Tag Archives: Federal pre-emption

SAN FRANCISCO CHRONICLE: Benicia’s rejection of oil trains could reverberate across country

Repost from the San Francisco Chronicle

Benicia’s rejection of oil trains could reverberate across country

By Kurtis Alexander, 9/21/16 5:11pm
The Valero refinery is seen in the background behind signage for a railroad crossing on Wednesday, October 22, 2014 in Benicia, Calif. Photo: Lea Suzuki, The Chronicle
The Valero refinery is seen in the background behind signage for a railroad crossing on Wednesday, October 22, 2014 in Benicia, Calif. Photo: Lea Suzuki, The Chronicle

Benicia’s rejection of plans to bring trains filled with crude oil to Valero Corp.’s big refinery in the city was hailed Wednesday by critics of the country’s expanding oil-by-rail operations, who hope the flexing of local power will reverberate across the Bay Area and the nation.

Of particular interest to environmentalists and local opponents, who for years have argued that Valero’s proposal brought the danger of a catastrophic spill or fire, was a last-minute decision by U.S. officials that Benicia’s elected leaders — not the federal government — had the final say in the matter.

Word of that decision arrived just before the City Council, in a unanimous vote late Tuesday, dismissed Valero’s proposal for a new $70 million rail depot along the Carquinez Strait off Interstate 680. Valero had said the project would not only be safe but bring local jobs, tax revenue and lower gas prices.

“We’re pleased with the decision and the implications it will have across the country,” said Jackie Prange, a staff attorney for the Natural Resources Defense Council, one of several groups opposed to the project. “This issue is live in a number of sites across the country. This is definitely a decision that I think cities in other states will be looking to.”

As oil production has boomed across North America, so has the need to send crude via railroad. The uptick in tanker trains, though, has been accompanied by a spate of accidents in recent years, including a 2013 derailment in the Quebec town of Lac-Megantic in which a 72-car train exploded and killed more than 40 people.

The authority of communities to limit oil trains has been clouded by the assertion of some in the petroleum industry that local officials don’t have jurisdiction to get in the way. Companies like Valero have contended that railroad issues are matter of interstate commerce — and hence are the purview of the federal government.

Shortly before Tuesday’s meeting, however, Benicia officials received a letter from the U.S. Surface Transportation Board, which wrote that Valero, based in Texas, was not a railroad company and that the proposed rail terminal fell under city jurisdiction.

“It’s what I was waiting for to help me make my vote more defensible,” said Councilman Alan Schwartzman at the meeting.

Earlier this year, Valero had asked the Surface Transportation Board for “preemption” protection for the project after Benicia’s Planning Commission rejected the proposal. The plan proceeded to the City Council upon appeal.

The plan called for oil deliveries from up to two 50-car trains a day, many passing through several Northern California communities en route from the Bakken shale formation in North Dakota. Those trains would carry as many as 70,000 barrels of oil.

The company billed the project as a way to keep gasoline prices low in the absence of a major oil pipeline serving the West Coast. Crude is currently brought to the Bay Area mostly by boat or through smaller pipelines.

On Wednesday, Valero officials expressed frustration at the city’s decision.

“After nearly four years of review and analysis by independent experts and the city, we are disappointed that the City Council members have chosen to reject the crude by rail project,” spokeswoman Lillian Riojas wrote in an email. “At this time we are considering our options moving forward.”

The vote directly hit the city’s pocketbook. Nearly 25 percent of Benicia’s budget comes from taxes on the oil giant, and the city coffers stood to grow with more crude. The refinery employs about 500 people, according to city records.

But the city’s environmental study showed that oil trains presented a hazard. The document concluded that an accident was possible on the nearly 70 miles of track between Roseville (Placer County) and the refinery, though the likelihood was only one event every 111 years.

The document also suggested that much of the crude coming to the Bay Area from North Dakota, as well as from tar sands in Canada, was more flammable than most.

Several cities in the Bay Area and Sacramento area joined environmental groups in calling for rejection of the project.

“The council’s vote is a tremendous victory for the community and communities all throughout California,” said Ethan Buckner of the opposition group Stand, who was among more than 100 people who turned out for the council’s verdict. “At a time when oil consumption in California is going down, projects like this are unnecessary.”

At least two other plans are in the works for oil delivery by rail elsewhere in the region — in Richmond and Pittsburg. A handful of other proposals have been put forth in other parts of California, including the expansion of a rail spur at a Phillips 66 refinery in San Luis Obispo County, which is scheduled to be heard by the county planning board Thursday.

Prange, with the Natural Resources Defense Council, said this week’s finding by the Surface Transportation Board gives cities the confidence to reject the proposed oil trains, if they wish to do so.

