Sierra Club’s Coal Ash Gambit

Coal ash pond at the Chesapeake Energy Center

Coal ash pond at the Chesapeake Energy Center

by James A. Bacon

The Sierra Club has filed a lawsuit charging that coal ash stored at Dominion Virginia Power’s shuttered coal plant in Chesapeake is leaking arsenic into the Elizabeth River. The environmental organization wants the U.S. courts to compel Dominion to scrap plans for burying the coal ash in place at four power stations around the state and to truck the material to lined landfills instead.

Earlier today, attorneys for the environmental group began presenting their case in the Richmond courtroom of U.S. District Court Judge John A. Gibney, advancing the argument that unsafe levels of arsenic found in sediment samples originated from underground water that migrated through the coal ash pits.

“These discharges of arsenic will continue indefinitely with no end in sight,” said Deborah Murray, the attorney representing the Sierra Club. “The only way to stop the pollution is to remove the ash to a lined landfill.”

Dominion countered that the Sierra Club’s arguments are totally unproven. The organization cherry picked “snippets” from the voluminous testing data filed with Virginia’s Department of Environmental Quality (DEQ), wore “blinders” to the mountain of evidence showing that water quality complies with the law, and offered a “tortured interpretation” of how the arsenic got from the coal ash to the surrounding waters, argued Dabney Carr for Dominion.

DEQ has consistently found Dominion to be in compliance over four decades, said Carr. “The goal of this suit is to overturn DEQ’s decision,” he added, addressing the judge. “The Sierra Club is asking you to substitute your judgment for the DEQ’s judgment.”

Dominion has been accumulating coal ash, the mineral residue from coal combustion, at the Chesapeake Energy Center for decades. Like other utilities, the company mixed it with water to keep the dust down and stored the material in lagoons. After years of study, the Environmental Protection Agency issued new standards last year for cleaning up coal ash. The first step is to de-water the ash, treat the water, and discharge it into rivers and streams. For the most part, Dominion has reached agreement with DEQ and environmental groups on how to do that.

The second step is to store the coal ash in a place where it will not continue to contaminate water supplies. Dominion proposes to consolidate the residue and cap it with an impermeable lining to prevent the infiltration of rain water. DEQ is studying those permits now.

Contending that a cap does nothing to stop the infiltration of groundwater, environmental groups have pushed Dominion to truck the material to lined landfills — a project that Dominion estimates would cost $3 billion. While some environmental groups focus their efforts on DEQ, the Sierra Club is going the federal route. The organization believes the lawsuit against Dominion is the first challenge of its kind to the Clean Water Act. If the group wins the case, it will set a precedent not only for all four of Dominion’s coal ash sites but for power companies across the country.

While the implications are national, the facts of the case are highly localized. And, as was clear from Murray’s presentation, Sierra Club’s case is circumstantial.

The Chesapeake facility sits upon land comprised of loose and sandy soils that allow water to travel through easily. The coal ash ranges from 15 to 30 feet thick, and the bottom of the pile varies in elevation from 16 feet above sea level to six feet below. A liner was placed between the disposal site and the ground but it is leaking, Murray said.

However, when asked by Judge Gibney how she knew the liner was leaking, she had no persuasive response.

The key evidence presented for the accumulation of arsenic came from a 2010 report commissioned by Dominion that analyzed sediment “cores” — cylindrical-shaped samples of creek and river bottom — to determine if there was “natural attenuation” of arsenic. (Natural attenuation is when nature takes care of the problem, in this case by binding the arsenic with iron to form a harmless substance.) Five of the samples at a depth of zero to three inches contained arsenic in excess of the permitted level of 36 micrograms per liter.

The Sierra Club cherry picked these data points from mountains of data collected from samples taken twice a year over decades, countered Carr. All tests of surface water, as opposed to sediment, have indicated arsenic levels at concentrations well below drinking water standards. Every water sample — 73 taken over the past thirteen years — were well below Virginia and EPA water quality standards for arsenic. Said Carr: “There is no evidence of arsenic in the surface waters.”

