Summer 2012

Summer 2012

Hold your fire

Hold your fire

David Kennedy, architect of Boston’s successful anti-gang strategy of the 1990s and author of a book describing it, is determined to show that the mayhem of urban gun violence can be stopped

DAVID KENNEDY IS an unlikely figure to be leading the charge on behalf of an innovative policing strategy to combat urban gun violence. For starters, he’s not a cop and has no law enforcement background. Though he’s a full professor at John Jay College of Criminal Justice in New York, the 54-year-old Kennedy has no formal training as a criminal justice academic, either. What Kennedy does have is credibility and standing that have been honed from the central role he played in the remarkable decrease in Boston homicides and gang violence in the mid and late 1990s.

The drop in gun violence gained national attention, and quickly was dubbed the “Boston Miracle.” The label has always bothered Kennedy, for the decrease in gun violence was not the mystical result of any divine intervention, but the product of a carefully thought out and focused strategy.

At the core of the approach, which Kennedy developed with academics and police officials while working at Harvard’s Kennedy School of Government, was a strategy for dealing with gang members that relied on delivering a forceful message that gun violence would no longer be tolerated in the community. The beauty—and effectiveness—of the approach, which has come to be known as Ceasefire, was its limited focus. It was not an attempt to solve the root causes of urban poverty or to turn gangbangers into choirboys. The goal was to curtail the gun violence that was taking so many young lives and destabilizing urban neighborhoods.

Under the Ceasefire model, gang members, many of whom were under some form of court supervision through probation or parole, were ordered to attend meetings where they were met by a phalanx of law enforcement muscle. The gatherings often included not only police, but probation officers and state and federal prosecutors. Also present were clergy and youth outreach workers, who were there to say the community was fed-up with gang violence but also ready to extend a hand with jobs or schooling to those who were ready to put down the guns. The message from the law enforcement crowd: Stop the gunplay or we lower the prosecutorial boom on everyone affiliated with your group the next time there is a shooting that any member is involved in. The poster boy for these efforts became a Boston gangbanger named Freddie Cardoza, a career felon who received a federal prison sentence of 19 years and 7 months, with no possibility of parole, when caught carrying a single bullet.

In this way, the strategy carries a harsh, throw-the-book-at-them promise to gang members who don’t heed the message that the violence must stop. At the same time, the real aim of Ceasefire is to quell gun violence without locking up every perpetrator—and to focus on the small number of offenders responsible for most of the urban chaos. The ultimate goal is prevention, to get those involved to wise up and turn away from guns and gangs before a Freddie Cardoza-length federal sentence is imposed.

The strategy depends on making common cause with leaders of the affected neighborhoods, and it stands as the community-oriented alternative to the stop-and-frisk approach that has poisoned police-community relations in New York City. “We are destroying the village in order to save it,” Kennedy writes of the “orgy of incarceration” that is sending so many black men to prison.

Many of those involved in gang life, Kennedy says, get sucked in by the peer pressures of the street and are as scared as anyone of its deadly consequences. That makes them surprisingly open to a way out of the craziness, he says, which is exactly what the strategy gives them.

Ceasefire has been implemented in dozens of cities, often with almost immediate decreases of 25 or even 50 percent in gun violence. But it’s not easy to sustain. The effort in Boston fizzled out after a few years, and the same thing happened in many of the other early-adopter cities. The strategy depends on the relentless focus of a large cast of law enforcement and community players, something that Kennedy says requires a full-time coordinator and explicit commitment to its use from everyone involved. Those lessons are now being applied in the 70 cities that are part of the National Network for Safe Communities, a coalition Kennedy co-chairs that consists of law enforcement and community leaders committed to the Ceasefire approach.

Kennedy was shunned by Boston police officials when he publicly criticized the department’s turn away from the strategy in the early part of the last decade, a period that saw a significant increase in homicide and gang shootings. He has now been brought back into the fold as a consultant to the department under Police Commis­sioner Ed Davis, who has vowed a renewed commitment to the Ceasefire approach.

Kennedy has spent years on the road, explaining the strategy and coaxing police officials across the country to give it a try, telling them gang violence and open-air drug dealing do not have to be permanent fixtures on the urban landscape. “Give me half an hour before you decide I’m crazy,” is how he prefaced a presentation to a North Carolina police chief.

A 2009 profile of Kennedy in The New Yorker said there is a “High Plains Drifter” feel to him, “the mysterious stranger who blows into town one day and makes the bad guys go away.” It’s an image helped along by Kennedy’s preference for dark suits, beard, and shoulder-length hair, a combination that gives him the look of a more kempt and younger Willie Nelson.

Jeremy Travis, the president of John Jay College, recruited him in 2005 with the offer of a tenured professorship even though Kennedy’s formal education ends with a B.A. in philosophy from Swarthmore College. Kennedy is “recognized in our field as one of the original thinkers who’s pushing the boundaries of both theory and practice,” says Travis.

A review paper published in April reported that 9 of the 10 studies that have carefully evaluated the Ceasefire approach found statistically significant crime reductions associated with its use. Travis, who co-chairs the National Network for Safe Communities with Kennedy, thinks the strategy is reaching a “tipping point” from which its use will spread much more broadly.

Last year, Kennedy committed the Ceasefire story to book-length treatment. Don’t Shoot: One Man, a Street Fellow­ship, and the End of Violence in Inner-City America is part memoir, part criminal justice theory spun in narrative form. Kennedy can come off as brash, and his book doesn’t pull punches. He is dismissive of many popular claims about the causes of and cures for gang violence that he says don’t hold up to rigorous scrutiny.

“There’s sort of a delightful impatience about David,” Travis says of Kennedy. “He just wants the rest of the world to see what he has seen. Particularly when you put on top of this description his passion that we’re talking about saving lives, saving communities, and restoring communities to good health, there’s an understandable impatience that some people confuse with arrogance.”

I spoke with Kennedy by phone from his office in New York. What follows is an edited transcript of our conversation.

—MICHAEL JONAS

COMMONWEALTH: The Ceasefire story has its roots here in Boston. Can you take us back to the early and mid 90s and the situation on the ground in Boston neighborhoods as you started to delve into this work on urban gun violence?

DAVID KENNEDY: It was bloody chaos, and that’s not just Boston. What was going on in Boston was the same basic thing that was going on everywhere. The crack epidemic had unleashed a wave of violence that really was unprecedented in kind, in scope, in intensity. The homicide rate for young black men went up 400 percent in just a couple of years. On the ground in these places it just felt like Armageddon had been unleashed.

“Give me a half hour before you decide I’m crazy,” Kennedy told one
North Carolina police chief.

CW: How did you get started in this work?

KENNEDY: I got sucked into this whole area essentially working as a journalist. I wanted to be a serious nonfiction writer, but I had a wonderful job at the Kennedy School at Harvard writing teaching cases for the school. In the early ’80s and mid ’80s I ended up getting tapped at the school by a group that was interested in the then not very respectable idea of community policing. I got completely captured, not by policing as such, but by what the assignments I got showed me about what was going on in poor black neighborhoods all over the country. I found myself walking crack markets all over the country. But over those 10 years that I systematically went to the worst areas all over the country, they weren’t getting any better. What that led to in 1994 was a step out of that kind of Boswell role to something that was intended to be more active. Anne Piehl, an economist, and I put together a proposal to the Justice Department to try to do problem-oriented policing with the Boston Police Department around kids killing kids in Boston. Against all odds, the National Institute of Justice funded that work early in 1995, and very shortly after that, Anthony Braga [a Kennedy School criminal justice researcher] and I started working systematically with the Youth Violence Strike Force [the Boston Police anti-gang unit]. Our idea was, let’s try to figure out as a first step what is happening. We had a reasonably fancy set of ideas about how to gather different kinds of information —formal data, qualitative data, school surveys. We basically never did very much of that because when we hit Rox­bury and started talking to the guys in the Youth Violence Strike Force and others in BPD, they knew exactly what was going on and they told us, and it changed everything.

CW: What did they tell you?

KENNEDY: They told us something that was so profoundly different than the normal stories that were out there that I didn’t believe them. We sat in their beat-up conference room and they told us: They’re gang kids, there aren’t very many gang members, almost all of the killing and the dying is gang members, they mostly hurt each other. Every time we lose a kid we know who they are, not by going and running their records. We know them by name, by face. We know nearly every time who the killers are. A lot of these murders are going uncleared in the formal sense. They don’t come to a prosecution, we can’t make arrests, because people don’t talk. But do we know what happened? Yeah. We nearly always know what happened.

CW: There was also something striking about the basis for what was happening, right—the reason for the killings.

