01:00 AM EDT on Monday, October 6, 2003

BOSTON -- The state's top environmental groups, supported by the Romney administration, are pushing a bill that advocates say would close a loophole in the state's law exempting coal ash from being termed "waste material," "refuse" or "garbage" when used for commercial or industrial purposes.

Rep. Mary Grant, D-Beverly, co-sponsor of the bill, said land erosion has caused ash to seep into the drinking water of some communities and could eventually imperil the public's health.

Specifically, North Shore residents relying on Wenham Lake for drinking water are concerned that coal ash has contaminated the watershed. "The cumulative effects of coal ash and the toxins in coal ash could be deadly," Grant said.

Representatives from North Shore towns and the South Coast filled a Statehouse hearing room last week, citing an urgent need for further regulation of the ash, a byproduct of coal burning from electrical power generation. "This stuff chokes the life out of the environment," said Jan Schlictmann, Beverly resident and president of the Wenham Watershed Association. In 1996, Schlictmann represented represented eight families various health problems including leukemia due to the contamination of Woburn's water supply.

In a letter submitted to the Natural Resources Committee, James C. Colman, assistant commissioner of the state Department of Environmental Protection, said the bill is "prospective in nature" and would have multiple positive effects on the environment.

Colman said industry and environmental officials contributed the bill's drafting, and noted it includes exemptions for safe reuses of coal ash in concrete, asphalt and cement products. "All parties agree that, at a minimum, the existing loophole in state law should be closed as soon as possible," Colman wrote.

Environmentalists say Wenham Lake is on top of three to six feet of power- plant waste from the nearby Salem Harbor plant. In comparison, Freetown has had nearly 4 million tons of ash dumped in the town since 1976, said Lori Ehrlich of Health Links, a North Shore environmental advocacy group.

Freetown residents say that before the town passed a local ordinance banning the dumping of coal ash several years ago, more than 80 truckloads would dirty the streets and pollute the air of the coastal town daily.

Activists are calling for statewide action to prevent the ash being used as a "structural fill," what environmentalists say is its most dangerous form.

Massachusetts annually generates more than 600,000 tons of coal ash; 130 tons are generated nationwide each year. The ash is known to contain arsenic, mercury, chromium and barium, all damaging to the nervous system and can be cancer-causing agents, said Lisa Evans, counsel for the Clean Air Task Force.

But manufacturers, who have built a business on recycling the product, said this bill is "misguided and wrong." Gene Bernat, vice president of Cover Technologies Inc., a recycler of coal ash, said he was "offended" by the bill and the assertions that his business would be considered a "waste."

"Every product has the ability to be a waste, but they're only a waste when they're managed improperly," Bernat said. "This bill scares the hell out of me. Is something else I do going to be considered a waste tomorrow?"

Coal ash is typically recycled in "flowable" form, Bernat said, such as cement or asphalt. The legislation would outlaw the use of it as fill, or the dumping of ash in landfills without a local health board's approval.

But Bernat, backed by Associated Industries of Massachusetts (AIM), is still concerned that the name change will hurt business.

"Very few people have an appetite for a product classified as a waste," Bernat said. "The perceived waste impedes my ability to effectively market my product."

Representatives from both sides of the issue did agree that some oversight was needed of the toxic byproduct, but what to call the often hazardous substance remains the question, and the issue for the committee to decide, said the committee chairman, William Greene, D-Billerica.

"We need to worry about how it's handled, and not about the semantics of how it's labeled," said Brent Baeslack, of the Haverhill Environmental League.