be to sanction piecemeal environmental review, allowing one aspect of a project to be approved before the environmental consequences of the larger project (the entire general plan amendment) are reviewed.”

Diven said it was unclear to him whether that meant North County Resource Recovery Associates would have to return to square one in seeking permission from city, county, state and federal agencies to build the plant.

He said he was considering asking the court to clarify itself on that matter or to simply drop that language from the opinion.

But opponents of the project said they hoped the court’s direction was indeed that the approval process must be repeated, thereby breathing new life at the 11th hour in their attempts to block the plant’s construction.

The pending appellate court ruling literally had been the last roadblock to the plant’s construction.

“This ruling has the potential of nullifying the special use permit and the EIR for the plant that already have been done,” said the Rev. Stephen Isaac, president of Christward Ministry, a 640-acre religious retreat 1 1/2 miles from the plant site. Christward Ministry mounted the legal challenge of the city’s general plan.

“If everything has to start over, or if we at least will have an environmental impact report on the general plan amendment, we will be able to present new information on dioxins and other contaminants, and discuss other, newer alternatives to the plant,” Isaac said.

Vista Superior Court Judge Robert J. O’Neill last year had rejected the retreat’s lawsuit on the grounds that the new general plan was not significantly different from the previous one.

But the appellate judges disagreed, saying there were significant differences between the two operations that needed to be addressed in an environmental impact report.

“The (general plan) amendment does not, as the city contends, merely ratify an existing use for which an EIR had been prepared in the past, but authorizes potential new uses at the site,” the judges wrote in their 26-page ruling.

The fact that an EIR would need to be prepared for the specific trash plant did not relieve the city of the obligation of preparing an EIR for the general plan itself, the court said.

Wes Peltzer, attorney for North County Resource Recovery Associates, said Friday that it was unclear to him “whether the opinion has any affect on our permit. That’s what we’re looking into, to see what we may need to do.”

“This is not good news, but it may not be so bad,” he said.

Pam Thornton, a project manager for Resource Recovery Associates, called the ruling “a little frustrating, but we’ll get through it. The hysteria-mongers are costing the taxpayers an awful lot of money.”

But Isaac said the decision gives opponents of the project a whole new opportunity to raise their concerns, including traffic impact and the effect of pollutants that will be emitted from a 300-foot-high smokestack.

When the City of San Marcos approved the project last year, it included a list of 111 operating conditions and established an environmental review board to monitor the plant’s operations.

Isaac said that since last year’s public hearings, new information has been learned about how dioxins are produced through incineration.

Furthermore, he said, “There are new alternatives (to turning trash into other resources) that we have only recently learned about, including converting it to paper pulp or converting it to aggregate for building blocks and roadbeds, which is what’s being done in Switzerland. It’s environmentally sound and costs only one-third as much.”

San Marcos Mayor Lionel Burton said he was bothered by the court’s decision.

“The whole approval process has been proper, and the first judge agreed with us,” he said. “This thing has been so scrutinized--we’ve dotted every i and crossed every t because we knew we would be challenged at every turn.

“But this world is so crazy, when it comes to law, anything is possible.”

North County Resource Recovery Associates had hoped to begin construction on the project this summer, having already sold $180 million in revenue bonds and having lined up private investors to finance the balance, Peltzer said.