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Baltimore in talks with incinerator firm, could settle lawsuit over city’s authority to cut air pollution

The SB7 Coalition Inc. holds a rally to shutdown the BRESCO trash incinerator and advocate for building a zero waste infrastructure.

A contentious legal fight over a Baltimore ordinance that was intended to force waste incinerators in the city to reduce their air pollution could end in a settlement agreement, angering environmental activists who don’t support any deal that would allow the facilities to continue burning trash in their neighborhoods.

At the heart of the case is whether the city has the authority to enforce the Baltimore Clean Air Act, passed by the City Council last year. It would require two large, private waste incinerators to dramatically reduce their output of pollutants.

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A federal judge ruled in March in favor of the incinerator companies’ lawsuit, saying Baltimore’s law is invalid as it “second guesses” a complex system of state and federal environmental regulations. The city’s legal team filed a request for the 4th U.S. Circuit Court of Appeals to reconsider that decision.

But documents filed to the court this month note that “the parties have made significant progress in settlement negotiations and are optimistic about reaching a settlement.”

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Environmental activists are concerned an agreement could mean the city plans to continue using Wheelabrator Technologies, whose Southwest Baltimore facility processes household trash from across the region and produces steam and energy. Also involved in the lawsuit is Curtis Bay Energy, a medical waste incinerator near the city’s southern border.

The city’s contract to supply waste to the Wheelabrator facility expires at the end of 2021. Advocates hope that will mark the closing of the plant which, with its towering smokestack next to Interstate 95, has long pumped out pollutants like nitrogen oxide, lead and mercury. They say the facility is hurting the community’s health, and the city should direct its resources to carrying out a “Zero Waste Plan” that calls for expanded recycling and composting, among other initiatives.

“We cannot let this contract be extended because it would be very detrimental to the zero waste future we’ve all been trying to create in the city,” said Shashawnda Campbell of the South Baltimore Community Land Trust.

Campbell joined a couple dozen protesters Wednesday afternoon in forming a human wall outside of the Wheelabrator facility, blocking traffic to keep trash trucks from freely moving in or out for more than an hour.

“No deal,” they chanted. “We must appeal!”

City Solicitor Dana Moore said in an interview Monday that the two sides are far from any settlement, and she’s not giving up on an appeal, either.

But extending the incinerator’s contract is on the table. A part of the discussions, she said, has been whether the company can “make changes at Wheelabrator to get to the levels of lower emissions that the City Council mandated in their legislation.”

The city’s ordinance, which was set to take effect in 2022, would have forced incinerators operating in the city to drastically reduce their output of pollutants, and to measure those emissions in real time.

Upon the law’s passage, Wheelabrator officials said it would be impossible to retrofit the plant to meet the new standards by that time. Officials with Curtis Bay Energy could not be reached for comment. The city’s discussions have mainly been with counsel for Wheelabrator.

Facility manager Austin Pritchard, speaking outside Wheelabrator during Wednesday’s protest, said he admires the group’s goal of getting to “zero waste.” But he said he knows from experience what it takes to process up to 2,250 tons of trash every day.

“Where does that go? It’s a really complex situation,” he said.

Moore said Baltimore is navigating a “very narrow path,” in which it doesn’t feel it has many options for what to do with the region’s trash. The city-owned Quarantine Road landfill is nearing capacity. Counties, including Baltimore, Howard and Anne Arundel, rely on the incinerator, too.

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It still may be, Moore said, that the city declines to extend the contract. It also may be that the city renews the deal, but requires the company to commit to lower emissions.

“We’d use that time to move the city toward the ‘zero waste’ goal expressed in the legislation,” Moore said. “It doesn’t happen overnight. We can’t shut down what we have until we have a viable option and we have to build that option.”

She said the legal team has been pressing the company on how to achieve emissions as low as possible with as little expense to the city of Baltimore, which is already confronting a tight budget due to the coronavirus pandemic.

“It would be irresponsible to say we’re going to extend contract and not demand more of them,” Moore said.

Democratic Mayor Bernard C. “Jack” Young, who will leave office this year, and City Council President Brandon Scott, the Democratic nominee to replace him, have not been part of these discussions, the solicitor said.

“When discussions are a little more ripe, I would present it to my clients,” Moore said. “We have a ways to go before I’m ready to say, ‘This is a good compromise that Baltimore should embrace.‘”

Scott said during the mayoral campaign that he’s committed to breaking the contract in 2021.

Opening briefs from both parties are due in October, according to court filings.

At this moment, Moore said: “We’re not ready to settle, we’re not ready to drop the appeal and we’re not ready to stop.”

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