Wheelabrator Balt., L.P. v. Mayor & City Council of Balt.

• Decision Date: 27 March 2020
• Docket Number: Civil Action No. GLR-19-1264
• Citation: 449 F.Supp.3d 549
• Parties: WHEELABRATOR BALTIMORE, L.P., et al., Plaintiffs, v. MAYOR AND CITY COUNCIL OF BALTIMORE, Defendant.
• Court: U.S. District Court — District of Maryland

449 F.Supp.3d 549

WHEELABRATOR BALTIMORE, L.P., et al., Plaintiffs,

v.MAYOR AND CITY COUNCIL OF BALTIMORE, Defendant.

Civil Action No. GLR-19-1264

United States District Court, D. Maryland.

Signed March 27, 2020

Roy D. Prather, III, Beveridge & Diamond PC, Baltimore, MD, David M. Friedland, Pro Hac Vice, James B. Slaughter, Pro Hac Vice, Beveridge & Diamond PC, Joshua H. Van Eaton, Pro Hac Vice, Washington, DC, Meghan L. Morgan, Beveridge and Diamond PC, Boston, MA, for Plaintiffs Wheelabrator Baltimore, L.P., Energy Recovery Council, National Waste & Recycling Association, TMS Hauling, LLC.

George Faulkner Ritchie, IV, Michael C. Powell, Gordon Feinblatt LLC, Michael Trent Zivkovich, Whiteford Taylor and Preston LLP, Baltimore, MD, for Plaintiff Curtis Bay Energy, L.P.

Thomas Patrick George Webb, Doris N. Weil, Kurt A. Heinrich, Baltimore City Law Department, Dana Petersen Moore, Office of the City Solicitor, John Fitzgerald Dougherty, Kramon and Graham PA, Baltimore, MD, for Defendant Mayor and City Council of Baltimore.

MEMORANDUM OPINION

George L. Russell, III, United States District Judge THIS MATTER is before the Court on Defendant Mayor and City Council of Baltimore's (the "City") Motion to Dismiss (ECF No. 30); Plaintiffs Wheelabrator Baltimore, L.P. ("Wheelabrator"), Curtis Bay Energy, L.P. ("Curtis Bay"), Energy Recovery Council ("ERC"), National Waste & Recycling Association ("NWRA"), and TMS Hauling, LLC's ("TMS") Motion for Partial Summary Judgment (ECF No. 35); and the City's Cross-Motion for Partial Summary Judgment (ECF No. 39).¹ The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will grant Plaintiffs' Partial Motion for Summary Judgment; deny the City's Partial Motion for Summary Judgment; and grant in part and deny in part the City's Motion to Dismiss.

I. BACKGROUND²

Plaintiffs Wheelabrator and Curtis Bay are solid waste incineration facilities located in Baltimore City, Maryland. (Compl. ¶¶ 8, 15, ECF No. 1). Wheelabrator receives non-hazardous municipal solid waste from homes and businesses in Baltimore City and surrounding counties and converts it into energy. (Id. ¶¶ 23, 26). Curtis Bay processes medical waste generated in Baltimore City and the surrounding counties to reduce the volume of waste entering landfills. (Id. ¶¶ 33–35). Because incineration produces emissions, Wheelabrator and Curtis Bay are subject to various federal and state air pollution laws and regulations. (Id. ¶¶ 31–32, 34).

Plaintiffs ERC and NWRA are non-profit trade associations that promote the interests of the waste-to-energy industry and for-profit waste companies. (Id. ¶¶ 18–19). Wheelabrator is a member of ERC and NWRA; Curtis Bay is a member of NWRA. (Id. ).

Finally, Plaintiff TMS is a Baltimore City-based trash removal company that disposes waste from residential apartment buildings and small businesses within the City exclusively at the Wheelabrator facility. (Id. ¶ 17).

A. Federal and State Regulatory Scheme

The federal Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq., is the primary mechanism for the management of air emissions in the United States. The CAA requires the Environmental Protection Agency ("EPA") to set acceptable levels of airborne emissions, called National Ambient Air Quality Standards ("NAAQS"), "the attainment and maintenance of which ... are requisite to protect the public health." 42 U.S.C. § 7409(b)(1). As a result of this statutory directive, EPA has promulgated NAAQS for a number of air pollutants. See 40 C.F.R. § 50.4 – 50.9. To adopt or modify NAAQS, EPA must provide a public notice-and-comment period to permit "interested persons to submit written comments." 42 U.S.C. § 7409(a)(1)(B), (b)(1) & (2). EPA has also adopted extensive regulations concerning appropriate scientific equipment and techniques for measuring emissions levels and air quality. See 40 C.F.R. § 50, et seq.

Although EPA sets the nationwide level of acceptable emissions, it does not directly regulate the actual sources of emissions. See 42 U.S.C. § 7401(a)(3) (recognizing "that air pollution prevention ... and air pollution control at its source is the primary responsibility of States and local governments"). Rather, decisions about the best way to achieve NAAQS are left to individual states. Id. § 7410(a)(1). As such, each state is required to prepare and submit to EPA a State Implementation Plan ("SIP") designed to achieve the NAAQS. Id. SIPs must "include enforceable emission limitations and other control measures, means, or techniques" to guarantee compliance with NAAQS. Id. § 7410(a)(2)(A). SIPs must be approved by EPA before they become final. Id. § 7410(a)(1), (k)(2) & (3).

