Contamination prompts a judge-angering court fight over Baltimore casino
Published: August 14, 2013
A federal judge in Baltimore on Aug. 9 angrily denied 10 Westport and Cherry Hill residents’ request to halt construction of the long-awaited, 335,000-square-foot Horseshoe Casino off Russell Street near M&T Bank Stadium, saying their petition “woefully failed” to meet the “heavy burden” plaintiffs must meet before such an injunction can be granted.
The residents, U.S. District Judge Richard Bennett noted, “failed to even exercise their rights as citizens” to submit public comments on the casino’s “voluntary cleanup plan” to address well-documented environmental contamination at the site, which is a state-designated “brownfield” slated for redevelopment. And, he noted, “none” of the plaintiffs “live in close proximity” to the construction site, while “only two live in the same ZIP code.” Though the lawsuit describes the harm that allegedly would befall the plaintiffs due to their proximity to the casino project, their listed addresses actually reflect that they live in various neighborhoods around Baltimore.
Bennett’s ruling means the Horseshoe’s construction and operation—Caesar’s Entertainment expects to open the facility next year—may proceed as the litigation continues.
The residents, represented by College Park attorneys Anuj Sud and Walter Green, still can proceed with their lawsuit, which alleges that construction and operation of the $400 million casino will exacerbate contamination problems in the vicinity and that regulators’ conduct in allowing the site to be redeveloped violated their civil rights. The lawsuit points to a variety of contaminants in the soil and groundwater under the site, including cancer-causing compounds that are known to become airborne as vapors, citing evidence that they are migrating to other nearby areas and that construction activities will cause them to migrate more.
The lawsuit was filed Aug. 1, joining three others—two in Baltimore City Circuit Court and one in federal court—that seek to use environmental laws to redress claimed harm from the casino project. The latest suit, though, is noteworthy for alleging civil rights violations, saying that the casino redevelopment fits “a pattern of intentional discrimination in the siting of undesirable industry that causes toxic contamination near predominantly African-American communities” by the city of Baltimore.
The lawsuit says that while cleanup costs at the casino site are capped at $4 million under an agreement with the city, the Harbor Point redevelopment site, located in a more upscale and predominantly white area, underwent $110 million in efforts to contain chromium contamination.
The hearing before Bennett was a lopsided affair, with Sud and Green on one side of the courtroom and on the other, a dozen attorneys announcing their presence on behalf of the defendants: the Maryland Department of the Environment (MDE), which oversees the state’s voluntary cleanup program, better known as the “brownfields” program; the City of Baltimore, which owns the site and facilitated the casino project; casino company CBAC Gaming LLC (CBAC); Whiting-Turner Contracting Company, the builder; the U.S. Environmental Protection Agency (EPA), which has an agreement with MDE to regulate brownfields’ redevelopment; Urban Green Environmental LLC; and the U.S. Department of Agriculture’s Natural Resources Conservation Services, which protects wetlands, including those near the casino site on the Middle Branch of the Patapsco River.
“I’m on the side of a casino business!” joked Maryland Assistant Attorney General Matthew Zimmerman, representing MDE, before the hearing started. One of CBAC’s attorneys, Thomas Lingan, retorted: “This is bizarro-world!”
In arguing for the restraining order, Sud said that regulators are approaching pollution cleanup at the casino site differently than they did at Harbor Point. The proposed site of the Baltimore headquarters of Exelon Corporation, the energy giant, used to house an Allied Chemical plant that, after it closed, underwent extensive and expensive environmental cleanup efforts under direction from EPA until 1999. In contrast, the residents’ lawsuit points out that the city and CBAC entered into a development agreement “where the City had substantial financial motivation to ensure the remediation costs for the Site were minimalized,” because CBAC could terminate the agreement if such costs exceed $4 million.
At another location, a half-mile away from the casino site on Annapolis Road, Sud pointed out that the EPA, acting on MDE’s behalf, on Aug. 1 was granted a federal warrant to use cutting-edge technology to test for the source of trichloroethylene and perchloroethylene, cancer-causing industrial solvents detected in the air in adjacent houses, beneath a former site of Chemical Metals Industries (CMI).
The CMI investigation has been going on for decades (“The Vapors,” Feature, July 22, 2009), and the same chemicals have been detected at the casino site. Yet “in our case,” Sud says, the request for EPA to conduct hi-tech testing “was never made” by MDE, so “in certain cases, [the regulators] acted one way, and in others, they acted totally differently.”
CBAC attorney Mary Sweeney, though, argued that the there has been “no departure from normal procedure” at the casino site, where “prompt cleanup of the properties” is being undertaken to “place them back on the tax rolls.” She noted as well that the Harbor Point site was cleaned up under a consent decree as part of litigation, not the voluntary brownfields program, in which it “was not even eligible for participation.”
Bennett, in denying the residents’ request for an injunction, said he found it “somewhat stunning” that the plaintiffs could lay claim to alleged harm from the casino project when the assertion is “positively not supported by the record” in the case. Rather, he noted the “extreme harm being foisted on the City of Baltimore” should the project be halted, since “the site is, in fact, being cleaned up” under the brownfields program. Bennett also excoriated Sud and Green for what he called their “11th-hour attempt to interject the federal court” into the matter with a fast-paced injunction request that consumes “the time of this court and the time of the defendants.” Finally, as the lawsuit continues, he suggested the plaintiffs “streamline this case and get to the meat of what it is about.”
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