KENNEDY: Maybe the most unexpected and, again, to my mind, unreasonable thing that they said was that nearly none of this is about money. A big part of this story nationally had been everybody’s supposition that these guys are drug dealers, these are drug markets. You get ripped off or somebody tries to take your corner, you can’t go to the Better Business Bureau, you can’t file a civil suit, so you shoot the guy. It’s perfectly plausible, it’s internally consistent, everybody believes in it, and it just turns out not to be true. What the police gang unit guys knew was—yes, there are drug dealers and, yes, nearly everybody who pulls a trigger and the overwhelming proportion of those who get shot are members of these drug crews—and almost none of the violence is about money, drug turf, markets, bad debt, any of that kind of thing. Nearly all of the violence is personal. It’s vendetta. It’s back and forth, patterned, almost predictable violence between these groups. It’s respect, it’s disrespect. Your new boyfriend is a member of that group and I’m mad at him and he knows it, so he took a shot at me and I took a shot at him and the enemy of my friend is my enemy.

CW: From this very surprising set of revelations about the nature of youth gun violence came an equally surprising approach or structure to deal with it.

KENNEDY: We learned two huge things from the folks that we came to know [in the police gang unit]. One of them was that the shootings involved very small numbers of people. The other was what to do about it. We started hearing from the beginning of our time with them about something that they had done in Dorchester that had completely quelled the shooting by one of the most active gang drug crews in the city. I couldn’t connect the dots. Then there was literally one moment when one of the detectives, Fred Waggett, finally made me understand what had happened. What Fred said was: We were putting all kinds of pressure on them, and not just law enforcement pressure. If people wanted jobs, we set them up for summer jobs. We had the street workers and the Ten Point ministers in there, trying to calm people down. So we were focusing on this group in a very, very intense way. But what he then said was the single transformative moment in all of this, and it has been defining our work ever since: “We told them what it would take for us to stop, and what we meant by that was we were putting all this pressure on them because they were shooting. The Strike Force cared about violence.”

What I hadn’t understood was that all the time that they were putting all this pressure on this group, the Wendover Street crew in Dorchester, they were saying explicitly to them: “This is because of the shooting, and if the shooting stops, we’ll take things back to normal.” So they essentially gave the gang the tool it needed to make [the intensive police pressure] stop. The price they had to pay for all this special pressure to go back to normal levels was the shooting had to stop. That was an entirely new way of thinking about what we, at the time, were calling “demand reduction.” How do you do something about the desire for these young men to get and use firearms? The thing that nobody had thought of was raise the cost of the gunplay to the group to a level that’s so high they don’t want to pay it. It turned out that without any new law, any new resources, or anything fancy except a new idea about how to operate, street officers and their partners could actually do this and did it.

CW: So they had been practicing the principles of the Cease­­fire technique without having formalized it in any way?

KENNEDY: Yes. In my cumulative astonishment, I said to Fred, “You’ve done this before?” He said, very matter-of-factly, “Yeah. We do this sometimes.” And I said, “Well, what happened the other times?” And he said, “Oh, it always works.” That’s what became Operation Ceasefire, the platform for everything else in this whole area that has grown into a kind of school of approaches and a school of thought. It’s been used to shut down drug markets. It’s been used to stop street robbery, it’s being used as a central plank in probation reform. It’s being used to control knife crime in Glasgow, Scotland. It turns out to be a very, very powerful and still actively evolving framework.

CW: And you took the essentials of that and developed the more formal structure of the Ceasefire “call-ins” where you bring gang members in to lay all of this out?

KENNEDY: Yes. And all the formal theory and scholarship that comes out of that. There’s a whole new generation of deterrence theory and crime control thinking that you can now find in the journals and in academic treatments. It’s changing policing. It’s really changing the way we think about public safety. What I think people don’t understand is that it didn’t start with the theory and the scholarship, it started with street practice in Boston. It started by cops talking to gang kids on Wendover Street.

CW: Ceasefire in Boston was systematized and put into practice in 1996. Talk about what happened then.

KENNEDY: In March of 1996, we had the first meeting with gang members at the Dorchester Court, and we explained to a group called the Vamp Hill Kings what had just happened to them—we had orchestrated a very, very intense systematic crackdown because they had committed a bunch of homicides. We brought gang members in who were on parole and probation and from jail, and the street workers and the probation officers just talked some into showing up. We said to them, “This is business as usual. This is the way we are going to respond to violence. Go home, tell your friends, this is essentially up to you now. This is not a drugs conversation, it’s not a crime conversation. This is about shooting people. Where groups are shooting people, we are going to focus this kind of intense law enforcement attention.” The message was also that the street workers would like to help you; it was not just this iron fist message. The way we came to characterize the message was really simple: We know who you are, we know what you’re doing, we would like to help you. We will help you if you let us, and we will stop you if you make us. To our absolute astonishment, that immediately rippled through the city in a way that we could not have possibly anticipated. That one meeting started a big change on the streets. Things got really quiet. It was weird and unbelievable and surreal, but it seemed like something was happening.

CW: What were the numbers like over the next few years?

KENNEDY: We ran a formal evaluation that looked at the period between that first meeting in 1996 through the end of 1999, and we were tracking especially homicide victims 24 years old and under. They went down by two-thirds. Homi­cide across the city went down 50 percent.

CW: Going all the way back to the Great Society days in the ’60s, people have felt that the challenge in poor urban neighborhoods—and it extends into the challenge of quell­ing gang and gun violence—is to solve the big problems of the day around poverty, joblessness, dreadful schools, and so on. There’s been criticism of Ceasefire that it does nothing to address those root causes. In reading your book, it seems you plead guilty. Right?

KENNEDY: Yes. Absolutely.

CW: Explain that.

KENNEDY: There are three things to be said about that. One is many, many people are convinced that the way to address these problems is to foster fundamental change and uplift in the neighborhoods that have these problems. What has to be acknowledged about that position is that there are no examples of it working. There are literally no examples of troubled neighborhoods with high levels of gun crime and public drug activity and everything else that we’re talking about here where those problems have been meaningfully addressed through fundamental core community work.

CW: So I take it you decided to very self-consciously focus on very specific outcomes and behaviors that you’re looking to prevent?

KENNEDY: Yes. Lots of folks will look at that fact [that the root causes of urban violence have never successfully been tackled] and say, well that’s because we’ve never really tried it seriously. Even if we grant that, then we need both to show that we can get that investment and commitment, and that if we had that investment and commitment that it would be effective. The second point is, even if it worked, this is a process that will operate at best on a scale of decades and probably generations. For communities that are losing their kids every day, that’s not an effective response. This is sort of like distinguishing in medicine between trauma care and public health and long-term prevention. Each has merit and strengths. We can’t do fundamental uplift in these communities when we’re arresting all the men and sending them to prison. I have friends who are trauma surgeons. And when these [gang] guys get shot, the surgeons turn themselves inside out to keep them alive, and they’re pretty successful. We don’t say to them, what you do doesn’t matter because there are these other deeper problems he’s going back to. The third thing that I believe very firmly now is that you actually can’t do that fundamental community work when communities are experiencing this level of violence and fear and dislocation. We also can’t do fundamental uplift in these communities when we’re arresting all the men and sending them to prison. You can’t do economic development in a neighborhood where all the men have criminal records. We need a way for the law and law enforcement to operate that deploys authority in an effective way without resulting in mass incarceration.

CW: So you’re saying the gun violence prevention work is kind of like triaging the worst of what happens in urban neighborhoods?

KENNEDY: Yes. It doesn’t dishonor those other longer term goals. It just doesn’t confuse them.

CW: You write very forcefully that, contrary to a lot of the popular accounts of what happened here, the clergy-led efforts in Boston were not what led to the steep drop in gun violence. But you also discuss how vital it is to the Cease­fire effort to reset the often poisoned relationships between poor black communities and the police. A lot of this does have to do with local leadership—in Boston, the clergy were key to this. And a lot of it centers around race.

KENNEDY: I have enormous, enormous respect for that [the clergy-led efforts by the Ten Point Coalition and others]. And we always said that. What was so toxic about the way this played out in Boston was it was very clear if you looked at the evidence and the record that none of the things that people held up as having been solely responsible had worked. And you can fill in the blank there. Ten Point by itself didn’t work. Outreach workers by themselves didn’t work. The police department by itself couldn’t carry it. If you were serious about what had worked, what it was going to take to keep people alive, you had to recognize that. And in the toxic debate that arose in Boston, a lot of this was personalized to me being characterized as saying those things and those people didn’t matter. We never said that. It was never true. We went out of our way not to say that and to honor all these different contributions. You need this community stand saying this is not okay with us. You need police and people in law enforcement who are willing to say, even if you are on the street, we respect you enough to treat you like adults and tell you how the game is going to be played. You need people in the social service world who are willing to work with the 5 percent of the young men in these neighborhoods who are really out on this very, very extreme place.

