Stump dump owner can't be singled out, judge says All mulchers must face same orders

February 23, 1993|By Sheridan Lyons | Sheridan Lyons,Staff Writer

A Baltimore County Circuit judge ruled yesterday that state and local officials can't single out James F. Jett and shut down his stump-mulching operation just "because his attitude was rotten."

If it wants to shut down Mr. Jett, whose burning stump dump polluted Baltimore's air for 18 months, the state must stop all stump-mulchers while it processes their applications for permits under a 1991 law enacted in response to the fire, Judge James T. Smith Jr. said.

The stump dump fire in Granite began in February 1991 and is still smoldering underground. The smoke from the burning stumps, which spread over much of the area, finally vanished after the Maryland Environmental Service (MES) covered the five-acre site with 100,000 cubic yards of dirt at a cost of $700,000.

Yesterday, the state sought an injunction against Mr. Jett and his Patapsco Valley Farms Inc. because he doesn't have a permit to handle natural wood waste. Baltimore County wanted him found in contempt of court on similar grounds.

But the judge granted the request by Mr. Jett's attorney, Michael P. Tanczyn, to deny both injunctions on the grounds that Mr. Jett was being denied equal protection under the Constitution.

The state still has Mr. Jett's application for a permit to consider, and its request for a permanent injunction against the operation remains before Judge Smith, Assistant Attorney General Kathy Kinsey said.

As the judge's reasoning became apparent, Assistant County Attorney Thomas K. Farley complained that Mr. Jett had "thumbed his nose" at everybody who has attempted to regulate his operation.

"Are you saying because his attitude was rotten, that even though he may be right, the order should be issued?" the judge asked.

He said that if the government wants to shut down all wood waste operators while it considers their application, that's fine.

"But they cannot unevenly apply the law by policy of the government."

The policy that raised the constitutional issue was outlined by the state's first witness, Barry J. Schmidt, administrator of the Department of the Environment's Solid Waste Program.

Because his department took so long to formulate regulations and print application forms, he said, he set a policy allowing everyone who was in business before the wood-waste law took effect last July to keep operating while they applied.

Everyone except Mr. Jett, he admitted -- including a few who had been reprimanded or cited by field inspectors.

When the forms finally were ready last November, Mr. Schmidt said, his department sent out a mass mailing to everyone known to be affected by the law. Everyone except Mr. Jett, he said -- explaining that he thought the court actions had halted Mr. Jett's business.

After the judge's ruling, Mr. Jett said: "As long as I'm treated like everybody else, I'm happy."

"It is a black day in Granite," said Rosalyn Roddy, president of the Greater Patapsco Community Association, who faulted the state for allowing Mr. Jett the constitutional defense.

"I never cease to be amazed that Mr. Jett is always portrayed as the injured party, [but] it's the citizens of Baltimore County who have paid through the nose to put his fire out," she added. Ms. Roddy said she understood the judge's ruling. "If the state wanted teeth in the permitting process, they can't tacitly say some can and some can't."

Under a ruling Feb. 2 by Judge Smith, Mr. Jett may accept tree stumps and grind them, but this operation is limited to two areas outside the dump and the area where the fire still smolders underground.

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