Court Upholds State's Authority On Rubble Fill Approvals

Council Erred With Gravel Hill Action

February 02, 1992|By Carol L. Bowers and Norris P. West | Carol L. Bowers and Norris P. West,Staff writers

The Maryland Court of Special Appeals ruled Wednesday that the Harford County Council exceeded its authority in 1990 when it removed the proposed Gravel Hill Road asbestos and rubble fill from its solid waste management plan.

A three-judge panel of the state's second-highest court upheld a ruling by Harford County Circuit Judge Cypert O. Whitfill that said the authority to approve landfill sites rested withthe Maryland Department of the Environment.

The decision was a victory for Maryland Reclamation Associates Inc., a company headed by Richard D. Schafer of Churchville that has been trying to get approval for the landfill near the community of Webster outside Havre de Grace since September 1989.

Maryland Reclamation, whose project had initially been approved by the council, sued the county government and the council in the spring of 1990 after the council, on a second vote, rejected the project.

The suit sought to have the second vote overturned because inclusion in the county's Solid Waste Management Plan is a prerequisite to receiving an operating permit from MDE. The county dropped out of the suit after it lost, but the council chose to appeal.

"I couldn't be happier," said Schafer, who estimated that he spent about $1 million on legal and othercosts in his effort to start the project. "My plans are to move forward with my project."

John Goheen, an MDE spokesman, said the ruling "has no impact on our permitting process." Goheen said the state'sindependent review of Maryland Reclamation's application for an operating permit was nearly complete.

The ruling was the second defeatof a resolution passed by the council in May 1990 that removed the landfill from the county's 10-year waste disposal plan. The resolutionwas based, in part, on concerns the facility would affect the water supply of neighboring properties.

In the appellate court opinion, Judge Paul E. Alpert, noted that state law gives the Maryland Department of the Environment authority to approve solid waste management plans submitted by local jurisdictions.

He said counties have had a lesser role since a state law -- enacted in July 1988 -- stripped most of their authority in the permit-approval process.

"In toto, these provisions indicate MDE's strong control over county plans, including its ability to modify or veto plans or amendments of which it does not approve," Alpert wrote. He said that in cases where MDE approval of a landfill is pending, "the county may use its plan, but it doesso at its own risk."

The court also stated local governments might not be willing to approve necessary projects if they had authority to issue permits because they would be influenced by political pressure.

Randall Lutz, one of Maryland Reclamation's lawyers, said, "Itwas a tremendous victory for the Maryland Department of the Environment, even though it was not a party to the case, because it clearly establishes the state's authority over the permit process for landfills."

"This will have the state act as a buffer to local, irrationalopposition to things that are necessary, like landfills."

However, at least two council members, Joanne S. Parrott, R-District B, and Barry T. Glassman, R-District D, said they want the seven-member council to petition the Court of Appeals for a final answer in the case.

The council has 30 days to appeal the Court of Special Appeals' ruling.

"I feel we have a lot more battles to fight," said Glassman,whose district includes the proposed rubble fill site. "There's no doubt about it, this is a setback, but we still have a lot of fight left in us."

The court case that could provide a definitive answer to the question of whether Maryland Reclamation opens its proposed rubble fill, however, is a related case with a question now pending before the Court of Special Appeals.

In that case, Maryland Reclamation is suing the county and the council over a zoning law approved lastMarch, claiming the law was intended to disrupt Maryland Reclamation's efforts to get a state permit for the Gravel Hill Road landfill.

The law requires rubble landfill sites to be at least 100 acres and1,000 feet away from the nearest building.

Maryland Reclamation'ssite is 68 acres and would not meet the distance requirement.

Thesuit also challenges the council's June 11, 1991 vote on a resolution removing the Gravel Hill Road site from the county's Solid Waste Management Plan a second time because it didn't meet the new zoning requirements.

Whitfill, who also heard that case, issued an injunction preventing the county from enforcing the March and June actions; the council and county have appealed that decision.

Arguments beforethe Court of Special Appeals have not been scheduled.

The crucialquestion, said Emory Plitt, county attorney, is wheth

er MarylandReclamation would be exempt from the 1991 zoning requirements because it started the state permit process in 1990.

In a similar case, involving the proposed expansion of Spencer's Sand & Gravel Inc. in Abingdon, county administrators and lawyers ruled the new zoning regulations did not apply. Spencer's, which operates a 55-acre rubble landfill, requested permission to expand a year ago.

"At the time the rubble fill was a permitted use in just about every zoning category,"said Plitt. "But at this point we don't know whether ultimately Maryland Reclamation will be able to operate even if they get a permit. We won't know until the second case is settled."

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