Daily crude oil through Davis… Averted for now

Repost from the Davis Vanguard
[Editor:  See also the February 16 follow up in the Vanguard by Elizabeth Lasensky, Phillips 66 and Valero – A Tale of Two Oil Train Projects.  – RS]

Daily crude oil through Davis… Averted for now

By Lynne Nittler and Jean Jackman, February 14, 2016
Protesters of Oil Trains in Benicia / Courtesy Photo
Protesters of Oil Trains in Benicia / Courtesy Photo

It has been an exhausting and dramatic week for Davis activists and those from Sacramento and other cities uprail from the proposed Valero Refinery expansion in Benicia.

Ten of us have traveled from Davis in two carpools to testify on the Valero Crude-by-Rail Project.   We have participated actively in the stages of a complicated public review process that began in 2013. Now a final Environmental Impact Report (FEIR) came up for a last public hearing before the Benicia Planning Commission.

A city of Davis official and a representative of the 7 regional Air Quality Management Districts also spoke.

We’ve been here before, and we were met with grateful hugs from our friends in Benicia, though we came to protect our own vulnerable city as much as theirs.

The Valero Refinery wants to bring two 50-car trains through Davis daily carrying highly volatile crude oil from North Dakota and other places. That would be 1.5 million gallons daily. It all hinges on whether or not Valero can get a permit to build a rail loading station.

Fortunately, the California Environmental Quality Act (CEQA) gave our region legal standing, and our governmental agencies and individuals used it fully with letters when the draft EIR failed to include any mention of uprail impacts. The CEQA process protects people and the environment! Without it, the uprail communities like Davis would have had no voice at all. We will defend it fiercely from those who would weaken or dismiss this legal recourse.

The Revised DEIR recognized 11 “Significant and unavoidable Impacts” uprail but dismissed them all as “impacts without mitigations” by claiming “federal preemption” of the railroads.

For the third time, our Davis Council and Yolo County Supervisors sent letters and urged the Planning Commission not to certify the Final DEIR. The Sacramento Area Council of Governments (SACOG) which represents 22 cities and 6 counties sent a letter severely critical of the FDEIR, calling for the Benicia Planning Commission to “provide full and adequate responses to our comment letters,” and “to fully evaluate all measures to mitigate the significant environmental impacts that this Project will inevitably have on our communities and our residents.”

The sticky big issue is the interpretation of federal preemption. The contract attorney for Benicia insisted that it is illegal to raise objections to anything regarding the trains because that is all governed by the feds. The Benicia staff and the contract attorney recommended allowing the refinery to go forward.

Last week, the San Luis Obispo staff demonstrated a different take on the federal preemption issue. They recommended denying an expansion of the Phillips 66 Santa Maria Refinery stating that the benefits were outweighed by safety concerns. Their Planning Commission is now opposing the project.

Fortunately, among those who testified were two lawyers from Sierra Club, two speakers for the Stanford Law School representing Center for Biological Diversity and two attorneys from Adams Broadwell Attorneys on behalf of SAFER California. All six of them put forward strong cases that the FDEIR does not meet CEQA, cannot be certified, and that the Benicia staff interpretation of federal preemption is not correct.

A Washington Post article was titled “Trains are carrying — and spilling —a record amount of oil.” It stated that “more than 141 unintentional releases were reported from railroad tankers in 2014…a nearly six-fold increase over the average of 25 spills per year during the period from 1975 to 2012 according to records of the federal Pipeline and Hazardous Materials Safety Record.”  Neighbors who witnessed 14 tanker cars derailed and exploded near Mount Carbon W.V. likened the fireball to a scene from the apocalypse.  We are all familiar with the grizzly Canadian Lac-Mégantic wreck that wiped out the downtown near the Maine border and killed 47 people.

Public comment ended at 11:30 p.m. on Wednesday night. The Planning Commissioners listened politely and attentively to five-minute public comments by over 70 people, often personal, sometimes brilliant, and all but 6 opposed. They also allowed visual power points such as the one put together by Davis resident Elizabeth Lasensky which showed oil cars rolling past hordes of people at Picnic Day, tank cars traveling over the Sacramento River (a drinking water source for many communities), and the path of oil cars through downtown and next to the Mondavi Center. In Sacramento, 13,000 children attend 17 schools in the blast area—the area vulnerable to an accident. Our California State Capitol is also in the blast zone.

