Waste Incinerator Challenge Goes To Appeals Court

March 15, 1991|By Gary Gately | Gary Gately,Staff writer

The emotional battle over a $26 million Hawkins Point medical waste incinerator now moves to Maryland's highest court.

The Maryland Court of Appeals' decision to review the case comes 17 months after a Circuit Court judge dismissed an environmental group's challenge of state permits needed to operate the incinerator.

Acting on an appeal by the incinerator's developer, Medical WasteAssociates, the state's highest court agreed to review a Court of Special Appeals ruling. That court, the state's second-highest, held last November that the Maryland Waste Coalition, a North County-based environmental group, could sue under the Maryland Environmental Standing Act.

The Maryland Waste Coalition's effort to stop operation ofthe incinerator hinges on the Court of Appeals' finding the group has legal standing and sending the case back to the Circuit Court.

For more than two years, the incinerator, completed in October just across Anne Arundel's northeastern border in Baltimore, has been the object of fierce opposition from environmentalists and nearby residents.

Consumat Systems Inc. of Richmond, Va., built and operates the plant and began "test burns" there in December. The incinerator is scheduled to begin burning about 85 tons of medical waste from 20 area hospitals daily in June.

Yesterday, attorneys for both Medical Waste and the coalition welcomed the high court's decision to hear the case, each side claiming the move would improve its chances of prevailing.

"Once we win on the standing issue and get back into Circuit Court, we're going to shut that incinerator down," said James Aist, anattorney representing the Maryland Waste Coalition.

While MedicalWaste won the right to argue the legal standing issue before the Court of Appeals, the environmental group, too, won what it sought in legal papers filed in response to the developer's appeal.

The group convinced the justices to review its legal standing based not only onthe 12-year-old state statute but also on other grounds rejected by the second-highest court, including common law precedents and federalstatutes.

Jervis S. Finney, an attorney representing Medical Waste Associates, predicted the appeals court would affirm the company's right to operate the incinerator.

"Medical Waste is entirely comfortable with the consideration being granted by the Court of Appeals,"Finney said. "We know our prospects are quite good because a democracy goes by the rule of law, and we know we've acted within the law."

The Court of Appeals could have refused to hear the case, lettingstand the Court of Special Appeals decision. Neither party in the incinerator case had "absolute right" to be heard by the high court, asthe law guarantees in some criminal cases.

Medical Waste Associates must file legal briefs by April 15, and the Maryland Waste Coalition must do so within two months following that.

Meantime, Mary Rosso, the president of the coalition, an alliance of northern Arundel and South Baltimore residents, said her group intends to press ahead in its fight by lobbying Baltimore Mayor Kurt L. Schmoke.

"We're telling the mayor we're tired of the lies, and we want them shut down, period," Rosso said.

Rosso repeated her assertion that the incinerator poses a threat to the health of nearby residents. And she said recent revelations that the incinerator had accepted medical waste from other states for test burns prove the company has deceived residents.

A week ago, Mayor Schmoke ordered the incinerator to stop accepting the waste from other states because, he said, doing so violates a city zoning ordinance. City officials said the incinerator was importing about 30 tons of medical waste a day from out of state.

Medical Waste officials have said they are testing the new incinerator with hospital refuse from Pennsylvania, New Jersey and New York becausethey cannot get enough locally.

Medical Waste officials, however,said burning out-of-state waste did not violate the city ordinance.

In the Maryland Waste Coalition's initial lawsuit, Circuit Court Judge Thomas E. Noel ruled in October 1989 that "third parties" -- in this case, neighbors of the incinerator -- lacked the legal right to challenge air-quality permits issued by the state Department of the Environment.

In issuing the permits, state officials said the Hawkins Point incinerator would improve overall air quality by replacing smaller regional incinerators subject to fewer pollution-control regulations.

But the Maryland Waste Coalition, noting the Hawkins Point-Curtis Bay area already violates federal pollution standards, calledthe incinerator a "threat to the public health and well-being" of nearby residents. The coalition also has demanded that the state conduct environmental impact studies before allowing the incinerator to operate.

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