States are tasked with enforcing the limitations in their SIPs, which includes implementing a permit program to limit the amounts and types of emissions each permit holder is allowed to discharge. Id. §§ 7661a(d)(1), 7661c(a). Title V of the CAA requires solid waste incineration facilities to obtain an operating permit ("Title V permit") and certify compliance with all permit requirements on a regular basis. Id. § 7661a(a). Solid waste incineration facilities are prohibited from operating without a Title V permit. Id.

Title V permits are issued by the Maryland Department of the Environment ("MDE"). (Compl. ¶¶ 14, 16); see also 40 C.F.R. § 70.3 ; COMAR 26.11.03.01. Applicants for Title V permits must meet several requirements under Maryland's regulations. See COMAR 26.11.03.06. Proposed Title V permits must undergo a public notice-and-comment period, during which time members of the public may submit written comments. COMAR 26.11.03.07. Proposed Title V permits are also subject to review by any state purportedly affected by the permit and by the EPA. COMAR 26.11.03.08 – 09.

B. Wheelabrator's and Curtis Bay's Title V Permits

As solid waste incinerators, Wheelabrator and Curtis Bay are subject to the State's Title V permitting system. See 42 U.S.C. § 7429. Wheelabrator's most recent Title V permit was issued by MDE on April 1, 2014. (Pls.' Mot. Partial Summ. J. ["Pls.' MSJ"] Ex. B ["Wheelabrator Title V Permit"] at 1, ECF No. 35-3). Wheelabrator's Title V permit authorizes emissions of nitrogen oxides up to 205 ppmvd; sulfur dioxide to 29 ppmv; dioxins and furans to 35 ng/dscm; and mercury to 50 µg/dscm. (Id. at 45–46). Curtis Bay's most recent Title V permit, which was issued by MDE on May 1, 2019, authorizes emissions of nitrogen oxides up to 140 ppmvd; sulfur dioxide to 9 ppmv; dioxins and furans to 9.3 ng/dscm; and mercury to 18 µg/dscm. (Pls.' MSJ Ex. F ["Curtis Bay Title V Permit"] at 1, 31, ECF No. 35-7).

Under their Title V permits, Wheelabrator and Curtis Bay must employ Continuous Emissions Monitoring Systems ("CEMS") for particulate matter, sulfur dioxide, nitrogen oxides, carbon monoxide, hydrogen chloride, dioxins and furans, cadmium, lead, and mercury pursuant to the methods specified in 40 C.F.R. §§ 60.58b(b) – (i) and 40 C.F.R. §§ 60.56c(b)(6)–(13), respectively. (Wheelabrator Title V Permit at 45–46; Curtis Bay Title V Permit at 37). EPA must validate and approve any CEMS before it may be utilized by a solid waste incineration facility. See 42 U.S.C. § 7429(c) ; 40 C.F.R. § 60.13. Wheelabrator must impose CEMS for ninety-five percent of operational hours per calendar year; Curtis Bay must impose CEMS for ninety percent of its operating days per calendar quarter. See 40 C.F.R. § 60.38b, 60.58b, 60.37e(d), 60.57c(e) ; COMAR 26.11.08.08, 26.11.08.08-2B(5). Additionally, federal and state regulations permit downtime for repairs, calibration checks, and other adjustments on CEMS equipment. See 40 C.F.R. § 60.58b, 60.57c(e) ; COMAR 26.11.08.08, 26.11.08.08-2B(5).

Noncompliance with a Title V permit constitutes a violation of the CAA and Title 2 of the Environmental Article of the Annotated Code of Maryland, and may subject the permit holder to an enforcement action, permit revocation or revision, or denial of an application for permit renewal. (Wheelabrator Title V Permit at 22; Curtis Bay Title V Permit at 20). The CAA imposes criminal penalties for "knowing" violations of the statute. 42 U.S.C. § 7413(c).

C. Baltimore City Ordinance

On February 11, 2019, the Baltimore City Council passed Ordinance 18-0306, known as the Baltimore Clean Air Act ("BCAA" or the "Ordinance"), Balt. City Health Code § 8-110, et seq., which was signed into law on March 7, 2019. (Compl. ¶¶ 1, 4). The Ordinance applies to all commercial solid waste incinerators in Baltimore City, including Wheelabrator and Curtis Bay. (Id. ¶ 5; (Compl. Ex. A ["Ordinance"] § 8-112, ECF No. 1-2). The Ordinance limits permissible emissions of nitrogen oxides to 45 ppmvd; sulfur dioxide to 18 ppmv; dioxins and furans to 2.6 ng/dscm; and mercury to 15 µg/dscm. (Ordinance § 8-116). The Ordinance also requires CEMS for dioxins and furans; carbon dioxide and carbon monoxide; hydrochloric acid and hydrofluoric acid; nitrogen oxides; sulfur dioxides; particulate matter; volatile organic compounds; polycyclic aromatic hydrocarbons; and arsenic, cadmium, chromium, lead, manganese, mercury, nickel, selenium, and zinc. (Id. § 8-114). The Ordinance mandates that CEMS must be continuously active at all times the facility is operational and imposes penalties for lapses in CEMS exceeding thirty minutes. (Id. § 8-115). The Ordinance also establishes strict liability criminal penalties for violations. (Id. § 8-125).

D. Procedural History

On April 30, 2019, Plaintiffs sued the City, alleging: federal preemption (Count 1); state preemption (Counts 2–5); ultra vires (Count 6); violation of Article XI-A of the Maryland Constitution (Count 7); violations of substantive due process and equal protection under 42 U.S.C. § 1983 (Counts 8 and 9); and violations of Articles 19 and 24 of the Maryland Declaration of Rights (Counts 10 and 11). (Compl. ¶¶ 79–188). Plaintiffs seek declaratory judgment, injunction against...