 After four nights of deliberation, the Benicia Planning Commission unanimously chose not to certify the FDEIR and denied a project permit. It is likely that Valero will appeal the commission’s decision to the Benicia City Council. For detailed reporting see beniciaindependent.com.  Read our testimony at yolanoclimateaction.org.

We activists let out a big sigh of relief…for now. And feel immense gratitude to the public service, endurance and respect demonstrated by the volunteer Benicia Planning Commission.

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    Washington state requires railroads to show they could afford ‘worst case’ oil train spill

    Repost from the Bellingham Herald

    Washington asks if railroads could afford $700M oil train spill

    By Samantha Wohlfeil, February 13, 2016 6:28 AM
    Smoke rises from railway cars carrying crude oil that derailed in downtown Lac-Megantic, Quebec, on July 6, 2013. A large swath of the town was destroyed and 47 people killed in what became the worst oil train derailment in North America.
    Smoke rises from railway cars carrying crude oil that derailed in downtown Lac-Megantic, Quebec, on July 6, 2013. A large swath of the town was destroyed and 47 people killed in what became the worst oil train derailment in North America. Paul Chiasson Associated Press

    HIGHLIGHTS
    •  Three new rail safety rules scheduled to take effect March 11
    • Railroads must show they have means to pay for a ‘reasonable worst case spill’
    • Railroads disagree with new rule methods and question state authority

    Railroads that haul oil trains through Washington state will need to report whether they could afford around $700 million to pay for a derailment and spill, under a recently finalized state rule.

    As announced Feb. 9, the requirement is one of three oil train safety rules the state Utilities and Transportation Commission crafted as required under legislation that state lawmakers passed in 2015.

    The new rules, which take effect March 11:

    ▪ Require signs with basic safety information be posted at private rail crossings along routes that carry full or empty oil trains.

    ▪ Allow certain cities such as Bellingham, Aberdeen, Spokane, Tacoma, and Richland to opt into a state rail crossing inspection program to get free assistance with inspections.

    ▪ Require railroads to include financial information in their annual report to the UTC to show if they could address a “reasonable worst case spill” of oil.

    Reasonable worst case

    The portion of the rule most heavily scrutinized during a months-long comment process was the requirement to show financial ability to pay for a reasonable worst case spill. The rule required commission staff to first define what a “reasonable” worst case spill looks like, and second, calculate what cleaning that up might cost.

    THEY DIDN’T WANT THE WORST CASE. THEY WANTED SOMETHING REASONABLE.
    Jason Lewis, Utilities and Transportation Commission transportation policy adviser

    Railroads objected to the proposed spill scenarios, and argued that the requirement to show whether they could afford cleanup was pre-empted by federal law.

    Johan Hellman, on behalf of BNSF, wrote Sept. 21, 2015, that the company was concerned with a draft that had defined the reasonable worst case spill as half the train’s contents, and had set minimum cleanup costs at $400 per gallon.

    “We find both the definition and the minimum cost to be greatly exaggerated,” Hellman wrote.

    The worst case calculation was refined to be based on the fastest speed an oil train travels, but both BNSF and Union Pacific Railroad continued to object to the requirement.

    In a Dec. 7 letter to the commission, Melissa Hagan argued on behalf of Union Pacific that requiring the railroad to detail the insurance it carries, along with its ability to pay for the reasonable worst case cleanup, would “compromise the integrity of Union Pacific’s confidential business records” and was “blatantly discriminatory.”

    Other people who commented said the rule didn’t go far enough in its estimates for how much oil could spill and how much those damages could cost.

    State Sen. Christine Rolfes, D-Kitsap County, told the commission she thought the reasonable worst case spill amount was “far too conservative” and the estimated cleanup cost seemed “excessively low.”

