BGE fly-ash appeal rejected Clay liner required at Brandon Woods disposal site

October 02, 1998|By Cheryl Lu-Lien Tan | Cheryl Lu-Lien Tan,SUN STAFF

An Anne Arundel County judge denied Baltimore Gas and Electric Co.'s appeal yesterday of an order requiring the utility to spend $10 million on a clay liner to prevent fly ash from contaminating ground water on the Marley Neck peninsula.

Circuit Judge Ronald A. Silkworth upheld a January decision by the county Board of Appeals that required BGE to install the liner under about 150 acres of the Brandon Woods Business Park in Solley, where the company is placing more than 1.5 million tons of fly ash.

The board made the requirement after 15 hearings from March to October 1997, during which residents asked the board to rescind the county permit allowing the utility to use fly ash as structural fill on the site.

"BGE's assertion that the board lacked substantial evidence [in deciding to require the liner] is unsupported by the facts," Silkworth wrote. "The board had a multitude of facts upon which to base its decision. It found credible the potential risks to the ground water and drinking aquifer as a result of the disposal of fly ash on the site."

As word slowly spread through the tiny Solley community yesterday, residents were elated at their victory.

"It sort of ended up as this David and Goliath story," said Steve Donnelly, a member of the Coalition of Communities and Citizens Against Fly Ash, known as CCCAF, the group of residents that fought BGE in the board hearings. "But David won."

BGE representatives said they were shocked at Silkworth's decision.

"We're not happy with this," said Glenn P. Nilsen, a BGE senior engineer. "We don't think a liner is necessary for the site. The next step is to evaluate what course of action we're going to take."

Fly ash, a combination of chunks and fine dust, is a by-product of burning coal at BGE's Brandon Shores power plant off Fort Smallwood Road. BGE, which burns about 5 million tons of coal and produces 500,000 tons of fly ash annually, has placed ash on the site since 1982 and has built two phases of a business bTC park over a portion of the site.

The Board of Appeals battle began in late 1996 after Robert C. Wilcox, then the county administrative hearing officer, granted a special exception that allowed BGE to fill about 150 acres of a planned third phase of the business park with fly ash.

During the hearings, which lasted about three hours each, residents produced experts who testified that there is a high risk that water flowing through the fly ash would contaminate ground water under the site.

BGE at first said a natural layer of clay would prevent contamination, but the utility's geo-technical engineering expert, Barbara Cook, later acknowledged on cross-examination that the clay layer is "not continuous throughout the site."

The board upheld the special exception but ordered the liner.

The utility filed its appeal against the liner requirement in February, and both sides presented their arguments before Silkworth July 13.

Nilsen said BGE's managers and fly-ash team will meet within the next few days to discuss whether they will appeal Silkworth's ruling.

"Until we review it, it's not going to be possible to say what our course is going to be," he said.

BGE plans to build an ash processing facility that should limit the amount of ash the utility will place in Solley. When completed early next year, the facility will process fly ash into a product that can be used to make concrete.

The CCCAF also plans to meet soon to discuss how to pursue other issues that members say Silkworth didn't address in his decision. While he upheld the liner requirement, he let stand the special exception. CCCAF members had asked him to reject the zoning ruling, saying that fine fly-ash particles are contaminating the community's air.

Mary Rosso, president of CCCAF, said she wasn't sure whether the group would file an environmental lawsuit or talk to the Maryland Department of the Environment and the federal Environmental Protection Agency. "We're still trying to get air testing done on the area. It's going to be pursued," she said.

Pub Date: 10/02/98

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