City ban on trash facility overruled Judge's decision on incinerator is blow to environmentalists

January 16, 1996|By JoAnna Daemmrich | JoAnna Daemmrich,SUN STAFF

A judge has struck down Baltimore's incinerator moratorium, dealing a victory to construction magnate Willard J. Hackerman in his long quest to build a $300 million trash-burning plant in place of the defunct Pulaski Incinerator.

In a ruling that puts Mr. Hackerman's plans back on the front burner, Baltimore County Circuit Judge J. William Hinkel granted PTC his request and overturned the city's ban on incinerator construction earlier this month.

Mr. Hackerman, the politically connected businessman who owns the Pulaski Highway incinerator, challenged the moratorium in court after repeated setbacks in his efforts to replace the outmoded plant with a new one.

He was out of town yesterday and could not be reached for comment.

The judge's decision upset environmentalists and community leaders who had complained for years about pollution from the Pulaski Incinerator and vehemently oppose another trash-burning plant in East Baltimore.

As worried environmental activists vowed to fight to keep the moratorium, Mayor Kurt L. Schmoke said yesterday that he would appeal the ruling to the state's second-highest court.

"We think the moratorium was sound public policy," Mr. Schmoke said. Citing the city's legal battle to prohibit billboards advertising liquor and cigarettes, he added: "We will defend this policy with the same vigor."

Saying his group would do all it could to support the appeal, Daniel L. Jerrems, head of the Baltimore Recycling Coalition, said, "Even with state-of-the-art pollution control technology, incinerators emit tons of carcinogens and other toxins into the air every single day. We already have enough pollution in Baltimore."

The city will ask to keep the incinerator ban in place while it pursues an appeal in the Maryland Court of Special Appeals, said City Solicitor Neal M. Janey.

Mr. Hackerman sued the city in June in Baltimore County because that is where his company is based. He went to court after failing to persuade the Baltimore City Council to lift the five-year moratorium on incinerator construction enacted in 1992.

The council adopted the ban, which would automatically be renewed next year unless the city achieved high recycling standards, to halt Mr. Hackerman's plans for a new trash-burning plant. In 1994, the Schmoke administration backed a bill to prematurely end the ban -- whose chief beneficiary would have been Mr. Hackerman -- but the council never took action and Mr. Schmoke dropped it.

Ruling in Mr. Hackerman's favor, Judge Hinkel concluded that the moratorium improperly usurps the state's authority to regulate incinerator construction and is pre-empted by state law.

"There is no evidence that cities have traditionally been allowed to ban the construction of waste-disposal facilities," he wrote Dec. 21 in a 14-page opinion. He also noted the Maryland Department of Environment "has not recognized local authority to take action," and "a two-tiered regulatory process would engender chaos."

The judge overturned the moratorium in an order dated Jan. 5. But environmentalists following the case did not learn of his order until the end of last week because courts were closed in the snowstorm. Mr. Janey was trying to get a copy of the order yesterday, a holiday during which courts again were closed.

Mr. Hackerman bought the Pulaski Highway incinerator from the city in 1981. The plant closed in August; the cost of retrofitting it to meet environmental standards then would have been about $60 million.

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