Tag Archives: Don Dean

MARILYN BARDET: Valero delay tactic – unnecessary interference in local politics

Guest Editorial by Marilyn Bardet, March 16, 2016

Valero delay tactic – unnecessary interference in local politics

Marilyn Bardet
Marilyn Bardet

Last night, March 15th, the first hearing of the Benicia City Council was held on Valero’s appeal of the unanimous vote of the planning commission to deny certification of the final EIR and the proposed Crude By Rail Project, a permit for which would allow construction of a rail terminal on Valero property that would serve to off-load two 50-car trains each day loaded with domestic shale oil and/or Canadian tar sands.

After the staff gave its usual synopsis of Valero’s proposal, the planning commission’s chair, Don Dean, gave an excellent overview of the commission’s work over three years of public review, summarizing the arduous process, first begun in 2013, when the public and commissioners questioned City staff’s recommendation to adopt a grossly flawed Initial Study /Mitigated Negative Declaration. The commission’s inquiry continued following the drafting of a full EIR in 2014, that was then followed by review of a Revised EIR in 2015 — all of which entailed long hours of public hearings and study of volumes of written comment letters from Benicia residents and comments and testimony provided by public agencies, environmental organizations and government representatives. (See beniciaindependent.com/project-review/ for links to the public record.)

After Don Dean’s presentation, it was Valero’s turn to present their appeal. In all previous testimony, and in their official letter of appeal, which had been submitted to the City in the wake of the final planning commission hearing in February, Valero has asserted that under federal preemption, requirements of the California Environmental Quality Act (CEQA) would be superseded, hence that any impact evaluations or determinations regarding mitigations directly or indirectly involving rail would be considered irrelevant and unenforceable. In their appeal letter, Valero went so far as to describe the commission’s decisions for denial as representing an “abuse of discretionary powers”, insisting that commissioners had virtually ignored the full authority of federal preemption.

Thus, it was to be expected that Valero’s Don Cuffel would repeat “the Valero basics” about why the Project would be safe and economically beneficial, while pointing to what Valero considers the various errors of “the opposition”, including those representing opposing legal views presented in the course of public hearings.

But the twist came when attorney John Flynn took the podium and surprised the council, city staff and the public by announcing that Valero was now recommending “a delay” in the appeal process they’d initiated, to allow time for them to petition the federal Surface Transportation Board (STB) for the agency’s perspective on the scope of federal preemption law governing rail operations. They admitted the delay could take at least three months.

Under the dubious premise that delaying their appeal would benefit everybody, Valero argued that getting an opinion from the STB would “help” the City make the correct decision with regard to the limits of their jurisdictional authority imposed by preemption.

But what kind of ‘benefit’ would delaying the appeal process really represent, given that Valero claims that preemption essentially neuters our city council’s authority and obligation under CEQA to protect the health and safety of residents, and thus to uphold most important goals and policies of the Benicia General Plan?

Council members Mark Hughes, Christina Strawbridge, Alan Schwartzman and Tom Campbell, and Mayor Patterson, each questioned why Valero had not petitioned the STB previously, when either the Draft EIR or Revised EIR were being developed. Valero didn’t seem to have an answer.

But “politics” are in the air, and Valero Energy Corp, headquartered in San Antonio TX, is now gambling politically, apparently seeking to produce what could be considered a “pre-trial” test of their own legal opinion on preemption right at the time of our local elections. Interference in local politics in order to push permitting of their dangerous Crude By Rail Project is not acceptable and must be challenged!

Make no mistake: Valero hopes to bank on setting a precedent, right here in Benicia, that would affect municipalities of every size and stripe across California and the US seeking to protect their communities from the risks of dangerous oil trains plowing through their urban cores and rural landscapes.

Valero’s “recommendation for delay” is a bald political tactic:
• Delay is NOT necessary for the City Council to reach an informed decision on the Crude-By-Rail Project;
• Delay does NOT serve City staff or the public;
• Delay ONLY serves the financial and broad political interests of Valero Energy Corporation.

Please come to the April 4th council hearing to voice your concern:
• To support the authority and requirements of CEQA — for the public’s right to full disclosure of impacts, for enforceable mitigations and feasible project alternatives;
• To support our planning commission’s consensus judgment resulting in a unanimous vote to deny certification of the Final EIR and deny the project permit;
• To support the authority of our City to protect our community’s health and safety and uphold the Benicia General Plan;
• To deny Valero’s appeal and audacious corporate attempt to interfere in local politics for their own gain.

— Marilyn Bardet, Benicia

Benicia Planning Commission & public weigh in on Valero CBR

The Benicia Planning Commission completed the third of its public hearing sessions on Valero’s Crude By Rail proposal last night, and closed the hearing at a decent hour, around 10:15pm.  Thanks to everyone who attended and contributed!

In an unusual move, the Commission chose to hear from Commissioners first, then the public.  City staff refused to allow commissioners to engage the EIR consultant or staff in questions and answers.  Commissioners’ comments and questions were to be added without response into the public record, just as any member of the speaking public.

(Editor: My review of Commissioner comments appears first.  See farther below for a summary of select citizen comments.)

Those in attendance opposing Valero’s proposal were highly encouraged by the quality and quantity of comments pointing out the many inadequacies and omissions of the Draft EIR.  Every Commissioner asked serious questions, as did members of the public.