Where did the arsenic in the sediment come from if not from the nearby coal ash pits? Dozens of other industries release discharges in the Elizabeth River, said Carr, and some are known to release arsenic. The Sierra Club has offered no proof that the arsenic levels in found in the sediment differs from those elsewhere in the river. The group has conducted none of its own research and offers no additional evidence. It relied entirely upon data that DEQ used to find Dominion in compliance with the Clean Water Act — “the very same data and information DEQ has relied upon to conclude that Dominion is in compliance with its permit at CEC (the Chesapeake Energy Center).”

Bikes, Bees, Beauty

lowline2

by James A. Bacon

New York City has its High Line park built upon an abandoned, elevated freight rail line. The City of Richmond has its Low Line park, built underneath CSX Corp. railroad trestles.

In the seven years since opening to great fanfare, Manhattan’s High Line has attracted millions of visitors and inspired the construction of nearly 1,400 housing units along its two-mile route. By contrast, the opening of Richmond’s Low Line has been decidedly low key, and no one is expecting it to become a magnet for real estate development. But the Low Line could well become an integral part of Richmond’s park system and spur reclamation of the riverfront.

The vision for the $6 million project calls for flower plots with benches, covered walkways beneath the trestles, rain gardens along the Kanawha Canal, and trees shading HOW MANY?? hundred yards of bike path. Capital Trees, a not-for-profit organized to promote urban greening, has committed to fund the ongoing maintenance.

A year ago, the area was an overgrown ruin, neglected by CSX and the City of Richmond, which shared ownership of the land for more than a century. Located in the flood plain, the property had little value. No one had reason to invest in it or even care about it.

“There was no advocate for this area. It was blighted,” says Susan Robertson, co-chair of Capital Trees. “People would ride on the canal boats from the manicured, renovated canal walk [in Shockoe Bottom] and encounter a scene with invasive weeds and trees. From June through November, you couldn’t see the canal [from the land].”

When the Low Line is complete, it will knit together a cluster of recreational assets including the Richmond terminus of the 52-mile Capital Trail, the Great Shiplock Park, the Kanawha Canal, and Chapel Island with its trails and kayak launch. The Low Line also will provide an amenity for the 1,500 residents of Tobacco Row apartments and condominiums on the far side of the flood wall.

“It’s so great,” Victoria Hedegger, a Tobacco Row resident, said recently while walking her new-born in a stroller. “It was nice before. Now it’s even nicer. [The gardens] make the trail so much more attractive.”

Before Capital Trees got involved, this was the view from the Capital Trails bike path.

Before Capital Trees got involved, this was the view from the Capital Trails bike path.

Capital Trees originated as a collaboration between the Richmond region’s four garden clubs in the expectation that they could undertake projects with greater impact if they worked together. The new generation of garden club leaders aren’t content with traditional beautification projects. They are exploring the intersection of beautification, conservation, storm water management and urban place making.

In its early incarnation, the group worked with city officials to reform the urban tree-planting program. Then it spear-headed the building of rain gardens on 14th street in Richmond’s downtown to control storm water runoff. With each success, Capital Trees’ projects became more ambitious.

In 2011 Lynda Miller, head of New York City’s Central Park Conservancy, visited Richmond to describe how volunteers had reclaimed part of Central Park. “She told use we could tackle big, important projects that can make our lives better, recalls Clare Osdene Schapiro, a Richmond Times-Dispatch writer active in the organization. Continue reading

A Once-in-a-Century Opportunity to Get Transportation Right

Photo credit: Wall Street Journal

Photo credit: Wall Street Journal

by James A. Bacon

Take the Uber revolution of summoning rides with a smart phone. Then add driverless cars, which eliminate the expense of paying someone to drive the car. Then overlay the emerging business model of Transportation As a Service, in which people pay for rides when they need them rather than buy cars that sit idle 90% of the day, often incurring parking fees in the process. Shared self-driving cars could take up to 80% of all vehicles off the road, according to a Massachusetts Institute of Technology study noted in a Wall Street Journal thought piece by Christopher Mims.

How would the impact of such an eventuality ripple through the rest of the economy? While acknowledging that such things are impossible to predict, Mims speculates that shared, self-driving cars will spur “suburban sprawl.”

