Baltimore Clean Air Act Lawsuit

This case was heard and decided by Federal District Judge George L. Russell, III. An appeal by the city, and cross-appeal by industry, has been filed with the Fourth Circuit Court of Appeals.

Bold items are the key documents. Plaintiff (industry) filings are shaded in beige. Defendant (city) filings are in light green. Filings from the court are in grey. Amicus filings from the “Local Government Coalition for Renewable Energy” (local governments with trash incinerators) are in pink, and Energy Justice Network is in blue.
Date Filed#Document
4/30/20191Complaint
Civil Cover Sheet
Exhibit A – Baltimore Clean Air Act
Exhibit B – Wheelabrator Title V permit
Exhibit C – MDE Letter to EPA Submitting Maryland’s State Implementation Program (SIP)
Exhibit D – Curtis Bay Energy Title V permit
Exhibit E – Baltimore DPW Memorandum to Baltimore City Council, dated January 28, 2019
Exhibit F – Baltimore DPW Fiscal Analysis of Possible Impacts of City Council Bill 18-0306, dated February 2019
Exhibit G – Wheelabrator Baltimore’s Refuse Disposal Permit (No. 2016-WTE-0030)
Exhibit H – Curtis Bay’s Refuse Disposal Permit (No. 2017-WMI-0036)
Summons
4/30/20192Summons
5/1/20193Disclosure Statement – Curtis Bay Energy
5/1/20194Disclosure Statement – Wheelabrator Baltimore
5/1/20195Disclosure Statement – Energy Recovery Council
5/1/20196Disclosure Statement – National Waste and Recycling Association
5/1/20197Disclosure Statement – TMS Hauling
5/6/20198Summons Return Executed
5/6/20199Motion for Admission Pro Hac Vice – James B. Slaughter, Atty for Wheelabrator and Energy Recovery Council
5/6/201910Motion for Admission Pro Hac Vice – David Friedland, Atty for Wheelabrator and Energy Recovery Council
5/6/201911Motion for Admission Pro Hac Vice – Joshua H. Van Eaton, Atty for Wheelabrator and Energy Recovery Council
5/6/201912Motion for Admission Pro Hac Vice – Meghan L. Morgan, Atty for Wheelabrator and Energy Recovery Council
5/10/201913Order on Motion to Appear Pro Hac Vice
5/10/201914Order on Motion to Appear Pro Hac Vice
5/10/201915Order on Motion to Appear Pro Hac Vice
5/10/201916Order on Motion to Appear Pro Hac Vice
5/16/201917Notice of Appearance
5/16/201918Motion to Extend Time
Text of Proposed Order
5/16/201919Order on Motion to Extend Time
7/15/201920Request for Conference
7/17/201921Notice of Appearance for City
7/17/201922QC Notice – Miscellaneous
7/18/2019Telephone Conference
7/18/201923Order
7/18/201924Order Referring Case to Magistrate Judge
7/19/201925Status Report
7/22/201926Order
7/22/201927Notice of Appearance for city
7/22/201928Order
7/22/201929Notice of Appearance for city
7/22/201930Motion to Dismiss for Failure to State a Claim
Memo in Support
Exhibit
Text of Proposed Order
7/23/201931City proposed briefing schedule
7/24/201932Order (schedule)
8/2/2019Add and Terminate Judges
8/6/201933Transcript (not available)
8/16/201934Memo in Opposition to Motion to Dismiss
Exhibit A (Wheelabrator’s permit limits)
Exhibit B (Curtis Bay Energy’s permit limits)
8/23/201935Motion for Partial Summary Judgment
Memo
Exhibit A – Baltimore County’s 1982 Subdivision User Contract, dated November 3, 1982
Exhibit B – Wheelabrator Baltimore’s Title V permit, dated April 1, 2014
Exhibit C – Wheelabrator Baltimore’s Waste Disposal Agreement, dated June 22, 2011
Exhibit D – Baltimore City’s 2011 Subdivision User Contract, dated June 22, 2011
Exhibit E – Baltimore City’s Solid Waste Management Plan for 2013-2023
Exhibit F – Curtis Bay’s Title V permit, dated May 1, 2019
Exhibit G – Table 1, Emission Limits Applicable to Wheelabrator Baltimore
Exhibit H – Table 2, Emission Limits Applicable to Curtis Bay
Exhibit I – Baltimore City Council Resolution 17-0034R (NOx)
Exhibit J – Baltimore City Council Resolution 18-0101R (NOx)
Exhibit K – Memorandum Regarding City Council Bill 09-0400, City of Baltimore Department of Law, dated December 9, 2009
Exhibit L – Wheelabrator Baltimore’s Refuse Disposal Permit, dated March 3, 2017
Exhibit M – Curtis Bay’s Refuse Disposal Permit, dated June 13, 2017
Exhibit N – Baltimore City’s DPW Memorandum to Baltimore City Council, dated January 28, 2019
Exhibit O – Baltimore City’s DPW Fiscal Analysis of Possible Impacts of City Council Bill 18-0306, dated February 2019
Exhibit P – Baltimore City Health Code §8-110, et seq.
