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March 30, 2020
On March 27, the U.S. District Court for the District of Maryland tossed out air pollution limits that the city of Baltimore set last year, agreeing with the city’s incinerator companies and other co-plaintiffs including the National Waste & Recycling Association (NWRA) that the Baltimore Clean Air Act is “fundamentally flawed” and in conflict with existing federal and state laws and regulations.
The act, which was unanimously passed by the City Council in February 2019 and signed into law by Baltimore Mayor Catherine Pugh in March 2019, mandated real-time monitoring of 20 pollutants at the city’s two waste incinerators by September 2020 and required that they meet the strongest standards in North America for four major air pollutants: mercury and sulfur dioxides by September 2020 and dioxins and nitrogen oxides (NOx) by January 1, 2022.
The city’s incinerators—Wheelabrator Baltimore, a 2,250-ton-per-day trash incinerator; and Curtis Bay Medical Waste Services, the nation’s largest medical waste incinerator, which accepts waste from 20 states and Canada—could have faced closure due to the cost of changes needed at the incinerators in order to meet the act’s tighter restrictions on pollutants.
Wheelabrator Technologies Senior Vice President and General Counsel Michael O’Friel issued the following statement regarding the court ruling:
“We are pleased with the court’s ruling, which reflects our position that the Baltimore ordinance conflicts with both state and federal regulatory authority. As we have argued from the time this ordinance was first proposed—and as the court has made clear in its ruling—the city legislation is fundamentally flawed. As the court pointed out in its opinion, emissions standards are established by the United States Environmental Protection Agency ‘after a lengthy public rulemaking process and enforced through intricate permitting systems administered by the states.’ The court’s opinion goes on to specifically note: ‘Allowing a locality to undermine this regulatory scheme by substituting its judgment in place of decisions by the federal and state government is not consistent with the goals of (the federal Clean Air Act) and its corresponding state statutes.’ We appreciate the court’s detailed review of this matter and look forward to continuing to provide the essential service of responsible waste management in the Baltimore area by converting everyday waste into clean, renewable energy.”
NWRA also responded to the court ruling, stating:
“NWRA is pleased with the court’s decision. We agree with Judge Russell’s view that state and federal regulations already in place protect the public’s health and that allowing the Baltimore City Council to replace those state and federal regulations with its own ordinance is not in alignment with the spirit of those existing state and federal regulations,” said NWRA President and CEO Darrell Smith in a statement.
“We thank Judge Russell for issuing his ruling on the key preemption issues in an expeditious manner given the September 2020 deadlines for implementation of the Baltimore Clean Air Act that would have forced the closure, at least temporarily, of the Wheelabrator Baltimore facility,” stated Jim Riley, NWRA’s chief counsel and senior vice president for government affairs, in a statement. “Baltimore’s attempt to do this disregarded nearly 50 years of federal and state primacy in directing a uniform system to regulate air pollution and imposed unprecedented emission limits that lacked scientific, technical or factual bases.”
The emission limits and other requirements of the Baltimore ordinance directly conflicted with the emission limits and provisions in the Federal Clean Air Act, EPA’s regulations and the Title V operating permits granted to Wheelabrator and Curtis Bay. Additionally, the ordinance criminalized conduct allowed under federal law and, as the ordinance’s sponsor admitted, was passed with the intent to shut down these facilities under the guise of regulation.
The Baltimore Sun has more information:
A federal judge ruled Friday that a Baltimore air quality ordinance passed last year is invalid, upholding complaints from a city trash incinerator that the law forcing it to dramatically reduce its emissions is “fundamentally flawed.”
Wheelabrator Technologies, whose Southwest Baltimore incinerator receives household trash from across the Baltimore region, had said the city Clean Air Act’s limits on pollutants including nitrogen oxides, sulfur dioxide and mercury would be impossible to meet. And it argued the city didn’t have authority over its emissions, which already are regulated under federal and state law.
U.S. District Court Judge George L. Russell III agreed, saying the city ordinance “second guesses” a complex regulatory scheme already in place and subject to lengthy public review. Allowing a local government to step over federal and state decisions would “undermine” the federal Clean Air Act, the landmark legislation that has served as the framework for policies addressing air pollution for 50 years.
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