Repost from the Davis Enterprise [Editor: I know Lynne as a strong advocate against Valero’s Crude By Rail proposal. Her fair-minded coverage of both sides of the debate in this article is amazing and admirable. A good overview of the hearing on Monday. – RS]
Benicia hears oil-train concerns from Davisites
By Lynne Nittler, April 06, 2016
BENICIA — Davis was well-represented at a Benicia City Council hearing Monday for Valero Oil’s crude-by-rail project. Of the approximately 48 people who spoke, 12 came from Davis or Dixon, and another six were from Sacramento.
The speakers voiced their opposition to the oil company’s proposal to expand its refinery and accept 100 rail cars daily full of North American crude oil on a route that comes directly through downtown Davis.
The hearing continues with more public testimony tonight plus April 18 and 19 at the City Chambers in Benicia.
The evening began with a rally of those opposed to the project counter-balanced by a gathering of Valero workers and supporters of the project. A busload of 23 people from Sacramento stopped to pick up seven more in Davis, arriving just as the hearing began in the packed chambers.
Officials were allowed to speak first, beginning with Yolo County Supervisor Don Saylor, who also represented the Sacramento Area Council of Governments. He traced Yolo County’s effort over the past three years to communicate the serious safety concerns and to offer possible mitigation measures that were acknowledged but not addressed in the EIR.
He said 500,000 of the 2.4 million residents in the SACOG area — the counties of Yolo, Sacramento, Sutter, Yuba, Placer and El Dorado — live in the blast zone of the railroads, i.e., within a quarter-mile radius of the tracks. Of those, 260,000 are residents, 200,000 work in the area and 28,000 are students.
While acknowledging that Valero and its jobs are important, Saylor emphasized that this project “requires a shared commitment to protecting public safety.” He said the project should not be approved until the safety concerns are resolved.
Matt Jones of the Yolo Solano Air Quality Management District represented all seven districts that have responded jointly in writing to three versions of the environmental impact report for the Valero project. He said the EIR documents the impacts correctly, but fails to offer or respond to any mitigations, even when the Sacramento Metropolitan AQMD offered staff time to work out an off-site mitigation plan.
Jones reminded the Benicia council that San Luis Obispo County is examining a similar crude-by-rail proposal, and Phillips 66 has voluntarily offered such off-site mitigations.
Eric Lee, a city of Davis planner, made a plea for Benicia council members to uphold the decision of their Planning Commission, which voted on Feb. 11 not to certify the final environmental impact report and denied Valero’s permit.
He added that Davis believes that legally, the local jurisdictions are not pre-empted by federal rail regulations and that up-rail cities are entitled to have their comments addressed in the EIR.
He concluded by saying that the city of Benicia has a legal obligation to safeguard the public.
“I continue to be concerned about the Valero crude-by-rail project regarding the significant air quality impact,” state Sen. Lois Wolk, D-Davis, wrote in a letter to the Benicia council, read by her representative, Alex Pader. Wolk recommended specific steps, and if said they cannot be met, then the project should not move forward.
She reminded the council members that her own obligation is to protect the public from harm, which she has done with two pieces of legislation on oil-train safety, and said their obligation to safeguard the public is no less.
Marilyn Bardet, spokeswoman for Benicians for a Safe and Healthy Community, encouraged the council members to use their ethical judgment, and read all the material from the past years, plus what is pouring in now, to inform themselves at this crucial juncture in the decision-making process. She urged them to uphold the decision of the Planning Commission.
After a break, a mix of speakers pro (12) and con (16) spoke for up to five minutes each.
One Valero proponent said America has a tremendous thirst for oil; therefore, don’t we have a responsibility to produce it?
Jasmine Powell, a resident of Benicia, said Valero never risks its outstanding safety record as indicated by its high OSHA ratings.
Michael Wolfe, senior vice president of an engineering services firm, said California crude is increasingly scarce and Alaskan crude is running out as well. Valero is seeking to purchase North American oil to avoid importing more foreign oil. California already imports more foreign crude than any other state, Wolfe said.