    Dale Jensen, spill prevention preparedness and response manager for the state Department of Ecology, also wrote to say an estimated $400 per gallon cleanup cost would cover only a “portion of the overall costs of an oil spill” and “in the event of a worst case spill, the true cost of damages incurred could certainly exceed the level established within the proposed rule.”

    The commission agreed with Jensen but said the legislation refers to a “reasonable” worst case, not an absolute worst case spill.

    Calculating the reasonable worst

    In crafting the rule, commission staff looked to federal rule-making by the Pipeline and Hazardous Materials Safety Administration and Federal Railroad Administration, and to the actual worst derailment of ethanol or crude oil in North America, which happened in Lac-Megantic, Quebec.

    “Quebec was a terrible tragedy that really put a lot of these types of regulations more in the public eye,” said Jason Lewis, who helped craft the rule as transportation policy adviser for the commission.

    In Quebec, a parked, unmanned 72-car train loaded with Bakken crude oil rolled downhill, reaching 65 mph before crashing into the downtown and killing 47 people in July 2013. Sixty-three cars derailed and about 1.6 million gallons of oil leaked.

    THE WORST OIL TRAIN DERAILMENT IN NORTH AMERICA OCCURRED IN LAC-MEGANTIC, QUEBEC, WHERE 63 CARS OF A 72-CAR BAKKEN CRUDE OIL TRAIN DERAILED AT 65 MPH, KILLING 47 PEOPLE.

    Although Quebec is the worst oil train derailment to date, Washington state legislators specifically asked the commission to find a “reasonable” worst case scenario for the financial reporting requirement, Lewis said.

    “They didn’t want the worst case. They wanted something reasonable,” Lewis said. “It’s an ambiguous term that we really had to work to define.”

    The commission looked to other state rules and used PHMSA and FRA logic to scale down from the incident in Quebec, Lewis said.

    The final rule says to take the maximum oil train speed (usually 45 to 50 mph), divide it by 65 (the speed in Quebec), and account for kinetic force to get the estimated percentage of the train’s cargo they should be prepared to clean up.

    To illustrate, assume the longest BNSF crude oil unit train transported in 2015 was 110 tank cars and that those trains go 45 mph at their fastest.

    Under the new formula, the railroad needs to show whether it has the means to pay for a theoretical spill of 47.9 percent of that oil.

    Each tank car has a maximum volume of 30,000 gallons, so the train could carry at most about 3.3 million gallons.

    At a cleanup cost of $400 per gallon, the new guidelines want to know if the railroad could pay $632.3 million.

    If that train were to go 50 mph at its fastest, the reporting amount would be closer to $781 million.

    $632.3 million to $781 million
    Amount railroads need to show they could pay for a spill in Washington state if their fastest 110-car oil train goes 45 to 50 mph

    UTC staff also took into account that supertanker vessels that can carry 84 million gallons of oil through Puget Sound are required to get certificates of financial responsibility through Ecology that cap out at $1 billion, Lewis said.

    “If we went much higher in terms of total release or cost of cleanup, it would be difficult to justify a higher cap,” Lewis said.

    BNSF challenged similar legislation in California, claiming in court that federal rules pre-empt state laws that try to regulate rail.

    When asked whether BNSF would similarly challenge Washington’s rules or still had concerns about the worst case scenarios, BNSF spokeswoman Courtney Wallace wrote that BNSF was committed to work in good faith with Washington to promote safety.

    WE HAVE NEVER EXPECTED TAXPAYERS TO ASSUME THE EXPENSE OF A CLEANUP AFTER A DERAILMENT, AND WE STAND BY THE PRACTICES THAT HAVE ALLOWED US TO KEEP THAT RECORD TO DATE.
    Courtney Wallace, BNSF spokeswoman

    “Nothing is more important to us than safely moving all of the commodities we carry, including crude oil. BNSF is a common carrier and our operations are governed by the Interstate Commerce Commission Termination Act, which generally pre-empts state and local regulations of railroads,” Wallace wrote to The Bellingham Herald.