The first to speak was Commissioner Steve Young, who read from prepared notes.  The Benicia Independent obtained a copy of Mr. Young’s 14-page written comments, downloadable here.  Young asked 35 penetrating questions covering in detail:

    • Environmental Impacts of Transporting Bakken Shale or Tar Sands oil
    • Possible Increase in amount of oil refined and associated increases in emissions
    • Lack of Disclosure of Documentation for Greenhouse Gas (GHG ) Calculations
    • GHG Emissions in Bay Area vs. GHG Emissions in Benicia
    • Calculation of GHG emissions for trains
    • Air Quality Impacts
    • Cumulative Impacts
    • Traffic Impacts
    • Impact on FAST Transit
    • Emergency Preparedness
    • Emergency Planning and difficulty in fighting oil fires of Bakken Crude
    • Financial responsibility of cleanup
    • Explosiveness of Bakken Crude
    • Rail Cars, Tracks and Positive Train Controls
    • Rail Cars – Positive Train Controls
    • Likelihood of Oil Spill

With apologies for any errors or misunderstandings to the other Commissioners, I will try to summarize their spoken concerns.

Commissioner Belinda Smith was openly disappointed that she was not allowed to engage the consultant and staff in questions and answers.  She raised questions about

    • the adequacy of the site description
    • the condition of roads on the site
    • groundwater runoff
    • numbers of trains that would share the rails
    • timing of train crossings
    • train deliveries during “turnarounds”
    • numbers of trains carrying other hazardous materials
    • the “no-project alternative”
    • tank car design from North Dakota to Roseville
    • noise impacts on birds and other businesses in the Industrial Park
    • bird count review after impact and mitigations if they don’t return
    • Indirect emissions: definition of “immediate” and “other” vicinities
    • rainwater protection from contamination, runoff and containment
    • Benicia firefighter training for emergencies
    • Lack of detailed analysis of cumulative impacts

Commissioner Suzanne Sprague agreed with many of Young’s and Smith’s comments and questions, adding only that, as an attorney, she had concerns about the DEIR’s omission of analysis of case law regarding outlying communities and federal preemption.

Commissioner Cohen-Grossman raised four issues:

    • What impact will the project have on the new bus hub on in the Industrial Park?
    • Why would the DEIR even mention a possible impact and then not discuss it because of federal preemption?  (Example: the alternate project analyses)
    • Traffic: Benicia’s General Plan calls for level of service D, but the DEIR only uses outlying roads in its analysis.
    • Huge increase in volume of hazardous materials shipments will require emergency readiness.  Sept. 29 Solano County meeting.

Commissioner George Oakes offered comments on financial issues:

    • Financial responsibility – who owns the crude at every step, from its source in the upper midwest to Valero?
    • Who indemnifies the product along the rail lines?
    • Who in the City is indemnified?
    • How much insurance does each person handling the crude (from offloading laborers to executives) need?
    • The railroad in the Lac-Megantic disaster had only $25 million insurance and went bankrupt quickly.  The people are paying.  How to guard against this here?

Commission Chair Don Dean listed several concerns:

    • Regarding cumulative impacts of hazardous materials in the event of accidents: the DEIR (§ 5-17) analyzes two accidents at the same time but doesn’t make sense.  Cumulative impacts are additive  not multiplicative.
    • How can we understand impacts or cumulative impacts without knowing the nature of the material being shipped?  Information in the document is not sufficient even in light of preemption.
    • Biological resources (§ 5-1) has more information in this section about hazardous materials than in the HM section…

Ten citizen comments critical of the DEIR and Valero’s proposal raised significant questions for the project consultant.  The Commission heard from Adela Fernandez, Charles Davidson, Greg Karras (Communities for a Better Environment), Dr. Jim Stevenson, Shiela Clyatt, David Jenkins, Paul Reeve, Shoshana Wechsler (Sunflower Alliance), Donna Wapner (public health educator) and Linda Lewis (local realtor).  Especially significant comments included the following:

Greg Karras, for 30 years Senior Scientist for Communities for a Better Environment:

    • The proposed offloading racks would be located too close to onsite refinery hazards, for instance, only 50′ from a large storage tank, 100′ from another.  Multiple tank fires would be a possibility.  It is highly unusual these days to see a project proposed with such onsite refinery hazards.
    • False assumption that ONLY marine emissions will be offset by local train emissions.  Offsets not real.  Significant local impacts AND global climate impacts.
    • California pipeline crude will also be replaced by North American crude.  This is a tar sands project with huge impacts, ignored by DEIR.
    • Hidden information on the mix of crude sources.

Dr. Jim Stevenson spoke on the nature of risk.  Risk has to be understood both quantitatively and qualitatively.  The DEIR discusses cumulative risk in quantitative terms but does not analyze the potential for catastrophic (qualitative) impacts, involving chemical releases and massive explosions.

Shiela Clyatt spoke about the economic impacts, including the possibility of businesses leaving the Industrial Park due to traffic congestion issues and safety concerns.  Other economic impacts would include a general drop in property values as Benicia takes on a riskier image for home buyers.

David Jenkins, a business owner in the Industrial Park, spoke very personally about the impact Valero’s proposal would have on his business.  He outlined concerns including possible storage of tank cars while not offloading; traffic congestion; lack of control over Union Pacific (including the distinct possibility of MORE than two trains per day; massive spills and explosions.  He also called for signed warranties by Valero and UP guaranteeing financial coverage of all damages in the event of accidents.

Shoshana Wechsler gave the most inspiring speech of the night, raising significant and detailed technical questions about the DEIR while setting Valero’s proposal and Benicia’s decision-making into a wider global context.  Read it here.

Donna Wapner offered comments from her perspective as a public health educator (Health Science professor at Diablo College).  She highlighted the DEIR’s lack of mention of potential earthquake impacts, and pointed to the massive and lingering economic impacts following Three-Mile Island and Love Canal, mentioning that there are STILL 1000 lawsuits in play today over the Love Canal toxic waste dump disaster.

Linda Lewis, a Benicia realtor, agreed with the comments expressed earlier by Dr. Jim Stevenson, and simply asked, “Can you guarantee I will be safe?  And my community?”