Seven other Valero workers and supporters spoke of their trust in Valero’s high safety standards.
On the other side, Frances Burke of Davis spoke of the Planning Commission’s work as “epic,” and made an eloquent plea for the up-rail communities not to be dismissed as collateral damage.
Don Mooney , an environmental lawyer from Davis, said in his 25 years in environmental law, he had not seen a case with more uniform opposition, where so many have stood opposed for the same reasons.
Katherine Black simply read the list of officials and organizations opposing the project for five minutes, including all seven air quality management districts, all 22 cities and six counties who belong to SACOG, the California Office of Spill Prevention and Response and the California attorney general.
The Benicia City Council will hear more testimony tonight.
A Growing Risk: Oil Trains Raise Safety and Environmental Concerns
By Cory Golden, in the February 2015 issue of Western City
More and more often, trains snake down through California from its northern borders, with locomotives leading long lines of tank cars brimming with volatile crude oil.
Rail remains among the safest modes of transport, but the growing volume of crude being hauled to California refineries — coupled with televised images of fiery oil train accidents elsewhere — have ratcheted up the safety and environmental concerns of city officials and the residents they serve.
Local and state lawmakers have found that their hands are largely tied by federal laws and court rulings pre-empting new state and local regulation of rail traffic.
Growing Volume and an Increasing Number of Accidents
Until recently, California’s refineries were served almost entirely through ports. An oil boom in North Dakota and Canada from the Bakken shale formation and a lack of pipeline infrastructure have led to a dramatic increase in oil-by-rail shipments nationwide.
Oil imports to California by rail shot up 506 percent to 6.3 million barrels in 2013 (one barrel equals 42 gallons). That number will climb to 150 million barrels by 2016, according to the California Energy Commission.
The surge represents an “unanticipated, unacceptable risk posed to California,” said Paul King, deputy director for the California Public Utilities Commission’s Office of Oil Rail Safety, during a Senate hearing last year.
As the volume of oil being transported by rail has swelled, derailments in the United States and Canada have also increased. Despite $5 billion in industry spending on infrastructure and safety measures — with half of that for maintenance — railroads spilled more crude in the United States during 2013 than in the previous four decades combined, according to an analysis of federal data by McClatchy DC News.
Railroads continue to boast a better than 99 percent safety record, and most spills have been small, but with each tank car holding more than 25,000 gallons of oil, the exceptions — including eight mishaps in 2013 and early 2014 — have been dramatic and devastating, none more so than an accident in July 2013. That’s when 63 cars from a runaway train exploded, leveling much of Lac-Mégantic, Quebec, and killing 47 people.
So far, California has been spared a major crude oil accident, but the number of spills here is climbing: from 98 in 2010 to 182 in 2013, according to the California Office of Emergency Services (OES).
Trains carrying Bakken crude travel south through Northern California, turning from the western slope of the Sierra Nevada and rumbling through the hearts of cities large and small. The trains pass within blocks of the state Capitol, hospitals and schools and through sensitive ecological areas such as the Feather River Canyon and Suisun Marsh.
Lethal Accidents Spur a Push for Increased Safety Measures
The Lac-Mégantic accident and others that have followed have led to a push for change at the federal level. Two agencies of the U.S. Department of Transportation (DOT), the Federal Railroad Administration and Pipeline and Hazardous Materials Safety Administration, shoulder responsibility for writing and enforcing railroad safety regulations.
In early 2014, the DOT and railroad industry announced a series of voluntary steps to increase safety. The DOT released a comprehensive rule-making proposal in July 2014, calling for structurally stronger tank cars, new operating requirements, speed restrictions, enhanced braking controls and route risk assessments, and a classification and testing program for mined gases and liquids.
The DOT proposal calls for phasing out within two years older model tank cars, called DOT-111s, long known to be vulnerable to rupturing in a crash. The National Transportation Safety Board, which investigates accidents, first urged replacing or retrofitting them in 1991.
In September 2014, the American Petroleum Institute and Association of American Railroads jointly asked the DOT for more time — up to seven years to retrofit tank cars.
