A Hawkins Point incinerator should be shut down for violating zoninglaws by accepting out-of-state medical waste, a Baltimore zoning board ruled Monday.

The Board of Municipal and Zoning Appeals denied Medical Waste Associates a permit to operate the $26 million plant until the company complies with a zoning ordinance that limits it to burning hospital refuse from the city, Anne Arundel, Baltimore and Harford counties.

Jervis Finney, an attorney for Medical Waste, argued at a June 4 hearing that the limitation is invalid because it restricts interstate commerce. Medical Waste has asked a federal court to declare the rule unconstitutional.

Federal and state air pollution laws also pre-empt the city zoning ordinance, Finney said. The incinerator, just across the county line in the 3200 block of Hawkins Point Road, received its final environmental approval from the state May 16.

Yesterday, Finney said he had not yet seen the zoning board's decision. But,he said, the June 4 hearing was handled improperly and Medical Wastehas filed a new appeal.

Baltimore Mayor Kurt Schmoke and the CityCouncil are expected to sue to enforce the geographic limitation, part of the zoning ordinance they passed in 1989 allowing Medical Wasteto build in South Baltimore. City officials said Medical Waste lobbied heavily in favor of the ordinance.

A city inspector ruled in March that Medical Waste had disregarded the restriction when it began accepting out-of-state wastes to test the incinerator, capable of burning 150 tons per day.

"We didn't want that facility to become theEast Coast incinerator for medical waste," said acting-City Health Commissioner Elias Dorsey. "The city will countersue."

Dorsey also has asked the state Department of the Environment to intercede.

But DOE spokesman Michael Sullivan said his agency can do little.

"Our permit doesn't exempt them from any city requirements," Sullivan said. But, he added, "we cannot enforce those regulations that are notours."

North County and South Baltimore residents who have foughtto stop the incinerator's construction for the last two years are now pressing the City Council to repeal the 1989 ordinance that allowedthe incinerator's construction.

"Regardless what the court says, we should repeal the ordinance and shut it down for good," said Mary Rosso, president of the Maryland Waste Coalition, a private environmental group fighting the incinerator on behalf of city and county residents.

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