Nearly everyone who has studied the subject believes these self-driving fleets will be significantly cheaper than owning a car…. With the savings you will be able to escape your cramped apartment in the city for a bigger spread farther away, offering more peace and quiet, and better schools for the children.

As for the putative preference the Millennial generation has for living in the city, writes Mims, it’s a myth. “Not only do 66% of millennials tell pollsters they want to live in the suburbs, they are moving there, as population growth in suburbs outstrips growth in cities.”

I don’t agree with Mims’ conclusion, but these are ideas worth exploring. I’m most intrigued by the MIT forecast that the shared, driverless-car future will take 80% of all vehicles off the road. For purposes of argument, let’s say that shared, driverless cars take only half of all vehicles off the road. That’s still an astounding number.

My first question is this: Will the streets, roads and highways in a world of shared, driverless cars be less crowded? To answer that, we must distinguish between the number of vehicles and the number of trips taken. Unless people take fewer trips, they still will need means of conveyance. If everyone rides solo cars, the country may need fewer cars but there will not be fewer cars on the road. Only if people share rides — either in conventional cars, vans or micro-buses like the one pictured above — will there be a need for fewer cars on the road. I think it’s possible that we’ll see fewer cars on the road, but no one can make such a prediction with any confidence.

Here’s what we can predict: A shift to shared, driverless cars will reduce the number of vehicles needed to serve the population. To the extent that fleet operating companies maximize the asset value of their fleets by running them 24/7, most cars will be on the streets (or in maintenance garages or recharge stations) instead of sitting in parking lots and parking decks. The most confident prediction we can make is that America will need fewer parking spaces.

Shrinking acreage dedicated to parking will have a profound impact on human settlement patterns. While it will free up some land in densely settled urban areas — putting a lot of parking garages out of business — the biggest impact will be in the scattered, low-density areas we think of as suburbia. Millions of acres of parking lots across the country will become redundant and unnecessary.

If localities are intelligent enough to eliminate minimum parking requirements, retailers would have every incentive to convert acres of land into something useful — offices, townhouses, apartments, parks, whatever. So much land would be freed up from redundant parking lots that there would be no need to develop another acre of greenfield land for another generation. Localities that anticipate this opportunity by revising their comprehensive plans and zoning codes will enjoy a huge advantage over the laggards in attracting new development.

Now, back to Mims’ observation that Millennials prefer “the suburbs” by two to one over “the city.” That’s a meaningless statement. True, young families may prefer so-called “suburban” jurisdictions with quality school systems, but the operative factor is the quality of the schools, not the low-density and auto-centric design of the communities. Other research shows that Millennials also prefer walkable, bikeable communities. The preference for good schools may be stronger, but that doesn’t mean the Millennials wouldn’t jump at the chance to live in a community that offered both good schools and walkable-bikable places.

In contrast to Mims, I do not think that shared, driverless cars will spur more of the scattered, disconnected, low-density that we call “suburban sprawl.” To the contrary, I believe it will stimulate the redevelopment of low-density, auto-centric communities into walkable urban places.

Localities across Virginia will enjoy a once-in-a-century opportunity to convert parking lots into taxable development without incurring the offsetting liability of needing to upgrade the transportation infrastructure to support the denser population. But this will happen only if they stop mandating parking lot requirements and revise their comprehensive plans and zoning codes to accommodate the new possibilities.

Likewise, the Commonwealth of Virginia, which once again (and as predicted) finds itself short of dollars to fund the roads, highways and rail systems, needs to re-think the twenty-year future. The transportation infrastructure of the 21st century will be Uber-fied. Throw out all long-range traffic projections! Rather than sinking hundreds of millions of dollars into expensive new highways, light-rail rail and Bus Rapid Transit systems, we need to start thinking what kind of investments will expedite the coming of shared, driverless cars.

States and localities that work out the solution first will be winners. Those that stick to the current transportation paradigm will lose.