CW: So that’s a resetting of the whole terms of community-police relations that is kind of a precondition for this all working?

KENNEDY: Or it’s part of the work. A big part of the work is bringing folks who are very angry and suspicious of one another to a place where they can see each other differently and work together. Communities really do believe in a very strong way that the cops are not their friend. They may believe that the cops are race enemies. They may believe that the cops are part of the conspiracy to bring the drugs in and use them as an excuse to lock their men up. And that makes them angry. That makes them silent. The cops can look at that silence and say, the violence must be okay with them, they never say anything. And that misunderstanding and anger and suspicion separates the two sides that need each other the most. And you can fix that. But you need to be explicit about it. You need to say what it is. You need to be very, very clear about what the views in each direction are. And you need to be very clear that they’re wrong and you need to be very clear that they’re irrational. They’re not crazy. But they’re not right.

CW: Give a sense of what the feeling is in the Ceasefire “call-ins.” The term itself has a sort of transformative kind of ring to it—a calling to account or something.

KENNEDY: They’re transcendent. They’re transformative. I’m not able to convey that. I’m really not. I’ve tried in various ways. But in all honesty, unless you’ve seen it, you don’t get it. You can’t get it. There’s an electricity and a power to what goes on that you only get in places like church or a tent revival or those sort of magic moments in public life or private life when the hair on your arms stands up. You see people who don’t like each other. They don’t trust each other. They have terrible ideas about each other. They are, many of them, convinced that the other is an enemy. They are convinced that the other is corrupt, that they’re “the other.” They can speak about things that are normally unspoken. They are pretty human and pretty familiar and they actually want the same stuff. And it’s—it’s unbelievable when it all clicks.

CW: In the book, you talk about how Ceasefire fizzled out quite badly here in Boston and in many other cities where it was first used. In the early 2000s we saw this resurgence of gun violence in Boston. At one point you came up, you met with Mayor Menino, you talked about the rationale for a return to Ceasefire. You say in the book that Ed Davis, the police commissioner, has now committed himself to its use. Gun violence is certainly not as bad as it was in the early 1990s, but neither is at the low levels we saw in the late 1990s. How do things look in Boston today?

KENNEDY: The city’s almost where it needs to be. The fact about these approaches is until all the pieces are there and operating correctly, you don’t see much in the way of results, and then when they’re all there and operating correctly, you get really dramatic changes, but they’re pretty binary in that way. Commissioner Davis understands this. He absolutely understands the place the city’s been in since about 2000, when it said it was doing this work but it wasn’t actually doing it. He is committed to getting it properly constructed and running and showing results. The one thing that’s missing at the moment is that one of the most fundamental ideas in Operation Ceasefire is that you address all or at least the key violent groups in a jurisdiction simultaneously. You get citywide effects by reaching out to all the groups that drive most of the violence and resetting their behavior. The approach that has been used is to calm down particular groups. The move that the department needs to make now is to move from that kind of tactic of using the approach to calm down a particular group to one of outreach to multiple groups at the same time.

CW: You write that a lot of this was serendipity that landed you in this work. But you have really become consumed by and focused by the tragedy of gun violence in poor black neighborhoods. It has really become, in many ways, personal for you.

KENNEDY: It absolutely has. Yeah. And it has also for the large and growing community of people committed to this way of thinking about things. It’s a group that’s intellectually serious about the work—and it has to be done well, it has to be done right. But what’s really driving everybody is this core sense of outrage about just how bad it is, and our collective understanding of what’s bad about it has expanded well beyond the original focus on people getting hurt, people getting killed. It’s mass incarceration, it’s these poisoned relationships between needy neighborhoods and people on the outside that honestly are trying to help them. It’s the way that alienation continues a toxic American story of race and race relations. It just goes on and on and on.

CW: And you have not just a hope, but a belief based on what’s happened, that it doesn’t have to be that way?

KENNEDY: That’s absolutely right. The reason it felt like it was time to write Don’t Shoot is because the work and the national experience and the research—it’s all gotten us to a point where we really feel that we can say with genuine grounding that we don’t have to accept this anymore. There is actually a way out of some of the worst of this. We’re far enough along to really know it.

Natural gas: Good news and bad news

Natural gas: Good news and bad news

A growing supply is driving down prices, but the fuel’s dominance is posing challenges

in january 2011, extremely cold temperatures enveloped New England, and demand for natural gas soared. Why does demand for natural gas matter to ISO New England, which operates the regional electricity grid and manages the wholesale electricity markets? Because natural gas has become the dominant fuel used to generate electricity in our region. The story of what happened on January 24, 2011—which was not an isolated occurrence—helps illustrate why our reliance on natural gas is of critical importance.

 

As the cold snap moved into its second week, demand for natural gas to heat homes and businesses was rising. The extreme cold caused operational problems at some major natural gas-fired generators, and others without contracts for guaranteed fuel delivery found themselves unable to get gas. By the morning of January 24, ISO New England’s control room operators faced extremely tight system conditions: electricity demand was near an all-time winter high, and several power plants were having trouble delivering.

The ISO initiated several emergency procedures to keep the power flowing, cancelling all routine transmission work, verifying that natural gas-fired generators had secured the fuel they needed to produce electricity, and curtailing electricity sales to neighboring areas. And with projections that demand would peak on Monday, January 24, system operators called for the region’s older, oil-fired generators to start up over the weekend—because these older plants can take 12 to 24 hours to ramp up to full production.

This spring, on March 2, system operators faced a similar set of challenging circumstances. Trans­mission lines in Rhode Island and southeast Massa­chusetts were out for planned maintenance, and natural gas-fired generators in the area were called on to support reliability. But an unplanned transmission outage occurred at the same time two natural gas pipelines serving those local plants began experiencing problems. To protect reliability, system operators called upon other generators, elsewhere in the region, which were able to procure the fuel they needed.

Two important themes emerge from these examples. First, when winter demand for electricity peaks in New England, demand for natural gas—both for power generation and to heat homes and businesses—is also peaking. Electric generators often do not have firm gas supply contracts and therefore can only get delivery of gas if there is space on the pipeline. Even at other times of the year, some of the region’s natural gas-fired generators may be unable to get fuel if there is an outage or constraint on a pipeline.

Second, at times of system stress—which can occur in any season—or when power plants are unable to secure natural gas, electricity production from the region’s older oil- and coal-fired power plants is currently essential. Yet many of these older plants could opt for retirement in the near future due to market pressures and the cost of complying with environmental regulations. If coal and oil plants retire, they are likely to be replaced by more natural gas power plants.

This reliance on natural gas to produce electricity marks a relatively recent shift in the region’s power plant fleet. Since 1999, more than 13,000 megawatts (MW) of new generation have been built, with most of that natural gas-fired. In 2000, oil produced 22 percent of the region’s electricity; last year, oil plants generated less than 1 percent. At the same time, the share of electricity produced by natural gas went from 15 percent to 52 percent.

The region’s reliance on natural gas is only likely to grow as abundant new supplies, low prices, and stronger environmental regulations converge to favor continued investment in gas-powered resources. Gas plants operate efficiently, emit relatively few pollutants, and help meet regional environmental goals.

Another important development is underway a few hundred miles away in the hills of Pennsylvania and western New York. An enormous deposit of natural gas—the Mar­cellus shale—has resulted in record levels of domestic natural gas production. After decades of living “at the end of the pipe­line” that brought most of the region’s natural gas from the Gulf of Mexico, New England is suddenly next door to a major source of energy, although expansion of natural gas pipeline infrastructure is needed between the regions.

The region’s reliance on natural gas has continued to grow, but with the lessons learned from several power system events, the ISO has developed improved operating procedures to deal with the possibility that natural gas-fired generators may be unable to obtain fuel. The electricity and natural gas industries in New England have significantly improved their coordination and communications to help maintain their vital services.

Natural gas is powering the region and, as a result, the price of wholesale electricity now follows the price of natural gas here. With the significant increase in domestic production, natural gas prices have plummeted. Whole­sale electricity prices also have fallen. As a result, many utilities across New England have announced rate cuts for their electricity customers.

It’s evident that generating electricity with natural gas has its benefits. But becoming heavily re­liant on just one fuel poses challenges to the long-term stability of the power system.

The transition to lower-priced gas has pushed the older, fossil-fuel-fired generators in­to tenuous financial territory. Nearly one-quarter of New Eng­land’s generation capacity is provided by oil and coal plants that are more than 30 years old. Because natural gas plants have become far less expensive to operate, these oil and coal units have gone from market-makers to bench players, running just a few times a year when demand is peaking or to fill in for generators that are out of service. In addition, new federal environmental regulations could require additional capital expenditures to retrofit these units with pollution control equipment.

