Groups sue Md. over air pollution

Activists say state is falling short on new limits, permits

January 23, 2009|By Timothy B. Wheeler | Timothy B. Wheeler,tim.wheeler@baltsun.com

Accusing the state of failing to control industrial air pollution, environmental groups went to court yesterday to force the Maryland Department of the Environment to set new emission limits for a Baltimore trash incinerator.

The groups also threatened to sue Atlanta-based Mirant for allegedly spewing pollutants from one of its power plants in suburban Washington. The plant has been operating for years without a permit.

Activists said the actions were prompted by their frustration with the O'Malley administration for foot-dragging in dealing with pollution violations at some of the state's largest factories and power plants.

"We've just had it," said Eric Schaeffer, a former federal environmental regulator who now leads a Washington-based group, the Environmental Integrity Project. He said the two cases are part of a pattern in Maryland in which power plants and factories have been allowed to operate without pollution permits and up-to-date emission limits.

The BRESCO waste-to-energy incinerator in South Baltimore, which burns trash from Baltimore and Baltimore County, has been allowed to operate on an expired air pollution permit for more than a year, Schaeffer said. The state drafted but has not issued a new permit for the incinerator, operated by Wheelabrator Technologies. Activists say the permit would let the facility emit more pollution than the law allows.

Joining Schaeffer's group in filing the lawsuit in Baltimore Circuit Court were the Baltimore Harbor Waterkeeper and Clean Water Action, as well as a Crofton resident who contends that the air he breathes is fouled by the incinerator's emissions. The Chesapeake Climate Action Network joined in the letter warning Mirant that it would be sued.

The vast majority of Marylanders live in communities where air quality is poor, Schaeffer noted. The Baltimore and Washington metro areas, and Cecil and Washington counties, experience unhealthful levels of ground-level ozone or fine-particle pollution, or both, at certain times of year, according to federal data. Smog can cause breathing difficulties and aggravate asthma and chronic bronchitis. Particle pollution also can cause respiratory problems and has been linked to heart attacks and premature deaths among people with lung and heart disease.

The activists said they had no evidence that the Baltimore incinerator is violating pollution limits, but monitoring data suggests that it might be emitting excessive amounts of nitrogen oxide, a smog-forming pollutant. The permit delay might be obscuring more fundamental problems, they contend.

"You can't really have effective enforcement and compliance with the law unless and until you have effective permitting," said Jane F. Barrett of the environmental law program at the University of Maryland law school.

According to the groups, the Chalk Point power plant in Prince George's County has been burning dirty fuel oil without installing equipment to control particle pollution as required by state and federal law. The plant burned more than 187 million gallons of the oil from 2005 through mid-2007, the groups say, likely spewing more than 1,000 tons of fine particles into the air. They contend that the plant has committed 1,400 violations of the federal Clean Air Act.

Schaeffer said he and others have been pressing the O'Malley administration to address these and other cases of industrial and power plant pollution for two years but have gotten little or no response. The groups asked the U.S. Environmental Protection Agency last year to make Maryland tighten its oversight of air pollution or take away the state's authority to regulate it. An EPA spokeswoman said federal officials are investigating the complaints.

The problems are puzzling and troubling, Schaeffer said, because Maryland has taken significant steps to curb air pollution, requiring reductions from power plants with the Healthy Air Act and pushing for cleaner cars by embracing limits set by California.

Mirant spokeswoman Misty Allen said that the environmental groups' claims are "baseless" and that the Chalk Point power plant is in compliance with state emissions standards. The plant burns "residual" fuel oil and does not have the pollution control equipment the groups say is needed, but Allen said the plant has been operating under a consent agreement with the state for the past two years that covers that.

Wheelabrator spokesman Frank Ferraro said his company's incinerator is in compliance with state laws and regulations.

Tad Aburn, the state's chief air pollution regulator, acknowledged that his agency is late in issuing the new Baltimore incinerator permit but said it was delayed while trying to respond to complaints raised by activists. He said the permit would be issued within two weeks. He declined to discuss the Mirant plant, except to say that the agency took enforcement action against it two years ago and has asked the Maryland attorney general's office to consider further action.

He defended his agency's record, saying the state is seen as being aggressive in enforcing pollution laws.

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