WASHINGTON – The U.S. Supreme Court on Tuesday refused to hear an appeal from a company challenging Baltimore City’s moratorium on the construction or reconstruction of trash incinerators in the city.
The high court, without comment, let stand lower court rulings that threw out the case by the New Pulaski Co. because it took too long to file suit over its Pulaski Highway solid waste incinerator.
“We’re exceedingly happy we’ve won,” said Baltimore City Solicitor Thurman W. Zollicoffer Jr.
An attorney for the New Pulaski Co. refused Tuesday to comment on any facts related to the case.
The incinerator was run by the city from 1956 until 1981, when it was sold to Pulaski. Neighbors began agitating against the facility in the early 1990s, said City Council member Nicholas D’Adamo Jr., one of the co-sponsors of Ordinance 128, which banned new incinerators.
“They found that cancer rates in that area were higher than in other areas in the city,” said D’Adamo, who represents the area. “I think it’s a victory for the neighborhood and I think the community should be very happy.”
The moratorium, enacted in August 1992, banned the construction, reconstruction, replacement or expansion of any city incinerator.
At the time, the Pulaski incinerator needed millions of dollars worth of upgrades to meet state and federal environmental standards. The company wanted to build a new incinerator, saying it would have been cheaper than upgrading the old one, but the moratorium blocked that option.
The Towson company sued, claiming that the ordinance unconstitutionally took its property and deprived it of its due process rights. But Pulaski did not file suit in federal court until 1997, well after the three-year statute of limitations ran out for challenges to the 1992 moratorium.
The company argued in its appeal that, before it rushed to court with a lawsuit, it first tried to get an exemption to the ordinance. The clock on the statute of limitations should not have started running until after that effort was exhausted, it said.
But a U.S. District Court judge rejected that reasoning, saying the statute of limitations could only be delayed while the company pursued an administrative appeal of Ordinance 128. Because the exemption involved the political decision of a legislative body — the City Council — the court ruled that the company had to comply with the three-year limit.
A divided panel of the 4th U.S. Circuit Court of Appeals in Richmond agreed, and the high court refused to review the case Tuesday.
“I think the federal district court and the 4th Circuit Court properly applied the standard,” said Zollicoffer.
The incinerator has been shut down since 1995.
In addition to health concerns, D’Adamo said, the city already has one incinerator in South Baltimore, and community residents did not want another one in the city for fear that it would bring in trash from other states.
Incinerators need a certain amount of trash in order to break even, and one incinerator was all the city needed to burn its share of trash, said Mike McCleary of the Baltimore’s chapter of Clean Water Action.
Baltimore’s moratorium was only the third of its kind in the country, said McCleary, who hailed the ordinance as “a positive step toward using more progressive approaches to disposing waste.”