The changing economics of the electric and gas industries could also affect the development of renewable power. While wind power accounts for less than 2 percent of the total power mix, current proposals would increase the amount of wind power by a factor of five. By 2020, the six New England states are aiming for renewables and energy efficiency to make up 30 percent of total supply. But as the price of natural gas has fallen, the financial outlook for wind power development has become less clear.

The region’s reliance on natural gas and the consequences of fossil fuel-fired generator retirements are among several interconnected challenges being addressed through a Strategic Planning Initiative launched more than a year ago by ISO New England, market participants, regulators, and other government officials from all six New England states. The goal is to assess these challenges and find solutions that will lay the groundwork for a power system that continues to be reliable and economically efficient.

The initiative is paying particular attention to the natural gas issue because of its near- and long-term implications for system reliability. A comprehensive study of the region’s natural gas pipeline capacity and its ability to meet power generation needs was completed last year.

The initial results indicate that under normal system conditions during summer peak demand, no shortfall in the ability to deliver natural gas for power generation is expected. On a winter peak day, with all pipelines and liquefied natural gas (LNG) imports available and demand at normal levels, the natural gas system in New England can meet power system demand from 2014 to 2017.

While the study focused on winter peaks, the ISO’s experience shows problems can surface year-round. Temp­era­tures—and demand—in New England can hit extremes, and equipment can break down. The study found that if winter demand is particularly high, current pipeline capacity won’t be sufficient to transport gas for both heating and electric generation needs. If pipeline disruptions occur, or if gas demand rises because retiring oil and coal power plants are replaced by natural gas plants, the pipeline deficit worsens.

Furthermore, the assumption that LNG imports will remain at historical levels is proving to be incorrect. In the global marketplace, LNG has recently been able to command prices that are four to eight times the US price. The study will be revised with an assumption that LNG imports will be lower, with the likely result that the pipe­line deficit will be greater than forecast.

While reliability can be maintained in the near term with existing tools and better utilization of existing power system infrastructure, these are not long-term solutions to the challenges. The Strategic Planning Initiative has begun to outline potential solutions, many of which are ambitious, complex, and will take years to implement; others may be more easily instituted in the short term to begin mitigating these risks. Potential solutions include:

  • Alignment of the wholesale electric market and gas market timelines, so power plants will know if they’ve been scheduled to run before the deadline to buy natural gas.
  • Allowing generators to update their offers in the energy market to reflect real-time changes in fuel prices.
  • Increasing the performance incentives for generators to deliver electricity and the consequences for failure to deliver energy.

Other interim solutions, such as ensuring power plants have sufficient fuel levels, may be necessary as we work to implement long-term solutions to the region’s fuel security needs. Looking ahead, the one certainty is that days like January 24, 2011, will come around again until the region has fully addressed its reliance on natural gas for electricity generation.  

Gordon van Welie is president and CEO of ISO New England Inc.

Out front on climate change

Out front on climate change

Reducing emissions is a worthy goal, but costs should also be considered

massinc’s recent research report, Rising to the Challenge: Assessing the Massachusetts Response to Climate Change, was billed as “the first independent assessment of state action on climate change.” We, at NAIOP Massachusetts, believe that it missed an opportunity to provide a more complete, non-partisan account. Although it is acceptable to inquire into the progress that the state is making to reduce greenhouse gas emissions as required by statute, this report is by no means a sufficient analysis of the issue.

The Massachusetts Global Warming Solutions Act, passed in 2008, required the state’s secretary of energy and environmental affairs to set a greenhouse gas reduction goal of between 18 and 25 percent for the year 2020 (one of the most ambitious in the nation). Ian Bowles, who was the secretary at the time, chose to set that target at 25 percent. The secretary was required to submit an action plan to the Legislature that could assist in meeting this goal; however, there was no requirement that the plan be followed or that other means could not be used to achieve this target.

We have no argument with the statute’s basic premise that climate change is a serious global problem and there need to be international and national plans in place to reduce greenhouse gas emissions in a timely manner. But we feel that questions need to be raised regarding the practical challenges of emissions reductions—where and how they can best be achieved, at what cost, and over what period of time?

Climate change is not a local issue. One state’s reduction in greenhouse gas emissions will have little impact on how that state will be affected by global climate change. Any other expectation is un­realistic. However, pursuing policies that could unintentionally hinder growth will most definitely put the Commonwealth at a competitive disadvantage when it comes to attracting or retaining jobs.

MassINC’s stated goal was to uncover the facts and reach independent conclusions based on evidence. Its approach was developed from the perspective that the state has committed to achieving ambitious greenhouse gas reduction goals, and that there should be a dialogue about the best way to do so. Unfortunately, the report comes up somewhat short. Rather than offering a dialogue, the report simply checks off which measures in the plan have or have not been completed to date. It accepts these recommended measures as the only path to achieving the required reductions and lacks any qualitative critique of these mitigation methods.

A comprehensive assessment of this issue would include a serious discussion of the economic and financial impacts that will result from recommendations of the state plan. This includes a cost/benefit analysis of any presumed impacts on businesses and residents. However, the only mention of cost impact in MassINC’s report is general statements from environmental advocacy groups indicating that these measures are fully balanced by the savings they will produce. The groups also imply that the costs would be less detrimental as valued against the cost of building a new power plant, which is a very unsuitable standard by which to judge individual policies. In addition, many of the policies outlined in the plan would have dramatic impacts on the economic development goals of the Commonwealth and should be questioned accordingly.

The report is also lacking more substantive examination of the controversial decision to fund many of the alternative energy and efficiency programs with increased electricity costs for ratepayers. What are the impacts of the plan’s recommendations? What are the associated costs to those existing businesses that are dependent on high energy consumption? Are these investments the right ones for the Commonwealth? Does the growth of new jobs created by the grants and incentives justify the jobs lost due to high energy costs?  Besides the anecdotal evidence, what are the firm data regarding these investments and the return in terms of jobs, tax revenue, and economic development?

Also overlooked is the question of whether the aggressive greenhouse gas target for Massachusetts will significantly alter the projected impacts of climate change in the Commonwealth. The report describes projected climate change threats that include a rise in sea level, more frequent severe storms, and temperature spikes in the summers. If the Commonwealth is successful in meeting (and even exceeding) its greenhouse gas reductions at a substantial cost to the public, does anyone credibly believe such reductions would meaningfully reduce potential climate change impacts?

The Massachusetts Department of Energy Resources needs to be more open and transparent with its decisions to pursue mitigation plans. These should be grounded in sound economic cost-benefit analyses using data from its regulated industry stakeholders. Advancing policies without reliable data and analysis of their impact could cause the state to make decisions that have unintended negative consequences on our future economic growth.

Critical first steps would be to educate the marketplace, provide additional support to make these methods financially attractive, and recognize that the state of the economy is an important determinant of when to require greater efficiency measures. We should be researching whether there are more cost effective ways to get to the appropriate goals before we accept and mandate the most expensive solutions.

Increased energy efficiency in new development and existing buildings is a prime target for achieving the 2020 target goals. But it is important to keep in mind that not all markets around the Common­wealth are created equal. Statewide energy mandates for all building types will create a disincentive to develop new properties in areas where the markets cannot absorb the increased costs. Unfortunately, many of the “one-size-fits-all” government proposals do not account for varied building types or tenant energy requirements, and they rarely take into account actual investment/payback ratios.

The more stringent energy efficiency requirements disregard the mismatches between who pays the cost of an option (owner) and who gains the benefit (tenant), making it difficult to justify economically the investment in the first place. There is also too much emphasis being put on regulating the energy efficiency of the building shell. Much of a building’s energy use actually falls within the tenant spaces and therefore is not directly influenced by mandates for increased energy code efficiency. However, with appropriately scaled tax incentives, owners could receive financial benefits for the upfront investment and tenants could see reductions in their operating costs.

On a national basis, rather than using regulatory mandates, President Obama has announced the Better Buildings Initiative, an innovative economic development program using tax incentives to make existing buildings more energy efficient through retrofit projects. The amount of the incentive would grow with increased energy savings, encouraging ambitious projects and also rewarding more moderate retrofits that achieve meaningful levels of energy savings.

Since Massachusetts has among the highest energy costs in the nation, it makes good business sense to reduce a property’s controllable operating costs, especially if it can help to also reduce greenhouse gas emissions. Becoming more energy efficient is an important consideration in today’s commercial real estate industry. Many developers, owners, and tenants understand that it makes economic sense to find ways to increase initial capital investments for energy efficient technology and design elements that will result in a reasonable payback of energy savings.