    “BNSF has a strong record of corporate responsibility,” Wallace wrote. “We have never expected taxpayers to assume the expense of a cleanup after a derailment, and we stand by the practices that have allowed us to keep that record to date. BNSF is financially sound with a long history, substantial assets and a track record of being a responsible corporate citizen.”

    Because the rule only requires railroads to show whether they could afford that level of spill in their annual report to the commission, rather than requiring they carry a certain level of coverage, the commission believes the rule does not conflict with federal laws.

    Annual reports from the railroads are due to the UTC in May.

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      VALLEJO TIMES-HERALD: Benicia commissioners deny Valero’s crude by rail application

      Repost from the Vallejo Times-Herald
      [Editor:  Vallejo Times-Herald reporter Irma Widjojo gets BenIndy’s Media Award for enduring all four late-night hearings, and for her four news reports.  See FRIDAY’s final report below and TUESDAY: Benicia Planning Commission begins hearing to decide on crude-by-rail project, WEDNESDAY: Public comment begins on Valero Benicia Refinery’s proposed project, and THURSDAY: Passionate testimonies pour in on Valero proposed project.  – RS]

      Benicia commissioners deny Valero’s crude by rail application

      By Irma Widjojo, 02/12/16, 11:45 AM PST
      The Benicia Planning Commission receives comments from the public Wednesday night, the third day of the hearing for Valero Benicia Refinery’s crude-by-rail project. About 200 people signed up to speak. IRMA WIDJOJO — TIMES-HERALD

      Benicia >> The Benicia Planning Commission has denied the use permit application by Valero Benicia Refinery to bring crude oil by rail against the recommendation of city staff.

      After four late-night meetings and hours of public testimony, the commissioners unanimously voted to not certify the final Environmental Impact Report and deny the application for the project.

      Protesters hold up signs against Valero’s proposed crude by rail project during a rally Monday at Benicia City Hall. The Benicia Planning Commission began a series of special meetings Monday to consider Valero’s permit application for the project. Irma Widjojo — Times-Herald

      “We are feeling great.” said Andres Soto, spokesman for Benicians for Safe and Healthy Community, a grassroot organization in opposition of the project.

      “It’s been a three-year battle. We knew we were right the whole time,” Soto said.

      Valero has 10 business days, beginning Tuesday due to the holiday weekend, to appeal the decision to the Benicia City Council.

      Valero officials said Friday they are evaluating the company’s option for an appeal.

      Valero Benicia Refinery General Manager Don Wilson speaks with supporters of the refinery’s proposed crude-by-rail project during a break at the Planning Commission hearing Tuesday night. Supporters can be seen wearing “It’s good for Benicia” stickers or carrying fans with the slogan. IRMA WIDJOJO — TIMES-HERALD

      “We are disappointed that the Planning Commission did not agree with the staff recommendation to certify the project EIR and approve the use permit. Most disappointing was the commissioners disregard for the opinions of a multitude of environmental and legal experts who spent over three years to evaluate this project,” said Chris Howe, Valero’s Heath, Safety and Environment director, in an email.

      In December 2012, the refinery submitted the use permit application to begin construction to allow up to 70,000 barrels of North American crude oil to be transported via two 50-car trains.

      Since then, the project has been met with a strong opposition from a number of Benicia residents, as well as those who live “uprail,” including Davis and Sacramento. The report states that there are 11 “significant and unavoidable” impacts related to the rail transport of the project.

      Though city staff said any mitigation to these rail-related impacts are preempted by federal laws, on Thursday the commissioners disagreed with the staff’s findings, calling the law surrounding the issue “murky.”

      Many attorneys representing organizations, as well as the Sacramento Area Council of Governments, said Benicia is not preempted by federal laws. One of the arguments is that the applicant for the permit is Valero Benicia Refinery, and not Union Pacific Railroad.

      “If Valero doesn’t get the permit, Union Pacific will go on business as usual,” an attorney said.

      She added that any mitigation required by the city for Valero’s project will not interfere with the railroad’s current business operation.

      Thursday night, city staff again reasserted its position on preemption, stating that any actions by the commission taken surrounding rail-related impacts are not allowed.

