Fly ash settlement finalized

The Capital, December 31, 2008

A class-action lawsuit waged against Constellation Energy came to a close yesterday with a Baltimore judge approving an estimated $54.4 million settlement for fly ash dumped in a Gambrills mine.

Baltimore City Circuit Court Judge Alfred Nance approved an agreement between the plaintiffs and the electric company that provides, among other items, public water for households, $9.5 million to pay for property and health issues and $500,000 for community-beautification projects, all at Constellation's expense. The settlement affects residents from Summerfield, Queen Mitchell and Evergreen roads and the Chapel Gate Condominiums.

The plaintiff's lawyers also received $10 million in legal fees.

Hassan Murphy, managing partner of the Murphy Firm, one of the Baltimore firms representing the plaintiffs, said he is satisfied with the settlement.

"It went really well," he said. "I'm quite pleased, man, really happy.... The key for me is the public water for these 84 homes and the fact that ash will never be dumped there again."

The lawsuit, filed in November 2007, stated that

Constellation officials knew that millions of tons of fly ash it dumped into craters in a sand and gravel mine contaminated drinking water with chemicals like lead, arsenic and beryllium and other substances that can cause cancer and other health problems. However, the company failed to notify anyone of any risks, the lawsuit stated.

Baltimore Gas and Electric Co., and later Constellation, began dumping fly ash in Gambrills in 1995. The mine is owned by BBSS Inc., an affiliate of Reliable Contracting, a mining and paving company. Documents from Maryland Department of the Environment show traces of harmful materials appearing in groundwater in 1999. A county investigation that started in October 2006 eventually determined that fly ash was to blame.

Fly ash, a powdery gray byproduct from burning coal in power plants, came from the electric company's Brandon Shores plant.

Yesterday's approval means the lawsuit is over. From here, the settlement money will be handled by a claims administrator who will make sure people affected by the fly ash are appropriately compensated for any health or property issues.

Because of the contamination, Maryland fined Constellation $1 million in fall 2007 and Anne Arundel County enacted and later renewed one-year bans on new fly-ash dump sites.

In September 2007, Constellation stopped putting fly ash in the BBSS mine and began transporting it to Virginia. BBSS president Rob Scrivener also has promised never to put the substance on his company's property again.

Constellation is in the process of connecting homes to the county's public water system and should be done by 2010. Also, a plan to negate the environmental issues at and around the mine is being reviewed by the state, said Maureen Brown, a Constellation spokesman.

"We're pleased that a settlement was finalized and that it was beneficial to the residents," she said.

Last month, Maryland Department of the Environment announced new regulation for fly ash. The rules require liners in the bottom of fly ash landfills, leachate collection systems, groundwater monitoring and tests and fly ash dump sites.

However, the new state rules and multimillion dollar lawsuits do not protect public health as much as a total ban of fly-ash dumping, said County Executive John R. Leopold.

"It's the only fail-safe way to adequately protect public health," he said. "Unfortunately, scientists have said that the approach of liners and leachate collection is not fail-safe, an absolute guarantee that you will protect public health."

He said federal action is needed to make sure people are safe from the cancer-causing substances in fly ash.

In June, a congressional subcommittee held a hearing on what, if anything, the federal government needs to do to prevent public health risks from fly ash.

The settlement from the Gambrills case, which Mr. Murphy said was the first of its kind, came to a close as litigation begins on a massive fly-ash disaster in eastern Tennessee. On Dec. 22, an estimated 5.4 million cubic yards of fly ash broke from a earthen retention pond adjacent to a power plant, covered and spilled into Emory River. Homes were inundated with the substance and some areas near the spill were covered by as much as six feet of the substance. Hundreds of acres were affected, The New York Times reported.

Since the spill, residents there have been concerned about the health effects of fly ash exposure and technicians have tested water supplies for harmful substances.

According an article in today's Knoxville News Sentinel, the first lawsuit was filed yesterday by property owners who said the disaster ruined the scenery from their property and decreased its value.

The fly-ash situation in Gambrills, the shipping of fly ash across state lines and the disaster in Tennessee emphasize the need for federal regulation, Mr. Leopold said.

(Revised December 2008)