State, power industry oppose fly ash bill

A bill that tightens restrictions on fly ash is running into opposition from a state agency and the power industry.

However, Maryland Department of the Environment and coal industry advocates said at a hearing before the House Environmental Matters Committee Wednesday that this requirement also would stop fly ash from being used in "benevolent" ways.

"(The bill) created a lot of uncertainty with what is beneficial use," said Stephen Pattison, assistant secretary of MDE.

Fly ash, the gray byproduct created by burning coal, is used by the State Highway Administration when building roads. Mr. McConkey's bill would prevent this and other safe uses, Mr. Pattison said.

But fly ash has become a concern in Mr. McConkey's district. Since 1995 through this fall, power companies Baltimore Gas and Electric Co. and later Constellation Energy Group dumped fly ash into a surface mine in Gambrills.

A county investigation that began in October 2006 revealed that the substance had contaminated at least 23 nearby wells with heavy metals including known carcinogens and neurotoxins.

Eventually, MDE fined Constellation $1 million, and a Baltimore law firm has filed a class action lawsuit against the company, alleging that Constellation knew about groundwater contamination but didn't warn residents.

Mr. McConkey said his bill would prevent repeats of this situation elsewhere in the state by requiring additional safeguards.

"This bill would simply extend the protections we apply to landfills, it would apply to fly ash," he said.

Mr. McConkey agrees with the MDE that the bill would make some ways of using fly ash illegal.

The MDE is in the process of creating its own new fly ash regulations that are comparable to the requirements of the bill. However, the new regulations would guarantee that fly ash could still be used in beneficial ways.

Legislators should vote against the bill and allow MDE's regulations to take effect instead, Mr. Pattison said.

Energy industry groups also urged legislators to oppose the bill because it would limit how fly ash could be used.

"We believe also that the proposed regulations that MDE is developing on beneficial use will provide clarity and let the industry, both coal generators and users, (know) how the materials can be used," said David C. Goss, executive director of American Coal Ash Association, a Colorado-based organization.

He urged legislators to oppose the bill so that MDE's regulations could be implemented.

Environmental advocates and Gambrills-area residents praised Mr. McConkey and Mr. Holmes' bill as a good start and criticized Mr. Pattison's arguments regarding beneficial use.

"If you are mixing (fly ash) with dirt and using it to fill a hole, that is not a beneficial use," said Brad Heavner, state Director of Environment Maryland. Mixing fly ash with dirt is not safe, it will just dilute the problem, he said.

Madonna Brennan, co-chairman of Crofton First, a citizens' group that has followed the fly ash controversy, said MDE's regulations are "very industry heavy" and do not protect the environment or citizens.

Anne Arundel County officials also supported the bill, saying it would protect public health. They also asked that the bill include provisions that would allow counties to ban fly ash entirely, if they decided.

On Oct. 1, Anne Arundel County Council passed emergency legislation banning new fly ash dump sites for one year.