Landfill group cheered by attorney's opinion

June 08, 1994|By John Rivera | John Rivera,Sun Staff Writer

Anne Arundel County complied with its own code requiring a 1,000-foot buffer between the Millersville landfill and nearby residences when the original operating permit was issued in 1975, says an opinion issued yesterday by the county attorney.

Houses that are closer to the landfill than 1,000 feet were either built after the permit was issued or the county must have invoked an "unusual circumstances" clause in the law that permits a smaller buffer, Judson P. Garrett Jr., the county attorney, said in an 11-page opinion.

George Tabak, who chairs the Millersville Landfill Advisory Committee, said he sees the opinion as a victory for residents because the county admits it is bound by the regulation requiring a 1,000-foot buffer. County officials have previously cited a section of the county code stating that all it needed was a 500-foot buffer between the actual landfill operation and the nearest house.

Now Mr. Tabak sees an opportunity to require the county to abide by the 1,000-foot buffer requirement when it seeks a new operating permit from the Maryland Department of the Environment this summer for construction of the ninth and final cell in the landfill. A public hearing on the permit has tentatively been scheduled for August.

"With Cell 9 in particular, I think it's a win situation," he told committee members last night during their monthly meeting. "I think we've got a shot at it."

The committee, a group of local residents appointed by County Executive Robert R. Neall, is seeking to increase the buffer and reduce the size of the landfill's last section.

The seven-member panel, which nearly disbanded in frustration in January over what members said was a lack of cooperation from county officials, asked for Mr. Garrett's opinion as a necessary first step before seeking the opinion of the state's attorney general.

But Mr. Tabak said he thinks the second opinion may be unnecessary. If the committee can convince the Department of the Environment that the county is reopening its original permit for the landfill by applying for a new operating permit for Cell 9, Mr. Tabak thinks residents can convince state officials to force the county to abide by the wider buffer.

Mr. Garrett said the county's application to the state deals only with operation of Cell 9, not its location. "Permission for Cell 9 was given with the original permit, and this is just the implementation of that 19 years later," he said.

The opinion notes that the law allows less than a 1,000-foot buffer if "unusual circumstances make a closer location both desirable and acceptable."

Those circumstances must be fully explained in an engineering report accompanying the permit application.

County officials admitted yesterday they cannot find any documentation that proves they either complied with the 1,000-foot setback requirement or provided the explanation.

Mr. Garrett said the county's application for an operating permit refers to "attachments" and an engineering report, none of which can be located. But because the county was required to show compliance with the setback requirement in the application -- and because that application was approved -- there is a legal presumption that the approval was valid.

"It's a properly issued permit on its face," he said.

Mr. Garrett added that it is unlikely any legal challenge to the original permit would succeed because the three-year statute of limitations has expired.

The code provision that prohibits depositing trash within 500 feet of a public road or any building does not apply to the county, Mr. Garrett wrote, because trash at the landfill is not deposited on the ground but buried.

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