As a result, the market is becoming more responsive to the need for energy efficiency, especially with volatility in energy costs, and a more educated and demanding tenant base. We have already seen that, without regulatory requirements, more buildings are now built as LEED-certified “green buildings.” Before the state moves toward aggressive mandates, policy makers should consider incentive-based solutions. Doing so could leverage and support private investments in order to help businesses reach higher levels of energy efficiency. MassINC should follow-up its report with a more critical look at the existing, proposed mitigation measures, as well as other alternatives, which could lead the Commonwealth down the right path to our greenhouse gas reduction goals.  

David Begelfer is the CEO of NAIOP Massachusetts, the Commercial Real Estate Development Association. He also is a MassINC board member.

Restaurants in Boston get infrequent inspections

Restaurants in Boston get infrequent inspections

the massachusetts sanitary code requires municipalities to check restaurants for health code violations twice a year, but the city of Boston often is doing the inspections less frequently, in some cases as little as once in two years.

“We don’t have the resources to do every place twice a year,” says Charles Cook, assistant commissioner of the health division of Boston’s Inspectional Services Depart­ment (ISD). “So we do it based on what is called a risk-based inspection schedule. We have urgent, high, medium, and low risk. The higher the risk [to the public health], the more inspections they get.”

State officials say municipalities can adopt a risk-based inspection schedule instead of the standard twice-a-year approach, but they have to first seek permission from the Department of Public Health, which Boston failed to do. Cook says he will ask for the state’s approval.

ISD inspections, which are unannounced, can trigger three categories of health code violations: non-critical, critical, and critical foodborne. Left unchecked, both non-critical and critical violations can lead to critical foodborne violations, which can directly cause illness. An example of a non-critical violation is the failure to label food containers, while the presence of dirty food surfaces is deemed a critical violation. An example of a critical foodborne violation is storing raw food alongside cooked food, which can lead to bacteria in the raw food contaminating the cooked food.

Some restaurants in Boston aren’t being inspected at all for more than a year at a time. For example, the Island Creek Oyster Bar and Deuxave on Commonwealth Avenue, both categorized as medium–risk, were never inspected last year. Cook blamed “administrative error” and ordered inspections after learning of the lapse.

The inspection of the Island Creek Oyster Bar in February turned up 18 health code violations, one of them critical and five of them critical foodborne. At Deuxave, the restaurant was cited for seven violations, one of which was critical foodborne.

Island Creek and Deuxave weren’t the only restaurants that weren’t inspected for more than a year. For example, Smith & Wollensky, Lala Rokh, and Mare, all medium risk, were never inspected in 2011, and Locke-Ober, Mistral, Sorellina, and O Ya, all medium risk as well, were never inspected in both 2011 and 2010.

Restaurants cited for sanitary violations are supposed to be reinspected to make sure the problems are corrected, but that doesn’t always happen. For instance, Express Coffee, Pigalle, Prezza, and Casa Romero (all considered medium-risk restaurants) were cited for violations in March or April of 2011. Not until 2012, after inquiries from Common­Wealth, did they get reinspected. Pigalle, Prezza, and Casa Romero passed, but Express Coffee was cited for another 13 health code violations, three of which were of the critical fooborne type.

As of June 9, for the previous 60-day period, only three Boston restaurants failed their inspections and were temporarily shut down. When asked for a copy of the criteria for failing a restaurant or for the lesser sanction of reinspection required, Cook says there is no written policy, adding, “[It] depends on type and number of violations.”

During a March 6 inspection, the Cheers restaurant at Faneuil Hall Marketplace was cited for 39 health code violations, two of them critical and eight of them critical foodborne. Yet the medium-risk restaurant “where everybody knows your name” was allowed to stay open and instead only a reinspection was required.

“Cheers [was not suspended] because critical violations were able to be taken care of at the time of the inspection by the person in charge,” Cook says. But records indicate a reinspection on March 26—20 days later—uncovered 13 violations, some of which were new. Not until another reinspection on April 2—almost a month after the initial inspection—were all the violations corrected.

The same scenario played out at Mamma Maria. On May 3, the North End medium-risk eatery was cited for 24 health code violations, two of them critical and five of them critical foodborne. Yet Mamma Maria was allowed to stay open as well. When the inspector returned four days later for a reinspection, only four of the 24 violations had been corrected. And when the inspector returned two weeks later, two violations still had not been corrected. At press time, a third reinspection was pending.

Some Boston restaurants are being cited over and over for the same critical health code violations. The Barking Crab, a restaurant in the urgent category, was cited during an April inspection for having dirty food surfaces, a critical violation. The restaurant was cited for the same infraction four times before in 2011 and twice in 2010.

At one of The Barking Crab’s inspections last year, the in­spector wrote, “There is peeling paint on the counters, door frames, walls.?This peeling of paint may not be part of the decor.” One year earlier, the inspector’s report said the same exact thing.

The Barking Crab has had seven ISD inspections since 2010, all of them requiring reinspection. Since 2010, the restaurant has been cited for 57 health code violations—11 of them critical and nine of them critical foodborne, with many of them being repeat violations.

“We maintain a close working relationship with the city of Boston and take all requests for compliance very seriously,” says Robert Webb, The Barking Crab’s director of operations, in a statement issued on March 16. Just a month later the restaurant was cited for nine health code violations, including three critical foodborne.

Cook, the assistant commissioner of ISD’s health division, says it’s not difficult for restaurants to understand what needs to be done in order to comply with ISD health code requirements. But he’s stumped why so many restaurants do a poor job of complying with those requirements. “I can’t read their minds,” he says.

Of the 2,922 food service establishments (including mobile trucks) in Boston, there are none in the low-risk category, 2,784 in the medium-risk category, 31 in the high-risk category, and 107 in the urgent category.

The higher the risk, the more times a restaurant is supposed to be inspected. But that’s not always the case. For example, AFC Sushi at Simmons College required two reinspections in 2011 and one in 2010, but the restaurant is in the medium-risk category, while AFC Sushi at UMass Boston has passed its last five inspections since 2010, yet it is listed in the urgent category.

“There needs to be better monitoring and accountability systems in place and we are working on getting them implemented,” Cook says.

Homepage photo by Christopher Peplin and published under a Creative Commons license.

Galvin's slow motion public records office

Galvin’s slow motion public records office

the state office charged with ruling on the appeals of citizens whose requests for public records have been denied operates at a snail’s pace.

About 250 appeals are filed each year with the state Division of Public Records, but it often takes months to get a decision even though four full-time lawyers plus a full-time administrative assistant work in the office, and many of their decisions are copy-and-paste jobs because the appeals are so similar.

“I don’t know what they do with their time,” says one lawyer who has filed a number of appeals with the office and spoke on the condition of anonymity because he deals with officials there frequently. “Most of the cases they see are same-old, same-old.”

Secretary of State William Galvin, the elected official who oversees the Public Records Law, declined to comment for this article, as did Shawn Williams, who, as supervisor of public records, heads up Galvin’s public records division.

Cambridge Chronicle reporter Scott Wachtler last October filed a public records request with the city of Cambridge for copies of settlement agreements made with two city employees, Mary Wong and Linda Stamper. When the city denied Wachtler’s request, he filed an appeal last November. He thought the appeal would be handled quickly because Galvin’s own guide to the Public Records Law states that settlement agreements are public records.

Yet it took six months for Wachtler to get a decision, which was in his favor. And what really irks him is that he couldn’t find out what was going on with his appeal during that six-month period.

“I made three calls to the supervisor’s office, but no one has ever called me back,” says Wachtler. “They really move at a glacial pace over there.”

At least Wachtler received a ruling. Boston criminal attorney Rosemary Scapicchio filed a public records appeal on November 22, 2010, after the State Police denied her request for certain criminal records. Amy Codagnone, an attorney in Scapicchio’s office, says the public records division never responded to the appeal, even to acknowledge its receipt, which was confirmed by postal records.

A compelling case with a delayed response time in­volved Slate reporter Emily Bazelon’s efforts to obtain a copy of the settlement agreement between the town of South Hadley and the parents of Phoebe Prince, the 15-year-old South Hadley High School freshman who hanged herself, a death widely linked in local and national media to bullying by a number of Phoebe’s fellow students.

Slate is an online daily news website owned by The Washington Post. Bazelon had written a series of 12 articles on the Prince case, including a three-part series, “What Really Happened to Phoebe Prince?”

Last May, Bazelon filed a public records request with the town of South Hadley seeking a copy of the Prince settlement agreement. The very next day, town counsel Edward Ryan, Jr. denied Bazelon’s request, saying that the document was being withheld based on attorney/client privilege as well as a confidentiality provision in the settlement. He also said that no taxpayer funds were used to pay the Prince family, since the town’s insurer paid the settlement.

