Baltimore Oversteps Authority to Regulate Incinerators out of Business, Suit Says

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By Ken McEntee

In early April, Maryland’s General Assembly passed the Clean Energy Jobs Act, which mandates that half of the state’s power come from renewable sources by 2030. Over the objections of some environmental activists and others, the act, which became law without the governor’s signature in May, retained trash incineration as an eligible “Tier 1” source of renewable power.

Meanwhile, a month before the Clean Energy Jobs Act passed the General Assembly, then Baltimore Mayor Catherine Pugh signed the Baltimore Clean Air Act, which, according to a subsequent lawsuit, threatens to regulate the city’s two incinerators – including a medical waste facility - out of business.

“When the (Clean Energy Jobs Act) was written, we didn’t know Baltimore was going to do what they did,” said Frederica Struse, spokesperson for State Sen. Brian Feldman (D-Montgomery), sponsor of Maryland’s Clean Energy Jobs Act. “It became a moot point, didn’t it?”

Curtis Bay Energy LP, which operates the largest dedicated Hospital/Medical/Infectious Waste Incineration (HMIWI) facility in the U.S., is among the plaintiffs in the lawsuit that seeks to invalidate the Baltimore Clean Air Act. Wheelabrator Baltimore LP, a waste to energy plant that processes much of the city’s municipal solid waste, is the other lead plaintiff.

Both facilities stand to be shut down by the “imposing extraordinarily low emission limits and other mandates that the city has no authority to require,” according to the suit, which was filed on April 30 in U.S. District Court for the District of Maryland.

“The act – supported by no legislative factfinding and the thinnest of records – targets Wheelabrator Baltimore and Curtis Bay with the intent of driving them from business in an arbitrary and capricious manner and in a remarkable display of legislative hubris,” the lawsuit says.

The suit charges that the city doesn’t have the authority to regulate air emissions, which are regulated by state governments by authority of the federal Clean Air Act. It further suggests that that the city’s real aim is not to clean the air, but rather to pursue an “agenda to close the (incineration) facilities regardless of consequence to residents and businesses in Baltimore City and beyond.”

“The (Baltimore Clean Air Act) is not a good faith effort to regulate air emissions,” the lawsuit says. “Rather it is a targeted attempt to shut down two specific facilities, ignoring all other stationary and mobile sources of air emissions in the city.”

According to the suit, Wheelabrator - not Curtis Bay - is the primary target.

“Baltimore City Councilman Edward Reisinger, who sponsored the (Baltimore Clean Air Act), stated that it is specifically intended to ‘shut down Wheelabrator’ and declared that ‘(Wheelabrator’s) got to be closed,” the suit says.

However, should Curtis Bay be shut down, it would restrict the options for processing about 25,000 annual tons of medical waste - the amount processed by the facility last year.

“There are not a lot of medical waste incinerators in the country,” said Anne Germain, of the National Waste & Recycling Association (NWRA), a Washington, D.C.- based trade association that has joined the lawsuit as a plaintiff. “That’s part of the reason why we were concerned about the actions being taken in Baltimore.”

However, Germain acknowledges, most medical waste can be autoclaved, rather than incinerated.

“It is just a very small subset that needs to be incinerated, and that would have to be done a far distance away (if Curtis Bay closed down),” she said.

Bob Spurgin, of Irvine, Calif.-based Spurgin & Associates, a medical waste consulting firm, said the three constituents within medical waste that require destruction by combustion or pyrolysis are trace chemotherapy items, pathological tissue and non-hazardous pharmaceuticals. Additionally, he said, the U.S. Drug Enforcement Administration (DEA) specifies that the only method of rendering controlled substances, such as opiates and narcotics, is incineration. Such pharmaceuticals are regulated as hazardous waste. Germain said hazardous waste pharmaceuticals must be burned at a hazardous waste incinerator, not at a medical waste incinerator.

Still, Spurgin said, “There are alternative treatment methods for medical waste but none that completely supplant incineration or pyrolysis.”

He said about 10 percent of the regulated medical waste stream needs to be incinerated. About 90 percent can be autoclaved.

“It is clear that incinerators are a necessary part of the disposal process,” he said.

In a letter to current Baltimore Mayor Bernard C. Young, who then was president of City Council, Darrel K. Smith, president and CEO of NWRA, asked that the city reconsider its Clean Air Act. Smith argued that combustion has been determined to be the best management practice for a variety of waste streams - such as certain pharmaceuticals.

The letter, written before Baltimore passed its Clean Air Act, and before the U.S. EPA published its newly revised Management Standards for Hazardous Waste Pharmaceuticals, said, “U.S. EPA’s forthcoming hazardous waste pharmaceuticals regulations will mandate the combustion of some pharmaceuticals.

In addition, the rule will require cessation of sewering of some pharmaceuticals due to concerns about environmental impacts from wastewater discharge. This is why it is not always best to autoclave wastes from healthcare setting. Hazardous materials could be discharged to the sewer system leading to waterbodies.”

Smith wrote that the disposal of controlled substances and medications disposed of through take-back events and kiosk programs would suffer from the shutdown of facilities like Curtis Bay.

“Incineration is currently the only acceptable form of destruction for these materials, according to the Drug Enforcement Administration (DEA) and the U.S. EPA per new regulations. Such programs which are already costly, could incur increased cost if incineration capacity is further limited,” Smith wrote.

