Activists say Energy Answers' planned Baltimore incinerator cannot be built lawfully

Ongoing violations of requirements that allowed Energy Answers to begin building its planned waste-to-energy incinerator in Baltimore are worse than regulators indicated in June, according to a letter sent today to the Maryland Department of the Environment (MDE) by the national environmental group Environmental Integrity Project (EIP) and the human-rights group United Workers, and before construction can restart lawfully the company must seek and obtain new approvals from the Maryland Public Service Commission (PSC).

"The deadline has passed for Clean Air Approvals to be made effective," EIP attorney Leah Kelly wrote in the letter, "and Energy Answers must seek new Clean Air Approvals in order to construct the incinerator."

The issue revolves around requirements that EA purchase "emissions offsets," which are rights to pollute sold on a per-ton basis by companies that have shut down a polluting facility. In June, MDE notified EA that its failure to obtain nearly 80 tons in required offsets was a violation and that the agency was open to resolve the issue short of litigation over civil penalties. City Paper updated the situation on Aug. 1, when MDE said EA had “submitted information that it has obtained emissions offsets to replace those for which it failed to execute the final call option," and "that information is under review."

Kelly’s letter, though, reveals a new wrinkle in the story about MDE's enforcement of EA's offset purchases: When MDE gave the company the go-ahead to start construction of the incinerator in August 2013, it did so knowing the company had documented agreements to purchase offsets far below the amounts required. Turns out, according to MDE's own documentation attached to Kelly's letter, MDE allowed EA to begin building after showing it had lined up purchases of just 28 percent of required offsets for volatile organic compounds, 25 percent of nitrogen oxides, and 73 percent each of fine particulates and sulfur dioxides.

As a result, Kelly says in an interview, EA's permits for constructing the incinerator "never became effective" because the company "never complied with the conditions." Thus, she explains, in order to restart construction, EA "would have to submit an application to the PSC again," starting a new process of agency and public review, including "another public-comment period and another hearing." It's can be a tedious hurdle to surpass; the current PSC approval was gained more than a year after the application was first filed in 2009.

Asked if she thought MDE had any wiggle room to give EA an avenue to go back to building the plant without revisiting the PSC process, Kelly says, "No, not with the way the permit is written." Even "if EA did replace the 80 tons" that got them in hot water with MDE, Kelly adds, "it's still a violation of the permit."

MDE spokesman Jay Apperson says that while "it is correct to say that Energy Answers has obtained a fourth of the total offsets that would be required for the entire project, as proposed," the agency interprets the law to mean that "offsets are required on a unit-by-unit basis within a project." Since "this project includes four proposed units, with construction started on one of the four," he continues, "the company complied with the regulation by obtaining one-fourth of the total offsets." 

Thus, EIP's assertion that EA will have to start the application process over will likely not be shared by MDE. Nonetheless, by publicly stating its position based on newly revealed facts, EIP has prompted a fuller account of the situation: that regulators, prior to trying in June to get EA to come into compliance, had intepreted the law in the light most favorable to EA.

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