The first letter in this document is significant: it comes from the mayor of the City of Oroville, CA, which is located near the Feather River Canyon and at the head of the California State Water Project. The letter concludes with
The Oroville City Council and the citizens of the City of Oroville ask Valero to reconsider their proposal to deliver North American crude oil by railcar “uprail” from the Nevada border and down through Roseville to the Benicia refinery due to the potential devastation of California wildlife, water resources, and air quality.
The remaining 12 letters are CREDO Action letters from individuals all over California, also opposing Valero CBR. (These 12 can be added to the previous 2,062 similar letters sent by CREDO supporters.) I don’t have an exact count, but there were also a LOT of letters generated by the Center for Biological Diversity and by ForestEthics. We aren’t alone here in Benicia!
Repost from McClatchyDC News [Editor: Despite the curious analogy to foie gras, this is a SERIOUS discussion of Federal pre-emption and California’s attempt to regulate crude by rail. Apologies for the auto-play video. – RS]
Are California foie gras, oil train court cases on parallel tracks?
By Curtis Tate, January 15, 2015
WASHINGTON — Perhaps the only imaginable connection between trains and foie gras, the famous French delicacy obtained by force-feeding duck or geese to fatten up their livers, would be as an appetizer in the dining car of the luxury Orient Express.
Ah. Pas vrai.
A California court recently overturned the state law against selling foie gras because poultry regulation is a federal concern. And that’s just what the railroad industry is arguing about a state law enacted last year requiring it to develop oil spill response plans.
The law came about as an expected increase in crude oil transported to California by rail raised concerns about public safety and emergency response.
Like the restaurants that serve foie gras and the industry that supplies it, railroads have decided they won’t be forced to swallow a state law that they think is pre-empted by a federal one.
In the foie gras case, a producer and a restaurant that served it argued that California’s attempt to choke off sales ran afoul of the federal Poultry Products Inspection Act. Last week, a U.S. district judge agreed, citing the Supremacy Clause of the Constitution, which gives Congress the ability to displace state laws.
Similarly, the Association of American Railroads, the rail industry’s principal advocacy organization, and two of California’s major railroads, Union Pacific and BNSF, argue that the Federal Rail Safety Act derails the state’s oil spill response requirements.
According to some attorneys who know the issue well, California’s law is heading to the end of the line.
“I don’t think the court will struggle with this,” said Kevin Sheys, a Washington attorney who advises railroads but has no involvement in the California case. “The law will be struck down.”
Environmental groups, however, argue that other federal laws apply to the railroads. Patti Goldman, a Seattle-based attorney with Earthjustice, an environmental group, said the Clean Water Act and the Oil Pollution Act, the latter passed in response to the Exxon Valdez oil tanker disaster, gave states the power to enact stricter oil spill response requirements than federal ones.
That’s in contrast to the Federal Rail Safety Act, which doesn’t allow states much room to exceed what’s required at the federal level. A court decision that weighs more heavily on the rail safety act would favor the railroads. A reliance on federal water pollution laws would favor the state.
“The structures for pre-emption in there are almost polar opposite,” Goldman said. “The federal government sets a minimum standard, and the states can go further. All of that is a structure that is meant to preserve state authority.”
Sometimes pre-emption works in California’s favor. Opponents of the state’s $68 billion high-speed rail system tried to slow down the project by arguing that it was subject to the California Environmental Quality Act and required extensive impact reviews.
But in a 2-1 ruling last month, the federal Surface Transportation Board said the project was exempt from the state law. Last week, state and federal officials, including Gov. Jerry Brown, broke ground on the project in Fresno.
As a more practical matter, railroads have largely prevailed in pre-emption cases because courts have been sympathetic to the notion that a patchwork of 50 different state laws could unreasonably burden interstate commerce.
In a notable case in Washington, D.C., a decade ago, a federal court struck down a local law that prohibited the shipment of hazardous materials by rail within two miles of the Capitol. A busy CSX freight line runs only blocks away, and the law would have forced lengthy and expensive detours of hazardous cargo.
But a massive increase in the transportation of crude oil by rail in recent years, and with it an increase in high-profile accidents, has exposed gaps in safety and emergency preparedness. California is bracing for a big increase in crude by rail, and last year the legislature extended the state’s oil spill response requirements to cover inland waterways.