Another safety measure, called positive train control (PTC), makes use of global positioning systems. It is intended to prevent collisions, derailments due to high speeds and other movements that could cause accidents, like a train using track where maintenance is under way. PTC can alert train crews to danger and even stop a train remotely.
Following a 2008 Metrolink crash in Los Angeles that killed 25 people — caused when an engineer missed a stop signal and collided with a Union Pacific freight train — Congress mandated PTC implementation on 60,000 miles of track nationwide. Large railroads have spent $4.5 billion to implement the technology, but the industry says it cannot meet its 2015 deadline.
Among the members of California’s congressional delegation demanding stricter regulations are Senators Dianne Feinstein and Barbara Boxer, who have called for more information to be released to first responders on train movements.
Sen. Feinstein also wrote a letter that urged the DOT to include pneumatic brakes, which can greatly reduce stopping distances, in its planned review of tank car design, and to extend the PTC requirement to any route used by trains carrying flammable liquids near population centers or sensitive habitat.
Meanwhile, Industry Continues to Grow
The growth in domestic crude oil is reflected in projects that include seven proposed, completed or under-construction expansions that together would have a maximum oil-by-rail capacity of 561,000 barrels per day at Bakersfield, Benicia, Pittsburg, Santa Maria, Stockton and Desert Hot Springs (see “Increasing Refinery Capacity” below).
As of December 2014, the Kinder Morgan Inc. facility in Richmond was the only refinery that could receive unit trains, which are trains with 100 or more tank cars carrying a single commodity and bound for the same destination.
InterState Oil Co. had its permit to offload crude at McClellan Park, in Sacramento County, revoked in November 2014 by the Sacramento Metropolitan Air Quality Management District. The district said it had issued the permit in error and that it required a full review under the California Environmental Quality Act.
Refineries in Bakersfield, Vernon, Carson and Long Beach were receiving crude deliveries from manifest trains, which carry a mix of cargo.
Safety Efforts Focus on Planning, Preparedness and Response
The Federal Rail Safety Act of 1970 authorized the U.S. secretary of transportation to create uniform national safety regulations. States are allowed to adopt additional, compatible rules if they do not hinder interstate commerce and address a local safety hazard. Courts have consistently ruled against almost all attempts by states to use the local safety hazard exception, however.
Thus, unable to regulate train movements, California lawmakers and agencies have pursued three main courses of action: planning, preparedness and response.
In the Golden State, the California Public Utilities Commission (CPUC) shares authority with the federal government to enforce federal safety requirements, and OES and local agencies lead emergency response. In 2014, Gov. Jerry Brown expanded the Department of Fish and Wildlife’s Office of Spill Prevention and Response to include inland areas.
The Legislature approved a Senate Joint Resolution, SJR 27 (Padilla), urging the DOT to safeguard communities and habitat, strengthen the tank car fleet, mandate the earlier voluntary safety agreement with railroads and prioritize safety over cost effectiveness.
Recent legislation includes AB 380 (Dickinson, Chapter 533, Statutes of 2014), which calls for increased spill-response planning for state and local agencies and requires carriers to submit commodity flow data to OES, and SB 1064 (Hill, Chapter 557, Statutes of 2014), which seeks to improve accountability and transparency regarding CPUC’s responses to federal safety recommendations.
The FY 2014–15 state budget also allocated $10 million to the CPUC, which planned to add seven more track inspectors, and authorized the state oil spill prevention fund to be used for spills in inland areas. In addition, the budget expanded the 6.5 cent per-barrel fee to include all crude oil entering the state.
The 10 state agencies that have some hand in rail safety and accident response have formed the Interagency Rail Safety Working Group. It issued a report last June that called for, among other things, older tank cars to be removed from service, stronger cars, improved braking, PTC and better markings on cars so that firefighters know how to proceed in an accident.
Speaking to Richmond residents in December 2014, Gordon Schremp, senior fuels specialist for the California Energy Commission, welcomed the moves to increase safety at the federal level. All indications were that railroads were complying with new measures like lower speed limits, he said.
