Fly-ash legislation propelled by Tennessee disaster

Published February 11, 2009

Last year, it died in a state committee. 

And in Washington, D.C., congressmen left a hearing room en masse, leaving just two colleagues behind. 

But now it might have some staying power. 

A major disaster late last year in Tennessee has given fly-ash legislation traction in the General Assembly and caught Congress' attention as well.

State lawmakers previously have balked at regulating fly ash, a gray byproduct from coal power plants that became a concern locally in 2006, when it was revealed that the substance was contaminating groundwater in Gambrills.

A bill proposed last year by Del. Tony McConkey, R-Severna Park, would have required fly-ash pits to have liners and covers. It died in committee.

And in September, the first fly-ash hearing in a House of Representatives committee in at least a decade was attended by few congressmen. Of those who did attend, many quickly left, putting a freshman legislator in the chairman's seat at one point.

But this time a new bill follows a catastrophe that has transformed fly ash - which looks and feels like dirt - into something more emotional, flashy and politically relevant.

On Dec. 22 in Tennessee, a 40-acre holding pond filled with fly-ash slurry burst, sending more than a billion gallons of waste into the surrounding area. It covered more than 300 acres, destroyed homes and polluted a river. The disaster, which
occurred in Kingston, a town 30 miles west of Knoxville, was front-page news across the country.

Two weeks after the disaster, the U.S. Senate Committee on Environment and Public Works held a hearing on it and Sen. Barbara Boxer, D-Calif., urged federal regulation of fly ash.

"We need to have standards in place to make certain that coal ash is managed and disposed of properly," she said.

Tomorrow, the issue will be before the House for the second time in a year when the Energy and Mineral Resources Subcommittee holds a hearing to evaluate fly-ash dumps.

Meanwhile, the state Environmental Matters Committee considered one fly-ash bill last week, and another piece of
legislation is on the way.

"I haven't seen other (fly-ash) legislation, but I would anticipate some more" because of the Tennessee disaster, said Steve Pattison, assistant secretary of the Maryland Department of the Environment.

In addition, the MDE and the federal Environmental Protection Agency are looking at the issue, determining what, if anything, needs to be done.

At last week's hearing, attention was drawn to what happened in Tennessee to urge legislators to act quickly in Maryland.

"Startling images from the Tennessee fly-ash disaster, the experience in Gambrills and the outstanding issues remaining with the current regulatory environment all clearly point to a needed legislative framework to move forward on this critical issue,"
said Tim Berkoff, environmental committee chairman for Crofton First, a group that has followed the fly-ash issue.

The hearing focused on fly-ash legislation was proposed by the Cecil County delegation, and Anne Arundel County has a bill in the works as well. This time, it seems the bills have some support from legislators.

The Cecil County legislation changes the way fly-ash pits are permitted, putting them more on par with rubble landfills and other solid waste dumps. Additionally, it would let counties decide if fly-ash dumps are allowed within their Critical Areas,
environmentally sensitive areas near shorelines. At the hearing, Del. Cheryl D. Glenn, D-Baltimore, said the entire Baltimore City delegation intended to support the bill.

But Pattison said the legislation isn't necessary because regulations created by the MDE essentially do the same thing.

Other legislators said that existing statutes - rules like the ones created by the MDE - are enacted all the time. This doesn't seem to do any damage, they maintain.

"It doesn't seem like it would hurt anybody, that it would hurt the public," said Del. Anne Healey, D-Prince George's.

The Anne Arundel County delegation is expected to soon introduce its fly-ash bill, which will require airborne protections and other regulations.

County Executive John R. Leopold wants legislation that expands the rules MDE just wrote, adding provisions to protect air quality and other measures.

The fly-ash issue became a county concern a few years ago after an investigation determined that the substance, the byproduct of burning coal in power plants, leached into underground streams, polluting the water supply with carcinogens.  The Baltimore Gas and Electric Co. and later Constellation Energy began putting fly ash into a sand-and-gravel mine in Gambrills in 1995.

As early as 1999 there were indications that the groundwater was being contaminated by the substance, but nothing was done at the time. In October 2006, the county Health Department began an investigation and determined that fly ash was the cause.

Eventually the state fined Constellation $1 million, and the settlement of a class action lawsuit gave an estimated $54 million to affected homeowners.