Last July, Bazelon filed an appeal with Williams, the head of Galvin’s public records division, arguing that a settlement agreement is not an attorney-client communication and there is no blanket exemption in the Public Records Law for confidential records. She also said the fact that the settlement was paid by the town’s insurer did not mean there was no financial impact on the town, since the insurer could respond by raising the town’s future premiums. (Subsequent documents revealed that the town indeed wound up paying a higher premium for its liability insurance—$10,255 more—as a result of the Prince settlement.)

Last August, South Hadley provided Williams with a copy of the settlement agreement for his eyes only so he could make a determination as to whether the settlement agreement was a public record. Almost four months later, Williams still hadn’t reached a decision, so Bazelon convinced the American Civil Liberties Union of Massa­chu­setts to sue the town in court. Court suits involving public records denials are rare because they can be costly.

It took the court only three weeks to rule that South Hadley had to turn over to Bazelon the settlement agreement, which indicated the Prince family received $225,000 with no admission of wrongdoing by the town. Two weeks later, Williams closed the public records appeal after he was told by a reporter that a court had already ruled.

Changes in laws keep teen drivers safer

Changes in laws keep teen drivers safer

for most teens, obtaining a drivers’ license means newfound freedom and independence. For many decades, it also meant something more sobering: a higher risk than any other age group that they would die on the road.

But new statistics indicate that risk is diminishing. Teen driver fatalities have fallen to a record low in Massa­chu­setts and nationwide.

According to the National Highway Traffic Safety Admin­istration, the number of teen drivers who died in car accidents in Massachusetts dropped to a low of 51 in 2010, the most recent year for which data are available. That made 2010 the third straight year that teen driver fatalities fell in Massachusetts.

Across the country, only 3,115 teens were killed in 2010, a far cry from the high of more than 8,000 teens who were killed in 1975. Even at the lower number, car accidents remain the leading cause of death among teenagers.
Mary Maguire, spokeswoman for AAA Southern New England, says the state’s move to a graduated drivers’ license with a new junior operators’ license (JOL) in 2006 is a major reason for the drop. “The JOLs have definitely been a factor. There is no doubt about that,” Maguire says.

Different versions of a graduated license system, designed to gradually grant a teen driver more privileges as he or she gains more experience on the road, have been enacted in all 50 states, starting with Florida in 1996. In Massachusetts, teens can get their learner’s permit at age 16 and must take 30 hours of a driver’s education course along with 40 hours of supervised driving with someone over 21. The driver’s education requirement is waived if they are over 18.

After six months with a permit, teens may take a road test to obtain a junior license. Junior operators cannot drive with underage passengers in the car and cannot drive at certain hours of the night without adult supervision. They face license suspension and/or fines if they violate the restrictions or receive a speeding ticket. The JOL restrictions are lifted when the licensee turns 18.

“Those laws are aimed at taking teens out of the situations that research shows are the most risky—things like driving with other teen passengers in the car and driving at night,” says Russ Rader, spokesman for the Insurance Institute for Highway Safety.

Peter Ellis, a 17-year-old from Walpole, is one of those affected by the JOL law. Ellis, who got his license earlier this year, has so far avoided getting into an accident or even being pulled over. While he readily admits he isn’t a fan of the passenger restriction or waiting so long bet­ween permit and license, he acknowledges the safety aspects. “I know that with passengers in the car, I’m probably going to crash so I just don’t do that,” Ellis says.

Another major component of the law is the requirement that parents attend a special class before their son or daughter can get their license. Maguire says the class—which Massachusetts is the first and, so far, only state to require—has been highly successful.

“The parent class has enlightened a lot of parents and made them aware of the need to place restrictions on their teens,” Maguire says.

Maguire thinks the state’s texting-while-driving law, passed in 2010, may also be a factor in the reduction in fatalities. The law bans all drivers from texting, but includes a total ban on junior operators from using cell phones in any manner while driving. An 18-year old Haverhill man was found guilty in June of killing another driver while the then 17-year-old teen was texting and driving and was sentenced to a year in jail.

“You reduce the number of distractions for teens who are the most at-risk group of drivers, and that makes a difference,” Maguire says.

But because teen crash statistics aren’t yet available for 2011 or 2012, Maguire cautioned that it might be premature to declare the ban a success. Rader also says it’s too early to tell how successful the ban actually is. A 2008 study by the Insurance Institute conducted in North Carolina found that even after a cell phone ban was enacted, teen­agers actually used cell phones while driving more than they did before the ban.

For Ellis and other teens, economic conditions may also be at play. Because he can’t afford to buy a car and relies on his parents’ cars and gas to get him where he needs to go, he isn’t on the road very often. The statistics suggest he’s not alone. According to the federal traffic safety administration, Americans as a whole drove 1.2 percent less in 2011 than they did in 2010—a decrease of 35.7 billion miles. The Federal Highway Administration also reported that total gasoline consumption went down by 1.9 percent between 2010 and 2011.

“I would think that the high price of gasoline has had a chilling effect on teen driving,” Maguire says. “I think gas prices have led all drivers to drive less.”

Glove, glove me do

Odds are one of the four Republican state senators in Massachusetts has a better chance of getting one of his bills passed than he does of catching a foul ball at a Major League Baseball game. Unless that senator is Robert Hedlund.

The 11-term incumbent from Wey­mouth is a magnet when it comes to foul balls, going back to grammar school when former Red Sox third-base coach Eddie Popowski fielded a couple foul balls and tossed them into the stands, where the young Hedlund grabbed them.

Since then, Hedlund has caught three more foul balls at Fenway Park and another at the old Shea Stadium in New York. He also caught one at a spring training game, though he dismisses that the way ball players dismiss Grapefruit League results. (A couple years ago the Wall Street Journal tried to determine the likelihood of catching a foul at a Major League Baseball game and put the odds at somewhere between 884 and 1,189 to 1.)

“My first one was a one-hander off the bat of Don Baylor,” says Hedlund, relishing the memory. “I held onto my hot dog with one hand and snagged it with the other.”

He missed a ball a few years ago in Cincinnati when he dropped a foul that smacked his hand at “about 100 miles an hour.”

Hedlund says, tongue firmly implanted in cheek, that the foul ball experience has made him a better legislator. “It’s taught me to be alert, nimble, be able to maneuver and adapt, stay focused and, of course, to be fiscally conservative, since I didn’t drop the hot dog,” he says.

Sex offenders challenge Lynn's residency ban as unconstitutional

Sex offenders challenge Lynn’s residency ban as unconstitutional

a court challenge to a Lynn ordinance that bans Level 2 and 3 sex offenders from living within 1,000 feet of a school or park could impact 43 other cities and towns across the state that limit where sex offenders can live or go.

 
A map of Lynn outlining areas from which Level 2 and 3 sex offenders are prohibited from living.
Prohibited areas are higlighted in pink.

The suit in Essex Superior Court by the American Civil Liberties Union of Massachusetts alleges that Lynn’s residency ordinance violates both the state and federal constitutions because it unlawfully restricts offenders’ freedom. The complaint also claims that Lynn’s ordinance violates the Massachusetts home rule amendment, which forbids municipal laws from interfering with state policy.

John Reinstein, one of the Massachusetts ACLU lawyers representing the offenders, says they chose to bring the suit in Lynn because of the city’s size, the large number of offenders living there, and the scope of the restrictions. The suit alleges that about 95 percent of residential properties in the city are covered by the ordinance’s regulations prohibiting offenders from living in proximity to the city’s many parks and schools.

“There’s really nothing left after you get through drawing the circles around the facilities,” says Reinstein.

State law regarding sex offender management currently bans Level 3 offenders from living in nursing homes, rest homes, or intermediate care facilities for the mentally disabled. These restrictions are in addition to the state’s role in registering sex offenders and publishing Level 3 offenders’ information online. The Sex Offender Registry was the focus of a feature in CommonWealth’s spring issue.

A growing number of municipalities are taking the additional step of placing restrictions on where sex offenders can live, travel, or both. In cities such as Revere, Fitchburg, and Everett, sex offender residency ordinances typically prevent an offender from establishing a residence within a certain distance of a location frequented by children, such as a school or park.

Other restrictions involve banning offenders from visiting places where children may be present, like the public library. These restrictions are often deemed “child safety zones” and are found in communities such as Lowell, Fall River, and New Bedford. Some municipalities, such as Lynn and Spring­field, combine the two and ban offenders from both setting up a residence near child safety zones and visiting them. The ordinances have so far been untested by Massachusetts courts, and a decision on Lynn’s rule could open the door for challenges in other places or reinforce the restrictions communities have passed, according to legal experts.