An EPA spokesperson, however, said there is ample incineration capacity to burn pharmaceuticals.

“Pharmaceuticals constitute a small fraction of the waste that is combusted,” she wrote in an email. “The Regulatory Impact Analysis for the hazardous waste pharmaceuticals final rule estimates that 16,000 to 21,000 tons of hazardous waste pharmaceuticals are disposed of annually by healthcare facilities and reverse distributors. These data only include pharmaceuticals that are regulated as RCRA (Resource Conservation and Recovery Act) hazardous waste. Therefore, the data do not include pharmaceuticals that are not regulated as RCRA hazardous waste, such as household pharmaceuticals.”

Another EPA spokesperson said the new “pharmaceuticals rule,” which is scheduled to take effect on August 21, 2019, applies to a relatively small amount of medications.

“The rule that hazardous waste pharmaceuticals have to be treated before they can be land-disposed has been around for years - and in almost all cases, treatment for hazardous waste pharmaceuticals is incineration,” she said. “That’s for hazardous waste pharmaceuticals that are from a health care facility. The new rule is specifically for take-back pharmaceuticals, such as community take-back events where law enforcement is present, or the take-back bins at places like Walgreen’s.”

She said the new disposal rules specify that the recovered pharmaceuticals have to be “treated,” but not “incinerated.” However, she said, incineration is the only treatment currently approved by the DEA.

The Curtis Bay facility, which opened in 1991, accepts medical waste generated by hospitals, doctors and dentists, nursing homes, emergency responders, medical research facilities, veterinarians and pharmaceutical manufacturers within Baltimore and the surrounding region. Medical waste generators within the city alone produce almost 11,000 tons of medical waste annually, most of which is disposed of at Curtis Bay. The facility is permitted to incinerate a maximum of 150 tons of medical waste per day in its two incinerator units. The processed medical waste is rendered safe for disposal at a sanitary landfill as ash.

The lawsuit claims that the city of Baltimore, through its Clean Air Act, intentionally set air emission regulations so stringent that that Wheelabrator and Curtis Bay would be unlikely to meet them - at least without a a prohibitive cost to comply. Further, the suit says, the city does not have legal authority to regulate air emissions.

Curtis Bay’s emission are regulated by the Clean Air Act, through EPA emission guidelines for HMIWI facilities, which were last revised in 1997 and formally adopted in May 2013. The suit cites EPA sources that say 2,400 HMIWI facilities operated in the U.S. prior to the guideline revision. Following the revisions, by 2008, that number dropped 98 percent, to 57 facilities.

The Clean Air Act requires EPA to establish health based National Ambient Air Quality Standards, which individuals states then regulate through State Implementation Plans (SIPs). The lawsuit notes that EPA most recently approved Maryland’s SIP in 2017 following a public rule making process that sought input from local governments, including the city of Baltimore. The city didn’t participate in meetings, nor did it offer written comments relating to the proposed SIP.

Further, the lawsuit says, the city also did not request that the state adopt stricter emission guidelines for regulated HMIWI facilities - specifically Curtis Bay - which operated within city limits “as it is permitted to do” under state law.

Ironically, Curtis Bay’s most recent five-year Title V operating permit under the federal Clean Air Act went into effect on May 1, 2019 - less that two months after Pugh signed the local legislation that could close the facility down. The permit sets emissions limits for particulate matter, opacity, carbon monoxide, dioxins and furans, hydrogen chloride, sulfer dioxides, nitrogen oxides, lead, cadmium and mercury. Curtis Bay, the lawsuit says, meets federal guidelines and state limits for all of those.

“These are the emissions limits that EPA and the Maryland Department of the Environment (MDE) have independently determined, after rigorous scrutiny, are the best achievable protective of human health and the environment,” the suit says.

The Baltimore Clean Air Act sets limits that are, in some cases, significantly lower. For example, federal and state limits and Curtis Bay’s Title V permit limitations for nitrogen oxides is 140 ppmvd (parts per million volumetric dry). The Baltimore Clean Air Act places a limit of 45 ppmvd.

In January 2018, after Curtis Bay applied to MDE for the permit that went into effect in May, nobody, including the city of Baltimore, provided a comment during the public notice period, the lawsuit says. When the permit was released in April, the city could have made a request for stricter emissions limits but didn’t.

“The city made no such effort to shape emission limits under the new Title V permit, an issue it now claims is a priority that requires action by and through the (Baltimore Clean Air Act),” the lawsuit says. “This failure by the mayor and the city to use these well-established opportunities to effect a present reduction in emissions from the Curtis Bay Facility demonstrates that the city’s intent and goal with the act was not to reduce emissions from the Curtis Bay Facility to levels less than currently permitted, but instead an attempt to utilize the legislative process to force the facility to close.”

In addition to NWRA, TMS Hauling LLC, a Baltimore hauler that delivers municipal solid waste to Wheelabrator, and the Arlington, Va.- based Energy Recovery Council, also have joined the lawsuit as plaintiffs. The court in May granted the city an extended deadline of July 22, 2019 to respond to the lawsuit.

Neither the city’s Law Department nor Councilman Reisinger responded to calls to discuss the suit.

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