      “The local agency will run afoul if it adopts a regulation that will indirectly or directly affect the railroad,” said Brad Hogin, an attorney contracted by the city.

      The city is also not allowed to deny the project based on these impacts, Hogin said.

      A couple commissioners took issue with the staff’s opinion.

      “We’re asked to find that the benefits do not outweigh the risk, but we are not allowed to do anything about it,” Commission Chair Donald Dean said. “Do you see how this is a conundrum?”

      Commissioner Steve Young, who has been the most vocal during the hearing, also expressed his displeasure.

      “You’re very certain in your position, and the other lawyers are very certain of their positions,” Young said. “You’re asking us to make a decision based on what is not a set law.”

      They also said there are too many risks that come with the project, citing inadequate methods of assessing the greenhouse gas emission and traffic impacts.

      “There are serious flaws with the EIR,” Commissioner George Oakes said. “And to be told at the 11th hour that we have no options on the rail impacts, it’s not nice. … What are we really talking about here? Is it the additional profits for a couple of companies?”

      In his conclusion, Young quoted Valero General Manager Don Wilson saying that Valero will not close the refinery if the permit was not approved.

      Valero has contended that the project would benefit Benicia economically through the creation of jobs. The additional option to transport crude oil would also make the company more competitive and flexible in the market, officials said.

      The commission also has agreed that staff will work with Dean to add the commissioners’ findings into the report.

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        CBS News: Benicia Commission Derails Valero’s Plan To Deliver Crude Oil By Train

        Repost from CBS SFBay Area

        Benicia Commission Derails Valero’s Plan To Deliver Crude Oil By Train

        By Hannah Albarazi, February 12, 2016 6:28 PM
        Refinery at Sunrise
        The Valero refinery in Benicia at sunrise. (James Irwin/CBS)

        BENICIA (CBS SF) — A proposal to deliver crude oil by train to a Benicia refinery was rejected unanimously by the city’s Planning Commission Thursday night.

        The proposal, by Texas-based Valero Energy, would allow for crude oil to be delivered to Benicia’s refinery from around North America by rail.

        The planning commission, however, rejected the company’s request for approval of a use permit that would allow the refinery to transport up to 70,000 barrels of crude oil per day by rail, instead of the marine vessels currently in use. The refinery also gets crude oil via pipeline.

        The commission also declined to approve the project’s environmental impact report.

        Valero, a large source of revenue for Benicia and it’s largest private employer, pays the city a combined property, sales and utility user tax that makes up more than 20 percent of the city’s general fund revenue, according to city officials.

        But citizens spoke out this week and demanded the rejection of Valero’s proposed rail terminal in Benicia.

        The project’s Environmental Impact Report brought to light significant issues with the project, including air quality, hazards, biological resources, and greenhouse gas emissions.

        Andres Soto, spokesman for the citizen group Benicians for a Safe and Healthy Community, said in a statement following the decision, that “The unanimous vote by the Planning Commission to reject this deeply flawed environmental review is a vindication of the concerns that people in the community have had since this project was first proposed.”

        Soto said it took three years to build public pressure and that he felt the Planning Commission was “thorough and methodological in their deliberation.”

        Last month, when a three-car train carrying sulferic acid derailed in Martinez, a five minute drive from Benicia, Soto said the community dodged a bullet because the acid didn’t leak out.

        He said it represented a warning sign and reminded residents that transporting hazardous materials by railroads has its dangers.

        Soto said the commission’s message to the city council is absolutely clear – “they must reject this proposal and reevaluate how much trust they can put in their own staff and city attorney.”

        During the days of hearings that led up to the commission’s decision, city officials reminded the commission “again and again that Valero’s tax contributions make up a quarter of the general fund,” said Ethan Buckner, a campaigner with environmental non-profit ForestEthics.

        Buckener said that on Thursday night, “commissioner after commissioner ripped apart the (sic) Valero’s faulty environmental review and questioned the motives of city staff and the Benicia city attorney. Commissioners affirmed the actual charge of their commission to protect the health and welfare of the community.”

        The Sierra Club was also among the environmental groups to support the commission’s decision to stop the oil train project.

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