In 2016, the Flower Branch Apartments in Silver Spring, Maryland explosion killed seven people and destroyed two buildings. (Photo: Jabin Botsford/Washington Post)
By Vicki Warren, Maryland Matters, May 28, 2020
Four years after a fatal explosion at a Silver Spring apartment complex, the Maryland Public Service Commission is trying to find a way to remedy the safety concerns surrounding the existence of mercury service regulators routinely found in homes and apartment buildings across the state.
The regulators, installed in buildings constructed before 1960, are used to stabilize gas pressure, but in April 2019, after a lengthy investigation, the National Transportation Safety Board determined it was the failure of a mercury service regulator that led to the explosion at the Flower Branch Apartments.
Seven people died in the accident on Aug. 10, 2016, including two children. Washington Gas, the utility provider responsible for maintaining the equipment continues to deny that the failure of a regulator led to the explosion and faults the NTSB findings.
The fact that the regulator was even inside the apartment building at Flower Branch exposed yet another failure.
Washington Gas had promised to remove and replace all mercury service regulators in its Maryland service area by 2013 and recovered a total of $1.962 million from ratepayers to do just that. The company also promised to report annually on its progress.
Yet during the proposed decade-long replacement period, the company filed only one report, in 2003, claiming 2,744 of the estimated 42,745 mercury regulators had been replaced.
The PSC is in the process of scheduling an evidentiary hearing on the mercury service replacement program. Testimony will be given by expert witnesses, but people and organizations who want to “intervene and participate” in the hearings need to sign up by May 29.
After NTSB released its findings and issued a number of recommendations to prevent future safety issues, the PSC directed Washington Gas officials to show why the company should not be held liable for violating state regulations requiring them to take reasonable care to reduce hazards to the public and furnish equipment that is safe. The PSC also asked the company to explain its failure to replace the regulators, file annual reports, and to show how the company planned to meet the safety recommendations proposed by the NTSB.
Washington Gas is resisting the suggestion that it be fined for failure to provide safe equipment and take reasonable care to protect the public, citing a federal statute that bars the use of any part of an NTSB accident report in an evidentiary hearing or in any action for damages. The company concluded in correspondence with the PSC in March, “In light of clear federal law, the Parties reliance here on the NTSB’s Pipeline Accident Report as a basis for imposition of penalties is misplaced.”
The company also asked the PSC to rescind its order directing Washington Gas to show why it should not be fined for failure to provide safe equipment and protect the public.
A spokesman for the company said Washington Gas “believes it has provided sufficient evidence to the Commission obviating the need for any civil penalties, with the limited exception of penalties associated with the missing annual reports.”
$36,500 vs. $9 million
For that infraction, the company suggested a penalty of $146,000 — $100 a day for the four years Washington Gas benefited from a rate change to replace the regulators.
That amount pales in comparison to the $9 million a year the Maryland Office of the People’s Counsel (OPC) had asked the PSC to fine Washington Gas. The OPC, representing consumers in Maryland in matters relating to utilities, maintained, “the Company’s inability to complete the replacement program on time potentially contributed to the death of seven people.”
The PSC concurred with the assessment by Washington Gas that the NTSB report cannot be used to levy damages and concluded that because Washington Gas has settled all claims with individual families for loss of life or injuries, the commission will not further investigate the cause of the Flower Branch explosion.
Instead, the PSC has decided to hold the hearing to resolve the unanswered questions surrounding the Washington Gas mercury service replacement program and to determine what fines and penalties are appropriate. The hearing will allow parties in the proceeding to have the ability to call expert witnesses, access documents through discovery and cross-examine those testifying.
Office of People’s Counsel Paula Carmody said the agency is looking forward to the proceeding.
“In the past we have not had the benefits of litigation, so the evidentiary hearing will give us new and better tools for accessing the facts surrounding the Washington Gas mercury service replacement program,” she said.
One fact the PSC is hoping to determine is exactly how many mercury service regulators remain inside dwellings across the state. Estimates provided by Washington Gas have varied in the past. Most recently the company stated that 95% of the 42,745 regulators estimated to be inside homes in 2003 have been removed. If that figure is accurate, there would be only 2,037 remaining.
The PSC also wants Washington Gas to describe its plans to complete the replacement program as outlined in 2002 and 2003. In its most recent filing with the commission, the company proposed an accelerated program that would identify all mercury regulators inside multi-family units in a year and have them removed within three years.
The existing regulators in single family homes would be identified within three years and removed in five. It is this process of surveying where regulators remain that Washington Gas has now said will finally answer the question of how many regulators still exist inside dwellings.
The accelerated program outlined by Washington Gas initially had a $32 million price tag, but that could change as Washington Gas cites the fact that a key driver in the cost is finding qualified contractors experienced in the collection and disposal of mercury.
As part of their evidentiary hearing, PSC commissioners want Washington Gas to determine who is going to pay for the replacement program and to answer whether funds from ratepayers collected for the replacement program were used for that purpose. Washington Gas insists the company “will seek cost recovery appropriate for the replacements as a component of its efforts to continue providing safe, reliable natural gas distribution service to its customers” — costs the people’s counsel and the Apartment and Office Building Association of Metropolitan Washington insist ratepayers should not have to bear.
To meet one of the NTSB safety recommendations, Washington Gas has said it will also allocate funds to move any replaced regulators to the outside of dwellings.
Prioritizing ‘our more vulnerable communities’
Creating a safer community based on meeting the NTSB recommendation has also been on the minds of legislators representing the Flower Branch community.
State Del. Lorig Charkoudian (D-Montgomery) introduced the Flower Branch Act in this year’s legislative session to require all new gas service regulators be installed outside; that regulators be moved to the outside of a building whenever a gas service regulator or line is replaced in a multi-family building; that gas companies establish and file a plan with the PSC to move all gas service regulators to the exterior of multi-family buildings; and that the PSC will report progress on these moves annually to the General Assembly.
The legislation passed in the House of Delegates, 97-41, but was not taken up in the Senate in the last days of the shortened session. Charkoudian intends to reintroduce the legislation next year.
“It is incumbent on us to both hold Washington Gas accountable, and to establish policies across the state to ensure safety in our system, prioritizing our older housing stock and our more vulnerable communities,” she said.
Washington Gas maintains the company prefers to have regulators outside buildings because it provides crews easier access, but added that in certain instances, it is not possible to install equipment outside and sometimes it is actually safer to install it inside.
The PSC expects the evidentiary hearing to be scheduled shortly after Friday’s deadline for parties to file to participate. It will be open to the public and may take place virtually.
Vicki Warren is a freelance reporter and documentary producer in Silver Spring. She can be reached at email@example.com