City Bats Next in Coal Terminal Trial

Judge Challenges City to Explain Health Conclusions Without Air Quality Modeling

Judge Vince Chhabria ended day two of the Oakland coal trial by challenging the City to show how it reached conclusions about air quality impacts in the health of residents in West Oakland without doing modelling that would quantify the likely concentration of pollutants in neighborhood air that would result from coal handling at the proposed West Gateway coal terminal.

After a day off from trial, the City will begin presentation of its case on Friday at 10 a.m. and hopes to call Dr. Andrew Gray, an air quality expert, to testify on air dispersion modeling of pollutants that would impact neighborhoods in West Oakland if coal operations get underway. By presenting an air quality model showing how much pollution will reach West Oakland, Gray will “confirm” the City’s conclusions that a coal terminal will result in substantial danger to the health of nearby neighbors.

But the judge isn’t sure Gray’s testimony can be considered.

“I am having a hard time now,” said Judge Chhabria in response to the City’s proposal to call Gray on Friday. “I don’t see how it would be appropriate for me to consider that. Both sides have agreed that what matters is what was before the City Council. There was no modelling done that was before the City Council. I don’t see how I can consider that.”

City Examines ESA Project Manager

Yesterday’s proceeding started with City wrapping up its examination of Victoria Evans, the project manager for Environmental Science Associates (ESA), an environmental science and planning firm hired by the City to summarize and evaluate the evidence received by the City at its public hearing.

Evans testified that ESA reviewed a report on coal dust by Daniel Jaffe, professor of Atmospheric and Environmental Chemistry at the University of Washington. Jaffe’s report was cited in 10 comments received by the City and may have been the only scientific study that was available to the City when it considered the potential health and safety impacts of coal.

A team of scientists led by Jaffe carried out a study of pollution emitted from coal trains and freight trains in the Columbia River Gorge. The study examined emissions of diesel particulate matter and coal dust from 293 freight trains and 74 coal trains during a two-month period.

Videos of some coal trains revealed large black plumes of coal dust blowing from the uncovered coal cars. The results showed that coal trains emit nearly twice the amount of fine-particle pollution, called PM 2.5, compared to other kinds of trains.

On cross-examination by the developer’s attorney, Evans agreed that Professor Jaffe’s study involved subbituminous coal from the Powder River Basin, a type of coal that is much dustier than Utah bituminous coal. The developer, Oakland Bulk and Oversized Terminal LLC (OBOT), raised doubts about whether the Jaffe study could be relied upon by ESA and the City because of the differences in these two types of coal.

Judge Chhabria had questions of his own for Evans. The judge asked her whether ESA’s report assumed that the Bay Area Air Quality Management District (BAAQMD) would impose controls to limit air quality impacts. Evans responded that ESA assumed the on-site controls described in the Basis of Design submitted by Terminal Logistics Solutions, the wholly owned subsidiary of coal company Bowie Resource Partners. However she added that the Air District can regulate trucks, but not trains, sitting on mainline railroad tracks. The judge asked about measuring pollution from the Bay Bridge toll plaza and other large sources of emissions in Oakland. Evans explained that this data might not exist or could be protected by confidentiality.

OBOT’s Day in Court

So far, developer Tagami’s trial attorneys (funded by the coal industry) have developed their case against the City of Oakland around two principal themes:  (1) residents of Oakland and workers at the terminal will be adequately protected by existing regulations and enforcement agencies; and, (2) the health and safety reports on which the City relied were flawed, most particularly because the City did not do air quality modeling as part of its analysis.

In analyzing likely health impacts of air pollution, air dispersion modeling links raw data about emissions to the exposure of individuals to the toxic substances in those emissions. Several expert witnesses called by the developer, Oakland Bulk and Oversized Terminal LLC (OBOT), testified that the City needed to have done modeling to establish that coal dust would cause health problems in West Oakland.

Lyle Chinkin, OBOT’s air quality consultant, testified that none of the reports relied on by the City analyzed the concentrations of particulate matter to which people in West Oakland would be exposed. The reports contained estimates of coal dust leakage from rail and terminal operations, but Chinkin asserted that to support the City’s conclusions that coal dust would endanger health, the amount that matters is how much reaches neighbors.

Chinkin, who has previously testified on behalf of Koch Industries in litigation over the dangers of petcoke, testified that quantifying emissions at the project site is only the first step in assessing the danger to the public. According to Chinkin, the emissions have no health impacts until they impact air quality.

“Air quality is outside the fenceline of the property,” he stated. In order to calculate air quality, he said it would be necessary to build a model that would start with emissions and then incorporate factors such as weather and wind to come up with a map of expected pollution in the neighborhood.

Chinkin discounted a Washington State paper on particulate matter emissions from coal trains that was relied upon in health and safety reports submitted to the City by the Environmental Science Associates, Dr. Zoe Chafe, and the Public Health Advisory Panel. He disparaged it as “crowd-sourced” because of its funding, and said that the coal trains studied came from Wyoming’s Power River Basin, whose sub-bituminous coal is much dustier than the bituminous coal that would come to Oakland from Utah.