That, naturally, affected railroads, which historically followed rivers because of the level terrain for heavy trains, including California’s Feather and Sacramento rivers.
The Association of American Railroads declined to comment on the California case, but spokesman Ed Greenberg noted that railroads “have extensive emergency plans in place, which include procedures in working with local first responders” and have “stepped-up emergency response capability planning and training.”
David Beltran, a spokesman for California Attorney General Kamala Harris, who’s defending the law, wouldn’t comment on the case beyond what’s in court filings.
State Sen. Jerry Hill, a San Mateo Democrat, said the attorney general’s office had assured him that the law wouldn’t be pre-empted when it came before his committee last year.
“We feel comfortable based on the legal opinions we have,” Hill said.
He thinks it’s premature to predict that the law will be invalidated. But Hill said that he and others who supported it should be prepared for that outcome.
“Everyone would regroup and try to find a way to meet the goals that we’re trying to achieve,” he said.
Harris, who’s said she’ll run next year for the U.S. Senate seat of retiring Democrat Barbara Boxer, also defended the foie gras ban. She tried to have that suit dismissed by arguing that she had no present intent on enforcing the law while reserving the right to do so.
That prompted a quip from Judge Stephen Wilson in his 15-page ruling striking it down: “Defendant seeks to have her paté and eat it, too.”
Harris made a similar argument in the rail case.
“I think it’s going to be decided the same way,” said Mike Mills, an oil and gas attorney in Sacramento. “I don’t see a different outcome.”
Mills said the California case might put a federal solution on a faster track.
The U.S. Department of Transportation issued an Advance Notice of Proposed Rulemaking in August for a new regulation that would require railroads hauling crude oil to have comprehensive oil spill response plans. The rule would apply uniformly across all states, and it would achieve what California tried to do on its own.
“Oftentimes, litigation will produce a decision that forms the basis for new legislation,” Mills said. “Potentially, it could happen.”
Concerned about safety, California to inspect railroad bridges for first time
By Tony Bizjak, Oct. 6, 2014
For more than a century, California has relied on assurances from railroad companies that thousands of rail bridges across the state, from spindly trestles in remote canyons to iron workhorses in urban areas, are safe and well-maintained to handle heavy freight traffic.
That era of trust is over. Concerned about the growing number of trains traversing the state filled with crude oil and other hazardous materials, the California Public Utilities Commission is launching its first railroad bridge inspection program this fall. Federal officials say it will be the first state-run review of privately owned rail bridges in the country.
The goal, the PUC says, is to end what a recent report called the “dearth of information on the structural integrity of California’s railroad bridges.” Almost all train bridges in the state are owned and maintained by private railroads. Federal rules require railroads to inspect those bridges annually.
One of those private bridges, the 103-year-old I Street Bridge in downtown Sacramento, sits in the heart of a heavily populated area, straddles an important public waterway, and also carries thousands of cars daily. Another, the dramatic Clear Creek Trestle in the Feather River Canyon, carries trains through remote, rugged terrain where the risk of derailment is relatively high. Both bridges are expected to be conduits for increased hazardous material shipments.
“I don’t mean to criticize the railroads’ programs, but for the public to have the confidence that bridges are in good shape, our role is to offer oversight,” said PUC Rail Safety Deputy Director Paul King. “Given the heightened risk of one of these crude oil trains derailing and given the projections of a significant increase in tonnage across these bridges, we need to fulfill this role.”
It will be a limited program, however. The PUC, which is responsible for assuring safe rail systems in California, is hiring two bridge inspectors this fall for the massive task of verifying the integrity of an estimated 5,000 bridges statewide. Those inspectors are expected to conduct visual inspections at bridges and to audit railroad companies’ inspection and maintenance programs.
They are among seven new rail safety division inspectors being hired from funds allocated this summer by Gov. Jerry Brown’s administration and state legislators. The funding is a direct result of growing fears at the state Capitol and in cities along the rail lines about the potential for derailments and explosions as more crude oil trains begin rolling through the state. A crude oil train explosion last year in Canada killed 47 people.
The other new hires will be used to bolster existing utilities commission teams of track, equipment and train inspectors. Track and rail car inspections are one of the few regulatory functions states are allowed in dealing with railroads, working in conjunction with the Federal Railroad Administration, which maintains regulatory control over rail operations nationally.