“Does it mean there will be zero derailments? No, but the goal is to get there,” said Schremp.
Local government officials face a daunting challenge when it comes to disaster response.
The Interagency Rail Safety Working Group also found that, as of June 2014, there were no hazardous materials response teams in rural areas of Northern California and units in other areas of the state lacked the training and equipment needed to take a lead role. Forty percent of the state’s firefighters are volunteers.
“Training is of the utmost importance,” said Deputy Chief Thomas Campbell, who oversees the Cal OES Hazardous Materials Programs. “We understand that local governments are limited in finances and that it’s difficult to get firefighters out of rural communities to train because they are volunteers.”
Some Local Communities Oppose Expansion
At the local level the proposed expansion of California refineries sometimes has run into heated opposition.
After news reports revealed that Bakken crude was being transported into the City of Richmond, City Manager Bill Lindsay wrote a letter to the Bay Area Air Quality Management District in November 2014 calling for it to revoke energy company Kinder Morgan’s permit to offload the crude there. That followed a lawsuit filed by environmental groups to revoke the permit — a suit tossed out by the judge because it was filed too late.
Elsewhere, a proposal by Valero Energy Corp. would bring 1.4 million gallons of crude daily to its Benicia refinery. The proposal has been met with letters questioning the city’s environmental and safety analysis from senders that have included the CPUC, Office of Spill Prevention and Response, the Sacramento Area Council of Governments, the Capitol Corridor Joint Powers Authority and cities along the rail line, including Davis and Sacramento. The Union Pacific Railroad has responded by stressing federal pre-emption of rail traffic.
Even as those proposals played out, a pair of derailments in Northern California underscored the importance of the debate. While neither spill involved crude oil or hazardous materials, both served as a warning of the need for California to improve its emergency response capability. Eleven cars carrying freight derailed and spilled into the Feather River Canyon near Belden on Nov. 25, 2014. Three days later, one car tumbled off the tracks near Richmond. The cars were loaded with corn in the first instance and refrigerated pork in the second.
The League continues to closely monitor developments in oil by rail. In September 2014 the League made recommendations to the DOT on the federal rule-making governing rail safety. The recommendations included providing more information and training to first responders, mandating speed limits and stronger tank cars, and using all available data to assess the risks and consequences of crude oil transport. Two months later, the National League of Cities passed a resolution stressing many of the same safety measures.
League of California Cities staff conducted a series of webinars during fall 2014 to better acquaint members with the oil-by-rail issue, and its Public Safety and Transportation policy committees took up the subject in January 2015 meetings.
Increasing Refinery Capacity
The California Energy Commission is tracking the following projects, which would dramatically increase the oil-by-rail capacity of refineries:
Plains All American Pipeline LP in Bakersfield, which took its first delivery in November 2014, has a capacity of 65,000 barrels per day (bpd);
Alon USA Energy Inc. in Bakersfield, under construction, will be able to receive 150,000 bpd;
Valero Energy Corp. in Benicia, which is presently undergoing permit review, would have a 70,000 bpd capacity;
WesPac Energy-Pittsburg LLC in Pittsburg, undergoing permit review, could receive up 50,000 bpd by rail and 192,000 bpd through its marine terminal; and
Phillips 66 in Santa Maria, undergoing permit review, could accept 41,000 bpd.
In addition, Targa Resources Corp. at the Port of Stockton is planning an expansion that would enable it to receive 65,000 bpd. And Questar Gas Corp. is planning a project that could see it offload 120,000 bpd near Desert Hot Springs, then send it through a repurposed 96-mile pipeline to Los Angeles.
Photo credits: Ksb/Shutterstock.com; Steven Frame/Shutterstock.com.
Railroads say California lacks authority to impose safety rules on oil shipments
By Tony Bizjak and Curtis Tate, Oct. 8, 2014
The battle over crude oil trains in California intensified this week, reaching into the legal sphere with potential national repercussions.