A Different Kind of Police-Kill-Unarmed-Black-Youth Story

Brown and Cobb

Paterson Brown Jr. and David L. Cobb. Photo credit: Richmond Times-Dispatch

by James A. Bacon

Chesterfield County has its own cop-shooting-and-killing-an-unarmed-black-youth story, but it has generated little controversy — presumably because the police officer was himself black, thus side-stepping the racist-white-cop narrative. It is instructive to read the account of court testimony in the policeman’s trial to get a sense of the ambiguous situations in which police find themselves forced to make life-and-death decisions.

Here are the basic facts based on the Richmond Times-Dispatch‘s coverage of the trial: David L. Cobb, an off-duty, 47-year-old Chesterfield police officer, was getting his girlfriend’s car washed at the Better Vision Detail & Car Spa on Midlothian Turnpike when 18-year-old Paterson Brown Jr. inexplicably hopped into the vehicle. Cobb confronted Brown, struggling to open the door as Brown tried to close it. Observing that the teenager was acting strangely and incoherently, apparently from drug use, Cobb announced that he was a police officer and warned him four times to stay still. At one point, Brown leaned back and said, “I don’t f— with cops” but he did not comply. When Brown moved his left hand across his waist, Cobb believed that he was reaching for a gun. He shot the youth in the pelvis, severing a vital artery and killing him. As it turned out the youth was unarmed.

The prosecutor argued that Brown’s act of reaching across the waist “does not give you the right to use deadly force.”

But David Baugh, a black attorney who has represented five other Richmond-area officers in use-of-force killings, countered that every officer (1) is responsible for stopping a crime when he or she sees it, and (2) fears for his or her life when approaching a vehicle.

“He doesn’t have a right to walk away,” Baugh said. “He took an oath. It’s his moral duty to stick his nose in it.” To convict Cobb, he told the jury, prosecutors “have to convince you there’s no reason to be scared.” Brown set the tone with his bizzare behavior, glaring at Cobb after the officer spotted him inside the car. “Is he reasonable to be fearful? Yes. [Officers] all know.”

Bacon’s bottom line: Police officers have every reason to fear that young men acting strangely and actively resisting direct commands might pull out a gun and shoot. Forty-five law enforcement personnel, two of them in Virginia, have been killed in the line of duty so far this year. Cobb had to make a split-second decision. He made the wrong decision. Indeed, Cobb was so remorseful that he broke down sobbing while testifying in court and the judge had to suspend proceedings for ten minutes while he composed himself. But Cobb did not create the situation. Brown did. And, while his death was tragic and out of proportion to anything he did wrong, he brought it upon himself.

After a two-decade decline, violent crime is on the upswing. Ironically, most of it is black-on-black crime — a perverse result of the “Ferguson effect” in which police dial back their interventions and the Black Lives Matter movement which has encouraged black youths to distrust police and resist arrest. To revive a phrase from the 1960s, I’m on the side of “law and order.” If I were on Cobb’s jury, I would not vote to convict. And, if the T-D‘s account is fair summary of the facts presented, I’ll bet his jury won’t either.

Civil Rights for Me, Not for Thee

Justice-free zone?

Justice-free zone?

A former University of Virginia law student filed a federal lawsuit yesterday alleging that the university, following guidelines issued by the federal Office of Civil Rights, violated his due process when finding him responsible for sexual misconduct with an intoxicated student and banned him from the university.

According to the suit, a retired judge serving as fact-finder in the U.Va proceeding found that the plaintiff, identified only as “John Doe,” did not have “effective consent” when he had sex in August 2013 with a fellow law student, “Jane Doe” on the grounds of her alcohol consumption. The judge, who called the decision “very close,” was required by the Office of Civil Rights to use the “preponderance of the evidence” standard of proof rather than the stronger “clear and convincing” standard.

John Doe was found responsible for the incident and sanctioned with a life-time ban and four months of counseling. He received his degree but has not yet been admitted to the bar and cannot practice law, reports the Richmond Times-Dispatch.

Bacon’s bottom line: Details from the news account, and presumably the lawsuit itself, are so meager that it is impossible for a reader to draw strong conclusions about the incident itself. We don’t know how drunk the woman was, how drunk the man was, or what communication may have transpired between the two. If the woman passed out and John Doe had sex with her, he should be charged with rape and, if convicted, sent to prison to serve a sentence between five years and life as called for in the Virginia penal code. If they had both been drinking heavily, engaged in sex and the woman later regretted the act, he shouldn’t suffer punishment at all.

