no one knows at this time whether the STB will have issued an advisory or declined to do so, and if so, what the STB advice will be, and
no one is sure exactly what procedures will guide Council and the public in either case!
The latest guidance from City Attorney Heather McLaughlin is complicated, a bit confusing, and perhaps inconclusive. In response to Benicia resident Marilyn Bardet’s inquiry, McLaughlin wrote on 8/30:
I am sorry but I have to give you the lawyerly “it depends” answer at this point. It will depend if we get an answer from the STB. If we don’t get an answer, the Council already closed the public comment. They would have to take action to re-open the hearing. If we do get an answer, the Council would have to open the public hearing to allow comment only on the new information from the STB. The Council discussion is a continuance from the last appeal hearing. They specifically continued the item to September 20th.
Then on 8/31, McLaughlin added:
If the STB responds in time for the meeting on the 20th, the Council would open the hearing for comments as it relates to the STB response. Public comments would have to relate to the response. I can imagine a range of public comments along the lines of the STB’s response means the EIR must be redone, or that the EIR is good enough, or that some aspect of it must be redone, or that some permit condition should be applied to address the STB response. As long as comments relate to the STB response, then the comment is ok. Comments on the EIR or permitting that do not relate to the STB response would not fit in since the hearing for general comments has already happened.
In March, as Valero presented its appeal to the City Council, the refinery’s attorney surprised everyone by asking for a delay so that it could ask the federal Surface Transportation Board (STB) for a declaratory order favoring Valero’s proposal. Valero’s petition asks the STB to clarify whether the Interstate Commerce Commission Termination Act, or ICCTA, prohibits the city from taking rail-related impacts into account while deciding on the project.
A FOURTH PLANNING COMMISSION MEETING has been called for TONIGHT, THURSDAY, FEB. 11, 6:30pm. Public comment is now closed, but it will be just as important to fill the chamber with concerned residents and regional support. Be there if you can! Arrive early to get a seat in Council Chambers.
Tonight, the first portion of the meeting will be given over to City staff and consultants. According to Community Development Director Christina Ratcliffe, City staff will begin by discussing new materials given to Commissioners last night. City Attorney Heather McLaughlin, notably absent during Commission procedings to date, was observed midway through the evening Wednesday delivering a huge stack of documents, presumably for Commissioners’ review. It stands to reason that these documents will have further comments and instructions having to do with federal “preemption.”
City staff will also take time in the opening portion of tonight’s meeting to answer questions put to staff previously during the hearings, to which staff had responded that they would need to “look into it.”
Commissioners will no doubt interact with staff with further questions and clarifications, so it is likely Commissioners will not move into their final deliberations until – anybody’s guess – an hour or two (or three or four) go by. Those deliberations and final statements are likely to take some time as well. Director Ratcliffe advised Commissioners to bring their calendars to Thursday’s meeting, in case they need to schedule yet another continuation at a “date certain.”
Christopher McKenzie, the LCC’s executive director, already has sent a letter March 6 on behalf of its board of directors to U.S. Secretary of Transportation Anthony R. Foxx, asking that his department make LCC’s recommendations part of federal policy in governing rail safety.
“The continued increase in the transport of crude oil by rail, combined with recent rail rail accidents involving oil spills and resulting fires, have served to heighten concerns about rail safety among many of our member cities,” McKenzie wrote.
Rail safety, particularly in transport of crude oil from North Dakota’s Bakken fields, has become a growing concern nationwide and elsewhere.
The California Environmental Protection Agency has been presenting a series of forums on the matter, one of which took place March 26 in Crockett, a meeting attended by several Benicia residents who oppose delivery of oil by train.
In another development this week, WesPac Midstream has dropped the crude-by-rail component of its intent to transform a Pacific Gas and Electric tank farm into a regional oil storage site.
In explaining the move Project Manager Art Diefenbach cited uncertainties about prospective changes in regulations of oil shipping by rail, a series of protests and falling crude prices that have made shipping by train less attractive. Should the project be completed, oil would arrive either by ship or pipeline, which Pittsburg Mayor Pete Longmire suggested would make the operation safer and less controversial.