The state’s two major railroad companies, Union Pacific and the BNSF Railway, went to federal court Tuesday to argue that neither California nor any other state can legally impose safety requirements on them because the federal government already does that.
The lawsuit came days after California Attorney General Kamala Harris joined other officials in challenging one crude-by-rail project, in the Bay Area city of Benicia. In a letter to Benicia officials, Harris said the city has failed to adequately analyze the potential environmental consequences of Valero Refining Company’s plan to ship two 50-car oil trains daily through Northern California to its Benicia refinery.
Those shipments would run through downtown Sacramento and other Valley cities.
The Valero project and similar plans by other oil companies prompted the state Legislature this summer to pass a law ordering railroad companies to submit an oil spill prevention and response plan to the state, and to provide proof to the state that they have enough money to cover oil-spill damages.
Railroads fired back this week, filing a lawsuit in the U.S. District Court in Sacramento. Their argument: Federal law pre-empts the state from imposing safety restrictions on the railroads.
The suit was filed by the two largest railroads in the Western United States, Union Pacific and BNSF Railway Co. The industry’s leading trade group, the Association of American Railroads, is listed as co-plaintiff.
The fight involves a long-standing friction point between railroads and U.S. states and cities. Railroads contend that local governments cannot place requirements or restrictions on freight travel because federal laws cover that ground.
The railroads have used the federal pre-emption argument to stop states from trying to impose speed limits on trains and ban certain types of shipments. In one notable case, railroads got the courts to overturn a Washington, D.C., law that attempted to ban trains carrying hazardous materials from using tracks within 2 miles of the U.S. Capitol.
“Federal law exempts this entire regime,” the railroads declared in the California lawsuit. Citing “a sweeping set of intricate federal statutes and regulations,” the lawsuit argues that allowing states to impose a “patchwork” of requirements on railroads essentially interferes with interstate commerce.
In a separate email statement Wednesday, BNSF spokeswoman Lena Kent said, “The state gives the industry no choice but to challenge the enforcement of the new law so as to not inhibit the efficiencies and effectiveness of the freight rail industry and the flow of commerce.”
Officials at the state Office of Spill Prevention and Response, the state agency listed as the defendant in the case, declined comment Wednesday, saying the agency does not publicly discuss pending litigation. Harris’ office is listed as a co-defendant.
The U.S. Department of Transportation in July proposed a rule that would require railroads to have oil spill response plans for trains carrying large volumes of crude oil. But that proposal could be months away from becoming law.
National transportation law and safety experts say the onus may be on California to prove that it is not usurping federal law or impeding interstate commerce.
“The state has to prove it is tackling what is a local or statewide issue, that it is not incompatible (with federal law) and doesn’t unreasonably burden interstate commerce,” said Brigham McCown, an attorney and former head of the federal Pipeline and Hazardous Materials Safety Administration. “That is a high bar.”
California might have an opening in a 2007 law Congress passed after the 9/11 Commission issued its recommendations. The 9/11 Act required rail companies to develop security plans and share them with state and local officials. The requirement was not limited to planning for a terrorist attack, but for any rail disaster, including derailments and spills involving hazardous materials.
“Those plans are required to be done and required to be shared,” said Denise Rucker Krepp, the former senior counsel on the House Homeland Security Committee, who wrote the provisions.
The Transportation Security Administration has not enforced the requirement, Krepp said, partly because of its focus on aviation security. But now that the railroads have taken California to court, Krepp said the state could use the 9/11 Act as leverage to get what it tried to get from the railroads through legislation.
“It’s never been tested like this,” Krepp said of the federal law.
It was unclear Wednesday whether the railroads also are challenging the section of the California law that imposes a 6.5-cent fee on oil companies for every barrel of crude that arrives in California on rail, or that is piped to refineries from inside the state. The resulting funds, estimated at $11 million in the first full year, will be allocated for oil spill prevention and preparation work, and for emergency cleanup costs. The efforts will be focused on spills that threaten waterways, and will allow officials to conduct response drills.
