BGE seeks to reverse order for $10M liner Clay barrier required by Board of Appeals

July 14, 1998|By Cheryl Lu-Lien Tan | Cheryl Lu-Lien Tan,SUN STAFF

Baltimore Gas and Electric Co. asked an Anne Arundel judge yesterday to throw out an order requiring the utility to spend $10 million to prevent fly ash from contaminating ground water in the Solley community.

The hearing before District Judge Ronald A. Silkworth was the latest step in the long-running battle by Solley residents to stop the utility giant from using millions of tons of fly ash -- a byproduct of burning coal for electricity -- as fill under its Brandon Woods Business Park.

The residents also claim that fly ash -- a powdery, gray substance that floats easily in air -- is a potential respiratory hazard. BGE says its use of fly ash is safe. Yesterday, the argument centered mostly on whether a liner is necessary to protect the community's drinking water.

In January, the county Board of Appeals ordered BGE to install a $10 million clay liner under the fly ash fill.

But yesterday, BGE attorney Ed Lechowitz said the Board of Appeals' order was arbitrary and that a clay liner would not solve the problem of contamination -- if such contamination existed, which the utility disputes.

"There is no evidence that this is the type of liner that should be imposed, if any is to be imposed," he said.

Yesterday's 2 1/2 -hour hearing has extended a debate over BGE's fly-ash disposal site along Solley Road in northern Anne Arundel County that has spanned almost 16 years.

Since the utility began using 3 million tons of fly ash as fill on which to build a three-section business park in the community in 1982, residents have been worried about its impact on their health and environment.

BGE, which burns about 5 million tons of coal a year -- producing 500,000 tons of fly ash -- drew heated criticism from residents when the third section of the business park started going up about five years ago.

Residents are fighting to get building permits for the third section rescinded, or to have the state or EPA require more stringent permits.

During yesterday's hearing, attorneys on both sides discussed at length whether the county Board of Appeals had the right to issue the order. The board made its decision after more than seven months of hearings of at least three hours each.

Deborah Jennings, another of BGE's attorneys, stressed that the state Department of the Environment had not required any form of clay liner in the past. She described the board as "a group of people who were well-intended but don't see these kinds of issues every day" and who "responded to scare tactics" by the residents' lawyers.

"I think the board went off on a tangent and thought it was doing the right thing" in requiring the liner, Jennings said. "But [the board] didn't really understand the context under which it was operating."

John B. Britton, who represented the residents, bristled at Jennings' statements.

"I took offense and I bet the community takes offense," Britton said. "This community is not irrational. They've spent a lot of money getting experts" who testify that the site has a potential negative impact on the community's environment.

Britton repeatedly stressed the need for a clay liner to protect an aquifer under the BGE disposal site.

He argued that the existing natural clay layer that separates the fly ash fill from the aquifer is "not impermeable, nor is it continuous."

Britton also asked why BGE has not done air monitoring in the area.

"BGE has not presented any affirmative evidence showing that they do not impact air quality," Britton said. "There has been no comprehensive air analysis at all."

BGE spokeswoman Kathleen Nolan said she was frustrated that Britton brought up issues unrelated to what the appeal essentially is about -- the clay liner requirement.

"I felt like a lot of other peripheral issues were put on the table that had previously been discussed and dismissed" at the board hearings, Nolan said. "This was their excuse to get into other issues as well. But certainly this was an opportunity for us to stipulate why we believe this condition should be stricken."

The judge is expected to make his decision in a few weeks. In the meantime, each side said it is confident it will prevail.

"Our arguments are the greatest," Britton said, "so I expect the judge to rule in our favor."

Pub Date: 7/14/98

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