The launch of a bridge inspection program comes amid ongoing criticism of the PUC after a catastrophic 2010 gas line explosion in San Bruno in which eight people were killed and 38 homes destroyed. Critics say the PUC wasn’t adequately overseeing Pacific Gas and Electric Co.’s pipeline maintenance and inspection efforts. The National Transportation Safety Board cited “CPUC’s failure to detect the inadequacies of PG&E’s pipeline integrity management program.”
Mindy Spatt of The Utility Reform Network, a consumer advocacy group and PUC watchdog, said she is not familiar with the rail bridge inspection program, but that the commission needs to be proactive and independent to protect the public.
“We would hope one thing the PUC has learned is its job is not to trust utility companies, but to oversee them,” Spatt said. “When the PUC doesn’t do its job, there can be really disastrous results.”
Bridge failures are rare, safety officials say, but consequences are potentially huge. The largest chemical spill in California history, in Dunsmuir in 1991, involved a train derailment on the curving Cantara Loop bridge that poisoned more than 40 miles of the Sacramento River. The bridge structure did not fail, but it has since undergone major modifications to reduce chances of another derailment.
The PUC bridge inspection program faces a notable upfront challenge. The commission does not yet have a comprehensive list of railroad bridges in the state, and may struggle to come up with one that includes detailed design specifications and load capacities on all bridges. PUC officials are negotiating with Union Pacific and BNSF railroads to gain access to their in-house bridge inventories.
To help fill out its inventory, the PUC said it may resort to Google searches, including tapping an amateur bridge fan website, www.bridgehunter.com.
The two bridge inspectors likely will work as a team. PUC officials calculate that the two of them can view two bridges a day, two days a week. The other three days will be for travel and report writing. “At a rate of 98 bridges per year, it would take approximately 50 years to complete inspections,” the PUC said in a report last month on its bridge review plans.
Those numbers are “intimidating,” but the job is not as improbable as it seems, King said. The PUC inspectors, like federal bridge inspectors, will serve largely in a safety review role, making sure the railroad companies are doing their jobs. Although they will visit bridges and look them over, they will not have the time or equipment to conduct full, detailed inspections.
“This is an oversight situation,” King said. “We are looking at the railroads’ inspection program, trying to verify it. Our inspectors’ role is to do spot checks. We may find that we need more inspectors. It is hard to tell at this point. We are plowing new ground.”
For their part, Union Pacific and BNSF, the state’s two major railroads, say they spend substantial time and money making sure bridges are in good shape. Union Pacific said it has six full-time, two-person crews supported by more than 50 bridge maintenance employees in California.
“Safety is just as important to Union Pacific as it is to anyone,” the railroad said in an email. “Our hope is that the CPUC continues to recognize and support this important element of our safe and efficient freight transportation efforts.”
BNSF officials say they inspect their 1,100 railway bridges in California two or three times a year, more than required by the Federal Railroad Administration, as well as after major events such as earthquakes and storms.
“BNSF is committed to ensuring that we operate on a safe and reliable rail network and therefore invests millions of operating and capital dollars annually into routine and major rehabilitation, repair, and upgrading of railway bridges and structures in California,” BNSF spokeswoman Lena Kent said in an email.
The PUC plans to come up with a priority list by year’s end of 30 key bridges for initial visits next year. This list will include bridges that have the highest probability of failure based on age, materials, design, traffic and other risk factors, such as proximity to an earthquake fault. The PUC will merge that list with an analysis of which bridges have the highest potential for negative outcomes if they fail. Those may include bridges used frequently by trains carrying hazardous materials, as well as bridges near schools, hospitals and population centers.
The calculation also will include bridges that cross sensitive waterways, such as the Feather, American and Sacramento rivers that carry drinking water for Northern California.
PUC officials say they hope to have inspectors looking at the first 10 to 15 bridges in the first half of 2015. The rest in the priority group would be inspected by the end of 2015.
A Federal Railroad Administration official said his agency welcomes California’s decision to inspect bridges.
“California already has the largest involvement in our safety program and we welcome the addition of more state assistance,” said spokesman Michael Booth. “It’s what we call a force multiplier.”