Trash incinerator owners sue Baltimore, seeking to invalidate ordinance restricting air pollution

The owners of two Baltimore waste incinerators filed a federal lawsuit against the city government Tuesday seeking to invalidate an ordinance passed in February requiring them to drastically reduce the air pollution they emit.

The companies say the policy is “arbitrary” and violates federal and state law regulating air quality.


“Under federal and state law, the City does not have the authority to infringe on an area — air quality — already fully protected by federal and state laws, regulations, permits, and enforcement programs,” they said in a statement.

Those federal and state policies are based on scientific studies, but the companies argue the city ordinance isn’t. The ordinance also requires “emissions monitoring technology that does not exist,” something the companies called “unreasonable.”

The Baltimore City Council on Monday approved a bill applying stringent emissions limits on the city’s biggest source of industrial air pollution, a step that could end the burning of trash across the region without a plan on how to dispose of waste that is currently incinerated.

The lawsuit was filed in U.S. District Court, seeking immediate and permanent injunctions against the city’s enforcement of the ordinance.

The City Council unanimously passed the ordinance citing public health concerns, targeting the Wheelabrator Baltimore incinerator in Southwest Baltimore and Curtis Bay Energy, a medical waste incinerator in southern Baltimore that is the largest of its kind in the country. The facilities are two of the city’s largest sources of industrial air pollution, including nitrogen oxides, sulfur dioxide, mercury and other pollutants.

The Wheelabrator incinerator also disposes of much of the region’s household trash. The New Hampshire-based company has said it could not comply with the city ordinance and could be forced to close because of it, sending the trash to landfills, instead.

Baltimore City Solicitor Andre Davis said the companies provided him with a courtesy copy of the lawsuit Tuesday but that he had not yet reviewed it.


“I anticipated they would be filing a lawsuit,” Davis said. “We will respond in court in due course.”

A state renewable energy program is sending millions of dollars of ratepayer subsidies to Baltimore's biggest polluter, the Wheelabrator incinerator. Community activists in South Baltimore are trying to increase recycling to essentially put the incinerator out of business.

City lawyers previously said they think the city has clear authority to enact the ordinance, which requires incinerators to significantly reduce and continuously monitor emissions starting in 2022.

Proponents of the clean air measure welcomed the lawsuit, and said they expect it to lose in court.

“This will help set the precedent we need to encourage other communities to do similar things,” said Mike Ewall, executive director of the Energy Justice Network.

Countering the companies’ arguments, proponents say the air quality standards being established aren’t arbitrary but are based on the emissions of two recently built trash incinerators in Florida and Canada. They also say the monitoring technology that will be required does exist, has been tested by the Environmental Protection Agency, but is more prevalent in Europe than in the United States.

“It is established; it’s just not typical here,” Ewall said.

City Councilman Ed Reisinger, who introduced the ordinance, said he stands by it. Reisinger said he pushed the legislation based on advice from a city lawyer who said it would stand up to legal challenge.

“He said, ‘If they want to sue, let them sue,’” Reisinger said. “That’s what I went by. Anybody can sue. Let them take us to court.”

Joining the companies as plaintiffs in the lawsuit: the groups the Energy Recovery Council and the National Waste and Recycling Association, as well as Baltimore company TMS Hauling.

After the Baltimore City Council passed clean air legislation Monday that could lead a large trash incinerator to shut down, officials in the city and surrounding counties began considering their alternatives for if and when that consequence comes to pass.

The Wheelabrator incinerator burns more than 700,000 tons of household trash every year, slightly more than half of it collected in Baltimore and much of the rest from Baltimore County.

Curtis Bay Energy disposes of medical waste from across the country that cannot safely be thrown into landfills.

The national waste and recycling trade group that joined in filing the lawsuit called both facilities “an indispensable component of Baltimore’s solid waste management plan.”

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