The Lynn ordinance has already had an impact on at least one individual not involved in the lawsuit. Late last year, Richard Galzerano, a Level 3 sex offender, moved into a house on Daytona Road in Lynn near Shoemaker Elem­en­tary School, a move that represented the first cited violation of Lynn’s amended ordinance. Galzerano had been convicted in 2008 enticing a child under 16, according to the Sex Offender Registry Board’s website.

In early January, amid public outrage, the city started fining Galzerano $300 per day until he moved out later that month, according to news reports. The Sex Offender Registry Board’s website indicates Galzerano now lives in Peabody, which does not have a residency ordinance.

Lynn City Council President Timothy Phelan defends the ordinance and says he’s not concerned about how much space remains available to Level 2 and 3 sex offenders. “Not only do I think it’s a good ordinance but I think I have a responsibility and obligation to protect” children and the community, says Phelan.

Phelan says he will abide by the law if the judge strikes down the ordinance, but argues the community should have a say in where sex offenders can live. “I don’t need a judge to tell me what’s right and what’s wrong,” he says. “I think that every mother and father should be the judge in rendering this decision.”

Reinstein says no matter which way the court rules residential bans on sex offenders in any community could be affected. More specifically, if the court decides that Lynn’s ordinance indeed interferes with state policy, that finding would have larger implications for other communities than if the judge strikes it down on grounds specific to Lynn, says Rein­stein. Lynn city officials have agreed to refrain from enforcing the ordinance until a hearing occurs. A hearing has not yet been scheduled.

Fitchburg City Councilor Dean Tran played a key role in passing Fitchburg’s sex offender residency regulation, which restricts Level 2 and 3 offenders from living within 1,000 feet of any school, park, or child care facility. Tran says the Massachusetts ACLU made similar threats to sue when he worked on Fitchburg’s ordinance, and he pointed to a federal case in which a statewide sex offender residency restriction in Iowa was upheld.

“The organization never goes through with the threat simply because the circuit courts have already rendered favorable decisions for the ordinances. So a precedent has already been set at the federal level,” says Tran. “It would be a monumental task for the ACLU to try to overturn the ordinances that the cities and towns across the Common­wealth have enacted.”

Dr. Laurie Guidry, a clinical and forensic psychologist and the president of the Massachusetts Association for the Treatment of Sexual Abusers (MATSA), argues that residency restrictions have not been proven effective at keeping communities safe.

“We don’t want to keep [engaging in] practices and policies that don’t work. I certainly concur with the public’s concerns about being safe—it’s a priority,” says Guidry. “And if this measure actually kept communities safer, we, MATSA, would support it.”

Risky business

Risky business

When it comes to cleaning up a mess at the former Medfield State Hospital, can the state police itself?

Correction: The story says a second budget amendment proposed by Sen. James Timilty would require the Division of Capital Asset Management to clean up the former hospital site so it could be used without any restrictions. The amendment, which was subsequently signed into law, actually requires DCAM to review its cleanup plan and then report to the Legislature whether that plan is based on a “standard of unrestricted use for the site.”

 
“You either clean it up correctly or you don’t clean it up correctly,”
says John Harney of Medfield.

Decades before cities and towns learned to deal with waste in eco-friendly ways, workers at Medfield State Hospital threw refuse into a dump on the banks of the Charles River. Noxious medical waste, mixed in with a gumbo of bricks, glass, asphalt, concrete, and other debris, never left the hospital grounds. Most of it went into the ground, right along with metals and other toxic chemicals. When the hospital closed in 2003 after more than a century, the on-site landfill was up to 15-feet deep in places.

The Massachusetts Division of Capital Asset Management, the agency that owns the abandoned property today, acknowledges the state has the sole responsibility for cleaning up the land and protecting the health of Med­field residents. DCAM’s cleanup plan for the former hospital site involves removing some of the 75,000 tons of waste, trucking it off-site to dispose of it at a special facility, and covering the rest with a synthetic liner and soil barrier. Officials say the remedy eliminates risks to people and the environment and is appropriate for the location and the type of contamination involved. But of the four possible options the state examined, it’s also the least expensive.

The residents of this well-to-do town 17 miles southwest of Boston say the state shouldn’t be pinching pennies when it comes to cleaning up pollution, particularly in their community. “You either clean it up correctly or you don’t clean it up correctly,” says John Harney, a Medfield resident who has been heavily involved in the hospital cleanup debate. “I don’t see that there’s a third way.”

US Rep. Stephen Lynch, whose current district includes the town, says that there are intangibles that are more important than dollar signs in the Medfield State Hospital cleanup. “It’s our obligation to leave the site in the condition that we found it before the state began their operation there,” he says. “I know that DCAM is pushing the capping option as a way to save money.”

Many of the residents wonder whether the state, when it comes to cleaning up its own mess, can police itself. State Sen. James Timilty, a Walpole Democrat who represents Medfield, said as much in a letter to Gov. Deval Patrick, arguing that the state wouldn’t approve a cleanup plan proposed by a private company if it didn’t address 100 percent of the waste at the site.

“It’s a classic case of how clean ‘clean’ should be,” says Greg McGregor, a Boston environmental attorney.

Medfield and DCAM are so far apart on how the cleanup should be done that the town requested that a mediator be brought in to help the parties sort out the issues and see if common ground can be found. Surprisingly, DCAM agreed, and at press time the two sides were talking but remained far apart. All the town and state officials who commented for this story made their remarks before the mediation process was scheduled to begin in mid-June.

Dumping on Medfield

The abandoned Medfield state hospital has the vibe of a quaint, if creepy, New England college campus on a long break. The majestic 19th century red brick buildings, many of them with rotting porches and boarded up windows, earned the site a spot on the National Register of Historic Places in 1994.

When the hospital opened in 1896, mental health professionals thought a farm-like setting would be therapeutic for mentally ill patients. Patients grew crops and raised livestock, and the hospital officials ran the facility like a town within a town. The hospital had its own power plant, its own water and sewer systems, and, for nearly a century, its own dump.

Modern waste management practices slowly replaced the toss-it-out-back mentality of yesteryear and the hospital began sending waste off-site for disposal in the early 1990s. The main toxins that remain in the dump area are metals, such as lead and mercury, and incineration by­products, such as dioxins and partially burnt coal and oil. There is asbestos in the ground, too, which is not a hazard until it is exposed to air.

The old dump site covers about three acres and is located just west of the northernmost section of the hospital campus, near a bend in the snaking Charles River. There are several other polluted areas on the 269-acre hospital property, including petroleum-laced sediment in the Charles River. But most of the polluted areas other than the dump have either already been cleaned up or the town and the state are working on what needs to be done. DCAM has spent about $3 million so far cleaning up polluted areas at the hospital site.

The dump site itself has become contentious because it borders the Charles River, an aquifer runs underneath the landfill, and one of the town’s six water wells is about 3,000 feet away. The abandoned dump is also close to the old hospital campus, which the town of Medfield has shown interest in purchasing and possibly redeveloping.

Federal environmental officials reviewed the status of some open sewers on the hospital property in the mid-1990s and concluded they weren’t dangerous enough to warrant adding the area to the Superfund program reserved for the most hazardous waste sites in the country. That left environmental jurisdiction to other federal, state, and local programs. DCAM has been categorizing all the pollution on the property and developing remediation plans. DCAM has held more than 30 meetings with town residents about its cleanup plans over the last three years.

The Medfield site falls in a category that is one step below the classification for the state’s most hazardous waste sites. As a result, oversight of the cleanup process has fallen to DCAM and not the state Department of Environ­mental Protection. The actual remediation will be carried out by independent professionals who will do the work and then certify that it meets state standards. State environmental officials audit some remediation sites for compliance once the cleanup is completed.

The Medfield State Hospital cleanup is the latest of the state’s efforts to rehabilitate abandoned state hospitals. Over the past several decades, DCAM has spent about $57 million on remediation of contamination at six other closed sites. MassDevelopment, a quasi-public state authority, spent another $6 million removing asbestos at Northampton State Hospital as part of a development project there. Some of these sites are near wetlands and streams, but none spawned the type of controversy that has occurred in Medfield or triggered a public review process.

The most expensive cleanup was at the former Boston State Hospital site, where about $29 million was spent removing asbestos, petroleum, and various metals. Nearly all of the contaminants at the Boston site were removed to make way for housing developments and a Massachu­setts Audubon nature center.

Cleanup crew

The state’s first proposal for dealing with the Medfield hospital dump site in 2009 called for removing just a small fraction of the waste. Town residents panned that plan so DCAM went back to the drawing board, developing a menu of four options.

One option was a roughly $17 million plan to remove and dispose of nearly all the waste at the site. A second proposal costing $7.4 million called for removing about half the waste, capping the remaining contamination with a liner and soil, and shoring up the riverbank and restoring wetlands with new plants, trees, and shrubs. A third idea involved extracting the waste only from an area of the dump near the town well.

