Maryland environmental officials have sent a stern letter to Energy Answers International Inc., giving the Albany, N.Y.-based company until December 7 to submit proof that its license for the proposed Fairfield Incinerator in South Baltimore has not expired.

The Brew reported on Monday that community and environmental groups, who have been battling the project for years, were pressing the state to kill the proposed plant.

The groups have argued that by allowing more than 18 months to pass without doing any substantial work onsite, the company had let its “Certificate of Public Convenience and Necessity” lapse.

State officials appear inclined to agree, judging by the language in the letter.

“According to our records, over six years have passed since the original approvals were issued for this project without any substantive construction beyond the pile driving. . . which ceased on Oct. 31, 2013,” says the letter, dated yesterday and signed by Maryland Department of the Environment’s Benjamin H. Grumbles.

“I recall your aim was to secure financing by the end of this year so that construction beyond what has taken place can occur,” Grumbles writes. “It is this point, the degree of construction activity, that has become a significant issue at this time and is the reason for this update by MDE.”

But MDE’s letter, which opponents called a positive step, falls short of the outright declaration they are seeking that the project is dead.

“Thousands of Marylanders have been calling upon MDE to enforce the law – the facts are clear – and now it’s time for swift action.” said Gregory Sawtell, an organizers with United Workers.

Clean Air Act Cited

In his letter, Grumbles says that “the last possible date by which any construction activity can be supported is November 3, 2015.” That deadline takes into account other factors, including MDE’s seven-month stop-work order in 2014.

By their reckoning, opponents say the company needed to resume construction before May 1, and that MDE’s November cutoff date gives Energy Answers a break on legal provisions the company has already violated.

“It is good to see MDE recognize that Energy Answers has not performed any construction since October 31 2013,” Sawtell said. “But allowing Energy Answers any additional time due to their own violation of the law would be totally unacceptable.”

United Workers, the D.C.-based Environmental Integrity Project and the other incinerator opponents say the 18-month “clock” should not have been stopped as the result of the stop-work, since the delay resulted from another violation of the terms of the company’s permit.

“Energy Answers was in control of the duration of the stop work order and could have taken action to lift the order much earlier,” Sawtell said.

Grumbles’ letter, addressed to company president Patrick F. Mahoney, asks for documentation showing that before November 3 “Energy Answers has (1) begun or caused to begin a continuous program of actual onsite construction of the Fairfield facility or (2) entered into a binding agreement that cannot be canceled without substantial loss to Energy Answers.”

Energy Answers officials have not responded to several requests for comment from The Brew.

But the MDE letter provides some idea of the position the company has taken with Maryland regulators previously. In addition to the stop-work order, Energy Answers has cited the permit they have obtained to crush concrete existing at the site, and said that they “intend to use the crushed material around the property to elevate utility lines.”

But the MDE responds saying “the design effort and the foundation activity, although positive in their occurrence, are not considered adequate to satisfy the requirements of construction and completing construction in a reasonable time.”

“’Construction’ has a specific meaning under the federal Clean Air Act rules governing the project,” Grumbles continues, “and a review of available case law and federal guidance finds that the type of activity that has taken place to date would not meet the definition of construction.”

The letter urges Energy Answers to respond in order to ensure that the department’s records are “up to date” regarding the Fairfield project – before the Department “takes any official action in this matter.”