8/30/201936Local Government Coalition for Renewable Energy – Amicus Curiae brief
Motion for leave to file Amicus Curiae
9/13/201937City Opposition to Amicus filing of Local Government Coalition for Renewable Energy
9/20/201938Reply Memo in Support of City’s Motion to Dismiss
10/15/201939City’s Cross-motion for Partial Summary Judgment and Opposition to Plaintiffs’ Motion for Partial Summary Judgment
Exhibit A – J.B. Kitto, Jr., et al., World Class Technology for the Newest Waste-to-Energy Plant in the United States – Palm Beach Renewable Energy Facility No. 2 (Dec. 13, 2016)
Exhibit B – MDE Air Quality Control Advisory Council – Agenda, Minutes, and Exhibits (Dec. 11, 2017)
Exhibit C-1 – MDE Technical Support Document for Amendments to COMAR 26.11.08 – Control of Incinerators (Aug. 14, 2018)
Exhibit C-2 – “White Paper on Control Technologies and OTC State Regulations for Nitrogen Oxides (NOx) Emissions from Eight Source Categories,” Stationary Area Sources Committee, 2/10/2017
Exhibit C-3 – Motion by Energy Answers Baltimore, LLC, to Amend the Construction Commencement Deadline in its Certificate of Public Convenience and Necessity, Supplemental Environmental Review Document DRAFT, June 2012
Exhibit D – Md. Register 45:17 (Aug. 17, 2018)
Exhibit E – MDE Response to Comments related to Amendments to COMAR 26.11.01 et seq. (Sept. 21, 2018)
Exhibit F – Md. Register 45:24 (Nov. 26, 2018)
Exhibit G – MDE NOx Reasonably Available Control Technology State Implementation Plan (July 2, 2018)
Exhibit H – U.S. EPA “Mercury CEMS and Sorbent Trap System Certification Under New Rules” (Jan. 29, 2015)
Exhibit I – Dr. Nenad Sarunac, “Evaluation and Comparison of U.S. and EU Reference Methods for Measurement of Mercury, Heavy Metals, PM2.5 and PM10 Emissions from Fossil-Fired Power Plants” (Executive Summary) (Feb. 2007).
Exhibit J – U.S. EPA Environmental Technology Verification Program – Dioxin Emission Monitoring Systems (Feb. 2007)
Exhibit K – MDE Air Quality Control Advisory Council
Exhibit L – Todd R. Chason, Gordon Feinblatt LLC
Exhibit M – State Ethics Commission – Employer List (Nov. 15, 2018)
10/22/201940Energy Justice Network – Amicus Curiae brief
Motion for leave to file Amicus Curiae
10/22/201941Disclosure Statement – Energy Justice Network
10/31/201943QC Notice – Miscellaneous (the industry lawyers filed incorrectly and had to refile, which is why there’s no #42)
10/31/201944Reply in Support of Plaintiffs’ Motion for Partial Summary Judgment and Opposition to Defendant’s Cross-Motion for Partial Summary Judgment
Exhibit Q – Declaration of Timothy Porter
Exhibit R – Palm Beach Renewable Energy Facility’s Title V permit, dated January 30, 2019
Exhibit S: Palm Beach Renewable Energy Facility’s Final Air Construction Permit, dated November 8, 2018
Exhibit T: City of Baltimore, Department of Public Works, Memorandum to Baltimore City Council dated January 28, 2019 [this document was previously designated as Plaintiffs’ MSJ Exhibit N, but the document itself was inadvertently omitted from Plaintiffs’ prior ECF submission on August 23, 2019]
Exhibit U: Baltimore City Council Resolution 17-0029R
Exhibit V: Baltimore City Council Resolution 18-0086R
11/14/201945Reply in Support of Cross-Motion for Partial Summary Judgment
11/19/201946Motion to Withdraw as Attorney (Thomas Webb for City)
11/20/201947Correction of earlier submission
11/20/201947Exhibit Q (revised)
11/21/201948Order on Motion to Withdraw as Attorney
1/16/202049Request for Conference
1/21/202050NOTICE re [49] Request for Conference. The Court will conduct a telephone conference on Wednesday, January 29, 2020 at XXXX between Plaintiffs’ and Defendant’s counsel. Plaintiffs’ counsel is requested to initiate the call to [XXX-XXX-XXXX]. Counsel are advised, in addition to other issues, the call will address whether the City opposes a Stay of the “Act” pending resolution of the motions. (dafs, Chambers)
1/29/202050Telephone Conference
1/29/202051Order
3/27/202052Memorandum Opinion
3/27/202053Order on Motion to Dismiss for Failure to State a Claim
4/16/202054Motion to Withdraw as Attorney
4/17/202055Order on Motion to Withdraw as Attorney
4/21/202056Notice of Appearance
4/22/202057Notice of Appearance
4/22/202058Notice of Appearance
4/22/202059Notice of Appeal
4/22/202060Transmission of Notice of Appeal and Docket Sheet to USCA
4/23/202061USCA Case Number

Fourth Court Court of Appeals

Date Filed#Document
4/23/20201Case docketed. Originating case number: 1:19-cv-01264-GLR.