The fourth plan, and the one favored by DCAM, would cost nearly $4 million, remove roughly 15 percent of the contamination at the dump, and install a liner-and-soil cover system and plantings. The DCAM plan would also require periodic monitoring of the site for 30 years and replacement of the cover system every five years. To protect the liner-and-soil cover, residential and agricultural uses would most likely be prohibited at the site, though the restrictions have not been finalized. Once all the cleanup work is complete, the area would be turned over to the Department of Conservation and Recreation, which would own the land in perpetuity.

 
Medfield resident William Massaro says the safest course is cleaning up
as much of the site as possible.

Under Massachusetts hazardous waste regulations, a contaminated site doesn’t have to be cleaned up to a pristine state to be safe. “I have always said that I define the state’s responsibility as ensuring that the site poses no health or safety risks to the community,” says Carole Cornelison, the DCAM commissioner.

State officials say their cleanup plans for the dump and the riverbed carry “no significant risk” to human health or the environment. Under the state’s rules for evaluating and cleaning up hazardous waste sites, a clean-up plan that meets the “no significant risk” standard “means that long-term exposure to chemicals from the site is not hazardous to health.… A finding of no significant risk means a site is clean enough, and no further action is required to protect human health.”

DCAM began testing samples from the landfill and the river to gauge the extent of contamination in 2005. Some 600 samples have been taken and tested and, aside from some seasonal differences in the results that fell within normal limits, nothing was amiss. DCAM officials say they have “gone over and above” previous ecological and health investigations. (Medfield officials have not been satisfied with the state’s tests and have asked for permission to do additional testing; the agency agreed to that request as long as state officials were present.)

Sandra Duran, who directs DCAM’s building maintenance and operations, says the Medfield town well near the hospital dump site is uphill from the contamination, which makes it physically impossible for the contamination to seep into the well due to the geology of the site. Duran says for 12 years, the town has independently tested its own water supply. “Never once has any contamination showed up in that data,” she says. To make sure that remains the case, state officials plan to install a monitoring system that will keep tabs on any changes in the area.

However, DCAM noted in one of its earlier draft plans that there is an “unacceptable risk to human health if groundwater in the [land]fill is used as a source of drinking water in the future” due to chemicals from another area of the hospital campus that are being addressed as part of a separate cleanup plan. The reference to groundwater concerns was dropped once state officials decided to limit future uses at the site.

“It won’t be an area that will be available to the town for any drilling for well water,” says Cornelison.

All about the money?

Three years ago, DCAM officials told Medfield residents that the hospital cleanup would not be about money, but most of the town is now convinced it is about money. DCAM Deputy Director John O’Donnell told town residents that “human health and the environment” were the top priorities in the cleanup of Medfield State Hospital. “This is not a case of we’re going to do what we can do for the cheapest amount of money, just because that’s all the money we’re going to spend,” O’Donnell said, according to a transcript of the meeting.

But after DCAM began pushing for the cheapest clean­up alternative, town residents felt they had been misled. “It appears that cost is the only factor in terms of a more significant cleanup that’s better for the environment and better for the state ultimately,” says John Thompson, chairman of the town’s state hospital environmental review committee, whose day job includes managing hazardous waste cleanups. DCAM officials said the cleanup wouldn’t be about the money, but the town is convinced it is about the money.Medfield residents have responded by mobilizing their neighbors, turning out at meetings, and raising questions about the state’s environmental assessments and the motivation for them. Many residents remain convinced that the state is taking a short-term view of the cleanup, while they focus on the long-term and the potential for the site.

Some towns rely on unpaid residents who lack experience in the area they are overseeing, but environmental cleanup experts from within the community volunteered to make Medfield’s case, and officials also hired additional outside consultants. The town’s congressman and state senator rallied to the cause. Medfield’s fight with the state has garnered coverage in the local press and landed on the front page of The Boston Globe.

Margaret Stolfa, a former Department of Environ­­mental Protection general counsel who began working on hospital environmental issues for the town earlier this spring, says she is mystified by the state’s reluctance to take a comprehensive approach to cleaning up the dump site.

“Where a private party might want more finality now and be done with a cleanup, it appears that DCAM is not worried about future risk for some reason,” she says. “The Commonwealth is the only known liable party and they should be concerned about it.”

If the landfill were further inland, the state’s proposal probably wouldn’t attract much more than a ripple of opposition. But fears about future groundwater contamination are driving the town’s insistence on the most thorough cleanup possible. Town officials worry about their nearby well, the aquifer underneath the old dump site, and the potential for fallout from future Charles River flooding. In essence, the town answers all the “what if questions” with a push for full cleanup.

William Massaro, a Medfield resident handling hospital remediation issues for the town, says the safest possible course is cleaning up the site as much as possible. “Who is going to take responsibility 10 or 30 years from now when you find a new contaminant or the EPA changes how many parts per something or another you can have in the water?” he says.

Deirdre Menoyo, who served for six years as an assistant commissioner of DEP’s Bureau of Waste Site Cleanup, questions why the state wants to give up on a future water source when fresh water scarcity in Massachusetts is a real problem. “A potentially productive aquifer in this day and age should not be written off,” she says.

Menoyo, referring to her own experience in state government, also has little faith in the agency to follow through on liner replacement plans and does not believe the town should rely on the vagaries of future funding and the shifting concerns of governors and lawmakers. “I’ve had things cut that should have been funded and commitments not followed through on,” she says.

Flooding is another flashpoint for Medfield. There are concerns that flood water could dislodge the liner that DCAM wants to use to cover the dump area and expose the waste, especially if flooding persists for an extended period of time. State officials say the soil-and-liner cover system could withstand storm water runoff and flooding, but town officials are not convinced.

The Charles River is prone to flooding in the Medfield area, and the hospital site is in a 100-year flood plain, an area that has a 1 percent chance of being hit with severe flooding in any given year. Town officials believe the dump site, particularly if it’s covered with a liner, will accentuate flooding because water will have a harder time seeping into the ground. The US Army Corps of Engineers says it plans to study this issue as part of its oversight of tracts of land bordering the Charles River that provide flood protection.

The Medfield hospital campus has been flooded in the past. In 1938, the year of the most severe hurricane ever to hit New England, the state hospital’s annual report noted that two severe rainstorms put large sections of the campus under water. Medfield also regularly experiences severe flooding, with notable deluges in 1955, 1979, and 2006.

“This [plan] might be an appropriate remedy if this site were not located next to the river,” says Margaret Van Deusen, the Charles River Watershed Association’s deputy director. “But it is.”

Lynch, the town’s congressman, worries that there will always be a concern about the contamination leeching into the water table or even the river if a complete remediation doesn’t happen. He is convinced that DCAM can do better. “They are pushing to do the minimal amount in compliance with the regs, I’ll admit,” Lynch says. “But we have higher expectations, especially given the sensitivity of this site.”

Timilty has applied legislative pressure to DCAM. He tried unsuccessfully to drum up an additional $5 million for the Medfield cleanup through an amendment to the Senate version of the 2013 state budget. A second amendment that was approved in the Senate budget would require DCAM to clean up the hospital site so that it can be used without any restrictions and report on those and other findings to the Legislature. The final state budget was pending at press time.
The biggest wildcard in the struggle over the cleanup of the hospital site is the mediation process now taking place. Agreeing to mediation was an unusual move for DCAM because state regulations do not require the agency to sit down with the town. Agency officials are tight-lipped about what they expect the mediation to accomplish and how long they will keep at it.

Should the mediation teams find common ground, any agreement must go before the board of selectmen at a minimum. And the Legislature could be looking over the agency’s shoulder through Timilty’s proposed reporting requirement, another uncommon development in this environmental remediation project.

Town officials have given no indication that they will accept anything less than the cleanest possible cleanup. McGregor, the environmental attorney, says the mediation could work if both sides show a willingness to compromise. “When reuse is involved, you have to have a level of clean-up that reaches consensus,” he says.

But consensus won’t be easy, as attitudes have hardened among town residents. When state officials came to town hall in April to explain their cleanup plan, they were greeted by a small group of protestors outside and a hostile audience inside. A visibly upset Jessica Benson seemed to sum up the town’s position by telling the audience about a conversation she had about the state’s proposal with her young daughter. After explaining that the state intends to leave most of the hazardous waste and cover up the remainder with a liner and dirt, Benson said her daughter looked at her and replied: “So it would be like us only cleaning the kitty litter

halfway and then telling the cat not to go in the area that’s full of poop?”

Benson thought her daughter hit the nail on the head. “An eight-year-old gets this,” she said.