Crude-oil rail shipments have risen dramatically in the last few years. Those transports, many carrying an unusually flammable crude from North Dakota, have been involved in several spectacular explosions, including one that killed 47 residents of a Canadian town last year. Federal officials and cities along rail lines have been pushing for safety improvements. California officials have joined those efforts, saying they are concerned by estimates that six or more 100-car oil trains will soon be rolling through the state daily on the way to coastal refineries.
Harris, the state’s top law enforcement official, sent a letter to Benicia city planners challenging that city’s conclusion in an environmental impact report that the Valero rail shipment plan poses an insignificant threat of derailment. The report, she writes, “underestimates the probability of an accidental release from the project by considering only a fraction of the rail miles traveled when calculating the risk of a derailment.”
“These issues must be addressed and corrected before the City Council of Benicia takes action” on the project, Harris wrote.
Harris’ letter repeats earlier criticism leveled by the state Office of Spill Prevention and Response and state Public Utilities Commission.
The letter is one of hundreds Benicia has received in the past few months in response to the city’s initial environmental study. Benicia interim Community Development Director Dan Marks said the city and its consultants would review the comments and prepare responses to all of them, then bring those responses to the city Planning Commission for discussion at an as-yet undetermined date.
Under the Valero proposal, trains would carry about 1.4 million gallons of crude oil daily to the Benicia refinery from U.S. and possibly Canadian oil fields, where it would be turned into gasoline and diesel fuel. Valero officials have said they hope to win approval from the city of Benicia to build a crude-oil transfer station at the refinery by early next year, allowing them to replace more costly marine oil shipments with cheaper oil.
A representative for the attorney general declined comment when asked if Harris would consider suing Benicia to force more study of the project.
“We believe the letter speaks for itself,” spokesman Nicholas Pacilio said. “We expect it will be taken seriously.
Railroads sue California over oil train safety rules
Union Pacific, BNSF Railway argue federal law pre-empts state regulations
By Tony Burchyns, October 9, 2014
California’s two major railroad companies filed a lawsuit this week to argue that the state lacks authority to impose its own safety requirements on federally regulated crude oil train traffic.
The lawsuit follows a new state law imposing regulations on the transportation of crude oil by rail in California. Union Pacific and BNSF Railway filed the case Tuesday in U.S. District Court in Sacramento to argue that federal law pre-empts California and other states from enforcing such regulatory regimes.
“The new state law requires railroads to take a broad range of steps to prevent and respond to oil spills, on top of their myriad federal obligations concerning precisely the same subject matter,” the railroads argue. “UP, BNSF and other members of (the American Association of Railroads) will be barred from operating within California unless a California regulator approves oil spill prevention and response plans that they will have to create, pursuant to a panoply of California-specific requirements.”
The railroads also will be required to obtain a “certificate of financial responsibility” from the state, indicating they are able to cover damages resulting from an oil spill. Failure to comply with the new state rules will expose railroad employees to jail time and fines, according to the lawsuit.
The California Office of Spill Prevention and Response, which was named as a defendant in the lawsuit, has declined to comment on the pending litigation.
The state law was passed in June following a sharp rise in crude-by-rail shipments in California from 2012 to 2013 and several high-profile oil train derailments in other states as well as Canada. In the Bay Area, crude-by-rail projects in Benicia, Richmond, Pittsburg, Martinez and Stockton have drawn local attention to the prospect of mile-long oil trains snaking through neighborhoods, mountain passes and sensitive habitats such as the Suisun Marsh.
Last week, California Attorney General Kamala Harris sent a letter to Benicia challenging plans to ship 70,000 barrels of crude daily by train to the city’s Valero refinery. Valero is seeking city approval to build a rail terminal to receive two 50-car oil trains daily from Roseville. The train shipments would originate in North Dakota or possibly Canada.
Harris, the state’s top law enforcement officer, criticized the city for underestimating the project’s safety and environmental risks. The letter was among hundreds received by the city in response to its initial environmental impact report. City officials say they are in the process of responding to all of the comments, and plan to do so before the project’s next, yet-to-be-scheduled public hearing is held.