4/23/20202DOCKETING NOTICE issued Re: [1] case. Originating case number: 1:19-cv-01264-GLR.
4/23/20203BRIEFING ORDER filed. FILING OF PAPER COPIES OF BRIEFS/APPENDICES IS SUSPENDED PENDING FURTHER NOTICE FROM THE COURT. Opening Brief and Appendix due 06/02/2020. Response Brief due 07/02/2020.
4/23/20204APPEARANCE OF COUNSEL by Rachel Simmonsen for Mayor and City Council of Baltimore.
4/28/20205DISCLOSURE STATEMENT by Mayor and City Council of Baltimore. Was any question on Disclosure Form answered yes? No
4/29/20206DOCKETING STATEMENT by Mayor and City Council of Baltimore.
5/1/20207ORDER filed extending filing time for opening brief and appendix until August 10, 2020. Number of days granted: 69. Opening brief and appendix due 08/10/2020. Response brief due 09/09/2020. FILING OF PAPER COPIES OF BRIEFS/APPENDICES IS SUSPENDED PENDING FURTHER NOTICE FROM THE COURT.
5/7/20208APPEARANCE OF COUNSEL by David M. Friedland for Wheelabrator Baltimore, L.P., Energy Recovery Council and National Waste & Recycling Association.
5/7/20209APPEARANCE OF COUNSEL by Joshua H. Van Eaton for Energy Recovery Council, National Waste & Recycling Association and Wheelabrator Baltimore, L.P..
5/7/202010APPEARANCE OF COUNSEL by James B. Slaughter for Wheelabrator Baltimore, L.P., National Waste & Recycling Association and Energy Recovery Council.
5/7/202011NOTICE re: Plaintiffs-Appellees Notice of Cross-Appeal by National Waste & Recycling Association, Wheelabrator Baltimore, L.P. and Energy Recovery Council.
5/7/202012DISCLOSURE STATEMENT by Wheelabrator Baltimore, L.P.. Was any question on Disclosure Form answered yes? Yes
5/7/202013DISCLOSURE STATEMENT by National Waste & Recycling Association. Was any question on Disclosure Form answered yes? Yes
5/7/202014DISCLOSURE STATEMENT by Energy Recovery Council. Was any question on Disclosure Form answered yes? Yes
5/7/202015APPEARANCE OF COUNSEL by George F. Ritchie for Curtis Bay Energy, L.P..
5/7/202016APPEARANCE OF COUNSEL by Michael C. Powell for Curtis Bay Energy, L.P.. [file locked]
5/8/202017Docket correction requested from Curtis Bay Energy, L.P.. Re: [16] appearance of counsel.
5/8/202018ORDER filed suspending briefing. Copies to all parties.
5/8/202019ORDER filed consolidating case 20-1534 with 20-1473. Cross-appeal appellant: Mayor and City Council of Baltimore.
5/8/202020BRIEFING ORDER filed. Name of Cross-Appeal Appellant for briefing purposes: Mayor and City Council of Baltimore. FILING OF PAPER COPIES OF BRIEFS/APPENDICES IS SUSPENDED PENDING FURTHER NOTICE FROM THE COURT. Opening Brief and Appendix due 08/10/2020. Opening/Response Brief Due: 09/09/2020. Response/Reply Brief Due 10/09/2020.
5/8/202021APPEARANCE OF COUNSEL by Michael Trent Zivkovich for Curtis Bay Energy, L.P. in 20-1473.
5/11/202022DISCLOSURE STATEMENT by Curtis Bay Energy, L.P. in 20-1473. Was any question on Disclosure Form answered yes? Yes
5/20/202023APPEARANCE OF COUNSEL by Stephen E. Luttrell for Curtis Bay Energy, L.P. in 20-1473.
5/20/202024APPEARANCE OF COUNSEL by Roy D Prather III for Energy Recovery Council, National Waste & Recycling Association and Wheelabrator Baltimore, L.P. in 20-1473, 20-1534.
6/15/202025DOCKETING STATEMENT by Energy Recovery Council, National Waste & Recycling Association and Wheelabrator Baltimore, L.P.
7/14/202026MOTION by Mayor and City Council of Baltimore in 20-1473, 20-1534 Motion to postpone briefing deadlines to extend filing time for opening brief and appendix until October 9, 2020.
7/15/202027ORDER filed granting motion to extend filing time [26]. Number of days granted: 60. Opening brief and appendix due 10/09/2020. Opening/Response Brief Due: 11/09/2020. Response/Reply Brief Due 12/09/2020. Paper copy requirements are temporarily suspended unless the case is under pre-argument review or being scheduled for argument, in which case a total of four paper copies of formal briefs and appendices is required.