Most likely, the circumstances were more ambiguous that those two examples. Regardless, it seems that the system of administrative justice imposed by the Office of Civil Rights likely led to a miscarriage of justice. If a real rape occurred, John Doe got off easy. If the incident was a case of mutually agreeable drunken sex, he shouldn’t be punished at all. Because the incident occurred in a university environment, the normal rules of criminal procedure were suspended in order to achieve a politically driven result dictated by Washington.

— JAB

Maryland Drops Coal Ash Appeal

The coal ash ponds at Possum Point

The coal ash ponds at Possum Point

The state of Maryland has dropped its appeal of permits granted to Dominion Virginia Power for discharging treated water from its Possum Point Power Station coal ash ponds into Quantico Creek and the Potomac River.

“Maryland is supportive of recent agreements in Virginia to increase wastewater treatment protections and monitoring protocols,” Ben Grumbles, Maryland’s secretary of the environment, said in a statement. “We are engaged in and encouraged by the ongoing discussions with Virginia and Dominion to do even more testing for fish tissue, water quality and sediment in the river beyond the current testing and monitoring in current or soon-to-be-proposed permits.”

Jay Apperson, a spokesman for the department, cited Dominion’s commitments to enhanced treatment of the water drawn from coal ash ponds and to specifications that meet or exceed Maryland’s water quality standards, reports the Richmond Times-Dispatch. He continued:

Moreover, Virginia DEQ has pledged to draft a stringent and comprehensive solid waste permit for the Dominion facility that incorporates all federal requirements. Virginia DEQ has further discussed its intent to engage Maryland during this permitting process as groundwater monitoring and surface water monitoring safeguards are included to protect Quantico Creek and the Potomac River.

The only group persisting in an appeal of the coal ash water-discharge permits is the Potomac Riverkeeper Network.

Bacon’s bottom line: The big remaining issue is how Dominion will dispose of the coal ash itself. Dominion has applied for permits to consolidate the material in capped pits on-site, asserting that the alternative preferred by environmentalists — trucking it to lined landfills — would cost $3 billion more. The statements from Maryland’s Department of the Environment suggests that Maryland has taken part in intensive, behind-the-scenes negotiations with Virginia DEQ, as Virginia regulators decide whether to grant the solid waste permits or not.

— JAB

Health Insurance Rates Up 16% Next Year

obamacareThe Affordable Care Act isn’t looking so affordable. Health insurance plans in the Affordable Care Act’s Virginia marketplace could increase in cost by an average of 16% next year, reports the Richmond Times-Dispatch. The numbers are based upon rate changes that insurers have submitted to the Bureau of Insurance ahead of a State Corporation Commission hearing.

The increases are roughly in line with the 11% average increase expected nationally based on a Kaiser Foundation survey of 14 major cities. Richmond, one of the cities surveyed, actually fares better than the state and national averages with an increase of benchmark silver plans of only 6%. Presumably, other parts of the commonwealth are faring worse.

What’s going on? In a word, adverse selection. Sick people who anticipate big medical bills are signing up while healthier people are paying the penalties (or taxes, depending upon your legal context) for not participating and then enrolling when they need the coverage.

Or as Doug Gray, executive director of the Virginia Association of Health Plans, put it to Katie Demeria with the T-D: “The problem is we haven’t gotten all the healthy people, but we have gotten most of the sick people.”

The problem was widely anticipated. Indeed, the Affordable Care Act attempted to forestall adverse selection by imposing penalties/taxes on uninsured Americans who declined to enroll. But it turns out that the incentives were not harsh enough. (It would be interesting to know how aggressively the Obama administration is enforcing the provision — strict enforcement could create a political backlash.)

Obamacare advocates said that other provisions in the legislation would keep costs under control. They don’t appear to be working. The big question now is whether the Affordable Care Act is in a death spiral — and what comes after it collapses. Does Virginia have an answer?

— JAB