In his letter, McKenzie cited incidents that prompted the LCC to express its own safety concerns and to offer recommendations that might reduce the potential for accidents.
“Specifically, two derailments accompanied by fires involving unit trains (100 or more tank cars) carrying crude oil in West Virginia and in Ontario, Canada, earlier this month have greatly increased public anxiety about what steps the relevant federal regulatory agencies are taking to improve rail safety and on what timetable,” he wrote.
He said the LCC wanted to make three points: First, that improvements that are required of participating industries should be mandates, not recommendations; second, that the mandates should have a hard deadline for implementation; and third, that the Department of Transportation should include the LCC’s recommendations in the final rule for Safe Transportation of Crude Oil and Flammable Materials.
McKenzie wrote that the LCC wants all federal agencies involved in regulating crude-by-rail shipments to require electronically controlled braking systems on trains carrying the sweeter crude from the North Dakota Bakken oil fields, and to set a sooner date for phasing out or retrofitting the older DOT-111 tanks.
More federal money should be directed toward training and equipment for first responders who are sent to hazardous materials accidents, he wrote, and how the funding is to be distributed needs to be defined. In addition, trains should have maximum speed limits in all areas.
His letter said the LCC wants the number of tank cars that trigger a California Energy Commission and State Emergency Response Commission report lowered to 20 from 33, which in turn would lower the trigger point from shipments of 1.1 million gallons or more to those of 690,000 gallons or more.
Priority routes for positive train control, a technology that incorporates geopositioning tracking to slow or halt trains automatically to reduce collisions, should be identified, McKenzie wrote, and parking and storage of tank cards need regulating, too.
He further wrote that railroads should be forced to comply with their Individual Voluntary Agreements with the US-DOT, because currently there is no requirement for them to do so. Those pacts involve reducing speed limits for oil trains that use older tank cars and travel through urban areas; determining the safest rail route; increased track inspection; adding enhanced braking systems; improving emergency response plans and training; increasing track inspections; and working with cities and communities to address their concerns about oil transport by train.
“The League of California Cities understands that this area of regulation is largely preempted by federal law,” McKenzie wrote. “That is why we are urging specific and timely action by the federal agencies charged with regulatory oversight in this area. We do not expect that derailments and accidents will cease altogether, but we anticipate that stricter safety standards will reduce their numbers over time.”
The LCC also has supplied member cities with a sample letter patterned after McKenzie’s message, to customize before sending to Foxx.
In a report to Benicia City Council, City Manager Brad Kilger wrote, “The League Executive Director has requested that cities send letters to the appropriate federal rail safety rulemaking authority requesting that these measures be implemented.”
Since the preparation of the letter template, he wrote, the LCC has learned that any decisions on improved safety regulations would be made in the Office of Management and Budget.
“The mayor is requesting that the city send a letter on behalf of the Benicia City Council,” Kilger wrote.
Consideration of the letter won’t conflict with future consideration of a request by Valero Benicia Refinery to extend Union Pacific Railroad tracks onto its property and make other modifications so it can substitute rail delivery for tanker ship delivery of crude oil, a highly contentious proposition that is currently undergoing environmental review.
“In that the city is currently processing the use permit and EIR (environmental Impact Report) for the Valero Crude-by-Rail Project, I asked the city attorney to determine whether sending a letter requesting rail safety improvements would in any way create a due process issue for the city,” Kilger wrote.
He said City Attorney Heather McLaughlin informed him there would be no conflict because the letter doesn’t take any position on the Valero project or the adequacy of the ongoing environmental review.
“The letter simply urges the adoption of more stringent federal standards for the transportation of crude by rail,” Kilger wrote.
If the Council agrees the letter should be sent to Foxx, it would be signed by Patterson as mayor, and copies would be sent to California’s two U.S. senators, Dianne Feinstein and Barbara Boxer, all members of California’s delegation in the U.S. House of Representatives, the Federal Railroad Administration, the National Transportation Safety Board, the Solano County Board of Supervisors, the Solano Transportation Authority, Kilger, McLaughlin and members of the Council.
The Council will meet at 7 p.m. Tuesday in the Council Chamber of City Hall, 250 East L St.