Chinkin also testified that, in order to get necessary permits, the project would have to engage in an interactive process with the Bay Area Air Quality Management District (BAAQMD), which Chinkin suggested would be entirely adequate to protect public health. Local environmental activists view BAAQMD with skepticism, having struggled for many years to get BAAQMD to adopt a less industry-friendly approach to regulating the Bay Area’s five major refineries.

On cross-examination, Chinkin admitted that BAAQMD could not regulate the coal trains unless they are within the perimeter of a stationary source. It is unclear whether BAAQMD could regulate the rail yard and rail spur that are part of the larger redevelopment project at the former Oakland Army Base given OBOT’s claims that the rail yard and spur are part of the national rail system and can’t be regulated by state or local authorities.

Dr. Andrew Meier, OBOT’s expert on health, testified that he had looked at the three reports and concluded that the reports don’t support the conclusion. He called them “hazard identification reports” without “a clear credible risk assessment.”

One of the major hazards identified in the reports is PM 2.5, particulate matter that is 2.5 microns or less in width: so small it lodges in the tiny passages of the lungs. Exposure to PM 2.5 can cause short-term health effects such as eye, nose, throat and lung irritation, coughing, sneezing, runny nose, and shortness of breath. Exposure to fine particles can also affect lung function and worsen medical conditions such as asthma and heart disease.

Addressing a statement in the Chafe report that “there is no known safe level of PM 2.5,” Meier testified that the fact there is no known safe level of PM 2.5 doesn’t mean that there is no safe level, but just that it isn’t known. “No evidence of a threshold is not the same as saying there is no threshold.”

Ali Rangwala, an expert on explosions, asserted that there has never been an incident of explosion with bituminous coal. Rangwala cited the formula that Risk equals Probability times the Severity of Harm, implying that there was no risk of an explosion associated with the project since the probability appears to be zero. He also dismissed the probability of fire provided proper procedures were in place. On cross-examination, attorney Timothy Colvig asked Rangwala about two fires that took place in the now-shuttered Los Angeles coal export terminal in 2000 and 2001, another that took place in Norfolk, Virginia in 2009, and a fourth in Scotland in 2016.

When asked the simple question, “Would firefighters need specialized training to fight fire at the coal terminal?,” Rangwala gave a long-winded answer that had spectators in the courtroom rolling their eyeballs. “Is that your way of saying ‘yes’?” asked Colvig to the amusement of the crowd.

David Buccolo, a former rail worker and manager, testified that, in his 48 years in the rail industry, he had never seen coal dust escape from the bottom of rail cars. PM 2.5 is not visible to the naked eye. He also testified that, if Bowie’s rail cars are properly maintained, “there will be no fugitive dust” when they are unloaded.

On cross-examination, Buccolo admitted that he is currently a consultant with the short-haul rail operation owned in part by Tagami and has consulted in the past for Bowie. Neither of these connections were disclosed by Buccolo when he submitted his expert report.

Mark McClure, Phil Tagami’s partner and president of Oakland Global Rail Enterprise, LLC (OGRE), testified that he looked at the impacts of other commodities and found a United States government chart showing that shipping of cereal grains and bituminous coal were equally hazardous. He asserted that OBOT saw coal as the anchor commodity along with three or four other commodities. He asserted that the City’s ordinance banning coal has interfered with efforts to attract financing, in particular because the City’s action makes it clear that the City might block any commodity it does not like.

Although this did not emerge in McClure’s testimony, the financing to which McClure made reference is based entirely on coal. If the coal terminal is ever built, the terminal’s owner and operator will be TLS, a Bowie-owned startup. Of the $250 million necessary to build the terminal, $50 million will come from the State of Utah in order to promote coal exports from Bowie’s mines, and $200 million will be raised from private investors on the strength of Bowie’s commitments to ship coal. Bowie is heavily in debt. The company’s bailout scheme involving merger with Murray Energy collapsed in November.

The bottom line of Wednesday’s testimony:  OBOT’s witnesses painted a picture that no harm would come to the residents of West Oakland or workers at the coal facility because all protective standards are adequate, all agencies will do a fine job of enforcing them, and the facility will be required to operate in a way that will create no health or safety risks.

City’s Witnesses Up Friday As Trial Concludes

The City’s experts are likely to point out flaws in this logic when the City makes its case on Friday. The City plans to call Dr. Nadia Moore, an expert on health impacts; Dr. Carlos Fernandez-Pello, an expert on fire and explosion risks; Dr. Zoe Chafe, an epidemiologist and author of one of the reports on which the City relied; and, possibly, Steven Sullivan, an expert on rail operations. Former assistant city administrator Claudia Cappio is also on the City’s list. The City may play some video from the deposition of James Wolff, Bowie’s chief financial officer.

Unless the judge provides an extension, the trial is likely to end Friday. The judge decided at the pretrial hearing last week to give each side 6 hours of “airtime.” Whenever an attorney is questioning a witness, whether on direct or cross-examination, time is deducted. At the end of yesterday’s hearing, the judge announced that City has only 2 hours and 40 minutes and OBOT has only 50 minutes left of their initial allotments of 6 hours each.

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