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  Richmond slammed with multiple federal, state lawsuits over ban on coal and petcoke
March 14, 2020

Richmond slammed with multiple federal, state lawsuits over ban on coal and petcoke
An uncovered coal car rumbles along the tracks in Richmond, Calif. on Wednesday, April 29, 2015. (Kristopher Skinner/Bay Area News Group)

By Annie Sciacca | | Bay Area News Group
PUBLISHED: March 13, 2020 at 6:00 a.m. | UPDATED: March 13, 2020 at 6:03 a.m.

RICHMOND — Nearly two months after the City Council approved an ordinance that bans the storage and handling of coal and petroleum coke in Richmond, the city is facing multiple lawsuits in federal and state courts from the companies who handle and export those products.

The ordinance phases out existing coal and coke operations within three years. But three companies — the Levin-Richmond Terminal Corp. that manages the only facility in the city that handles coal, coal export firm Wolverine Fuels, and Phillips 66 that manufactures petroleum coke and exports it through the Levin Terminal — are arguing that the ban violates their constitutional rights.

Coal and petroleum coke shipments make up more than 80 percent of the Levin-Richmond Terminal’s business, according to executives at the company. The coal is mostly shipped to Japan and petroleum coke to other countries for use in manufacturing.

While city documents about the ordinance acknowledge the city cannot regulate the transport of coal or petroleum coke, banning the storage and handling of coal and petcoke at the Levin Terminal effectively forces the coal trains out.

Because of that, Levin’s lawsuit, filed in federal court last week, calls the ordinance “an improper exercise of police powers,” contending that it “violates Constitutional protections and unduly burdens interstate and foreign commerce, is preempted by federal law, violates Constitutional protections against taking of property and business interests, impairs Levin’s Constitutional rights to due process, equal protection and contractual relations, and is arbitrary, capricious and unlawful.”

Federal lawsuits by Wolverine Fuels and Phillips 66 make similar arguments. The companies also allege in their lawsuits that the city does not have adequate evidence to support its claims that the handling of coal and petcoke is bad for residents’ health.

When coal is put in open-air piles, its coal dust is swept around the bay, containing posions including arsenic, mercury, cadmium, vanadium and chromium, according to environmental advocates with the Sierra Club. The toxins can cause cancer, birth defects and neurological harm, and microscopic particles can inflame lungs and find their way into blood to cause heart and lung disease, diabetes, low birth weight and other illnesses, Sierra Club documents say.

Phillips 66, Wolverine and Levin point to the results of an air monitoring test done over the summer by Sonoma Technologies, arguing that in their complaints that their activities are not having an effect on the community. The Phillips 66 lawsuit notes that there is “no scientific basis for concluding that fugitive dust from the storage and handling of petcoke at the Terminal posed any health risks or environmental impacts.”

An evaluation from researchers at UC Berkeley and Belvedere Environmentals posted by advocates of the coal ban disagree.

The particle levels in downtown Richmond are “are definitively associated with increases in: premature death (life expectancy of residents is 7 years shorter than residents of the hills), ischemic heart disease, asthma attacks (incidence in one downtown census tracts is higher than 99% of all California census tracts), lung disease (cancer, pneumonia, and bronchitis), dementia, stroke, preterm births, diabetes, and metabolic syndrome,” the researchers wrote in a Nov. 2019 assessment.

The lawsuits against the city are not a surprise. Levin-Richmond Terminal Corp. president Gary Levin warned the council in a July letter that adopting the ban could lead to closure of the terminal and the loss of 62 jobs, and that the company might sue. Wolverine Fuels, which exports thermal coal to Japan using the terminal, also threatened to sue in a letter to the council.

In addition to the three federal suits filed by each company against the city that seek to overturn the lawsuits, at least two more petitions — from Levin and Phillips 66 — appear in state court records in Contra Costa County.

Calls to the acting Richmond city attorney were not returned, but Richmond Mayor Tom Butt has expressed concern over the potential costs of fighting the lawsuits, which he expects to top $1 million.

Butt said he was expecting help in fighting the lawsuits from the Sierra Club, which lobbied for the coal ban and helped draft the ordinance, he said. But the Sierra Club maintains that it never promised to indemnify the city or pay the legal costs, as Butt alleges.

“I voted for it, I supported it. They were all over Richmond — lobbying city councilmembers. They started this whole ‘no coal in Richmond’ movement. They drafted the ordinance, assured everyone it was no problem — ‘they may sue us but we’ll win’ — but we’re looking at spending over a million to defend this,” Butt said. “Richmond is not a rich community. We struggle with our budget. I kind of resent the fact they put us out front on this.”

A video of a December council meeting shows Sierra Club Aaron Isherwood and Mayor Butt discussing potential litigation over the lawsuit. While Isherwood, at the meeting, said he can’t promise to cover legal costs — noting that “the city will have to hire its own attorneys,”  but that “we will hire attorneys to help defend.” He said also that Sierra Club has “already expended considerable resources to help the city on the coal ordinance.

Butt said Thursday, “The message was murky, but I took it to mean that they’ll be there for us.”

“In Oakland after the City Council passed its coal ordinance, Sierra Club has been there every step of the way as intervenors,” Isherwood said in a written statement. “When Mayor Butt first approached us to ask about the Sierra Club funding the City of Richmond’s legal costs, we made it clear that we don’t have those kinds of resources to offer, but that we would back the City up in court as intervenors. We will do so, and we remain committed to supporting Richmond and this community in their fight to protect families from the impacts of coal dust.”