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Frederick County Attorney John Mathias is looking into legal options to put incinerator construction plans back on track.

Frederick County commissioners are hoping to overturn a decision this month by the county's Planning Commission that could delay the permitting process for the $500 million incinerator, or what some people call a "waste-to-energy facility" because it burns trash to produce electricity.

Mathias declined to discuss the options, but said he will present them to commissioners in a week or two.

In July, officials from Frederick and Carroll counties signed an agreement to hire Wheelabrator, a New Hampshire-based company, to build an incinerator big enough to burn 1,500 tons of trash per day.

Controversy erupted at an Oct. 14 Planning Commission meeting during what was supposed to be a routine review of changes to the county's Solid Waste Management Plan.

In a surprise move, the Planning Commission ruled that changes — including the county's new recycling efforts and incinerator construction plans — were not consistent with the county's comprehensive plan.

The comprehensive plan, which commissioners are in the midst of updating, serves as a blueprint for growth. It provides information on development, land use, transportation pattern and water resources.

The Planning Commission ruled that the view of the incinerator's smokestack and the incinerator's proximity to the Monocacy National Battlefield are not consistent with the comprehensive plan, which calls for the preservation of historic sites, such as the battlefield, and the protection of the Monocacy River.

The incinerator will be built at the McKinney Industrial Center off Md. Route 85, south of the City of Frederick, near the county's wastewater treatment plant.

Frederick County Commissioners President Jan H. Gardner (D) said the Planning Commission's actions were wrong, since specific details concerning the distance of the smokestack are not even in the Solid Waste Management Plan.

"The plan is not specific to any site distance," Gardner said. "It disturbs me that they're not following the law."

In response to the board's outrage, the Planning Commission took a vote to rescind its Oct. 14 decision, but it failed.

Planning Commission Chairwoman Catherine Forrence stands by the vote, and questions why changes to the Solid Waste Management Plan fail to address efforts to protect the battlefield and the Monocacy River.

"I think the comprehensive plan states clear goals and policies about maintaining the integrity of the Monocacy National Battlefield and scenic Monocacy River," Forrence wrote in an e-mail.

It was clear from the Planning Commission's discussion that several members oppose the incinerator project altogether, and that elicited a stern chastising from Assistant County Attorney Michael Chomel.

"Your role here today is a limited role," Chomel said. "The fact that you as an individual may not like the solution or may not like the location is not something [on which] you should base a refusal. You are not a legislative body. You're not a policy-making body. You have roles and processes and those processes give you a different authority. It's the Board of County Commissioner that determines where solid waste facilities should go. You may not like that choice, but that doesn't entitle you or justify you in opposing their choice, just because you think a better choice could have been made."

Forrence denies that members let their opposition to the incinerator influence their votes.

"The Frederick County Planning Commission's findings were clearly unrelated to waste-to-energy support and or opposition," she said.

Meanwhile, Gardner thinks Planning Commission members are really just confused about their role and authority.

"I think we need comprehensive training so they know what their role is," she said. "It appeared to me that they didn't understand what they can do."

Forrence disagrees.

"Well, I think anyone would benefit from more education and training, but do not think the decision by the Frederick County Planning Commission reflects a lack of appropriate training," she said.

The Planning Commission is one of the most powerful boards in the county. The seven-member board has final authority over site plans and subdivision plats, and determines if the formula outlined in the county's growth policy is adequate for new housing to move forward.

It also advises and makes recommendations to commissioners on whether to adopt subdivision amendments and countywide regional growth plans.

Members, who meet twice a month, serve five years and are paid $75 per meeting.

Members must be county residents and registered voters. The Frederick Board of County Commissioners interview and decide who will serve.