“It reaffirms the power of local government to protect their citizens from these dangerous projects,” she said.

U.S. oil deliveries by rail have grown quickly, from 20 million barrels in 2010 to 323 million in 2015, according to government estimates. In response, federal transportation officials have worked to improve the safety of oil-carrying cars with new regulations.

But over the past year, rail deliveries nationwide have slowed, in part because of the stricter rules as well as local opposition, falling crude prices and new pipelines.

Critics have complained that the tightened rules have fallen short, pointing to incidents like a June train derailment in Mosier, Ore., which spilled hundreds of thousands of gallons of crude into the Columbia River. Leaders in Oregon are discussing a statewide ban on crude trains.

Kurtis Alexander is a San Francisco Chronicle staff writer.
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    SACRAMENTO BEE – critical review of Benicia Valero RDEIR

    Repost from the Sacramento Bee

    Sacramento oil spills would be risky but rare, new report says

    By Tony Bizjak, August 31, 2015

    HIGHLIGHTS
    • Valero Refining Co. wants to send two 50-car oil trains daily through central Sacramento
    • A report says project presents risks to humans and the environment, but says spills are rare
    • Sacramento and NorCal leaders have called for more safety steps to reduce the spill and fire risks

    A train travels near the Feather River Canyon in the foothills into the Sacramento Valley.
    A train travels near the Feather River Canyon in the foothills into the Sacramento Valley. Jake Miille Special to The Bee/Jake Miille

    Benicia city officials have concluded a proposal to transport large amounts of crude oil daily on trains through Sacramento and Northern California would create a “potentially significant” hazard to the public, but say a spill is probably only a once every few decades occurrence.

    In a revised environmental impact report issued Monday, officials in the Bay Area city contend spill risks are unavoidable and there is nothing that the city or the Valero Refining Co. can do to mitigate them, given that the federal government controls how rail shipments are handled. The report makes a point of saying that federal and state governments have taken recent steps to make crude oil rail transports safer.

    Valero, which operates a major oil refinery in Benicia, is asking for city approval to ship two 50-car crude oil trains daily from north American fields through California to the Bay Area, replacing marine oil shipments.

    Oil train shipments have come under the spotlight nationally after a handful of crashes that caused spectacular explosions and fires. One crash two years ago resulted in the deaths of 47 people in a Canadian town; others have forced evacuations and spilled oil into waterways.

    Benicia officials conducted the latest analysis after critics, including Sacramento regional leaders, complained earlier risk assessments were inadequate. They have called on Benicia and Valero to take more safety steps.

    Cities on the rail line include Roseville, Sacramento, West Sacramento, Davis, Dixon, Vacaville, Fairfield and Suisun City. The oil train route through rural Northern California remains uncertain. Trains could enter the state from Oregon and pass through the Dunsmuir area, or through the Feather River Canyon, or via Donner Summit.

    Benicia’s initial environmental report, published last year, had said spill damage hazards are “less than significant.” The new report is based on a deeper analysis of an expanded geographic area.

    The Benicia report cites federal data showing that less than 1 percent of train accidents cause releases of hazardous materials. But it also notes that trains to Benicia would have to travel through mountainous areas that have higher derailment rates. It projects that an oil spill of more than 100 gallons – described in the report as a small spill – might be expected to happen once every 20 to 27 years. A larger spill of 30,000 gallons is listed as a once-every-38-to-80-years event, but could cause injuries and deaths.

    The release of the new report sets in place a 45-day public comment period. Benicia officials said they will respond to those comments, then set a Planning Commission review and vote on the project. The date for that hearing has not been set.

    Valero officials, who have complained that Benicia’s vetting process has gone on too long, said in a brief email statement Monday that they are looking forward to participating in the Planning Commission discussion of their project. Officials with the Sacramento Area Council of Governments, the regional entity that has been monitoring the project, could not be reached for comment Monday.

    A copy of the report can be found under “Revised Draft EIR” on the city of Benicia’s website.

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      Maryland judge orders railroads to release oil train reports

      Repost from McClatchyDC

      Maryland judge orders release of oil train reports

      HIGHLIGHTS
      • Case marks first time railroads have lost on the issue in court
      • Judge not persuaded that release would harm security, business
      • Companies that filed 2014 lawsuit have until Sept. 4 to appeal

      By Curtis Tate, August 17, 2015
      Tank cars loaded with crude oil head east at Hurricane, W. Va., in May 2014. A Maryland judge has ordered the release of oil train reports to McClatchy and other news organizations. West Virginia and a handful of other states agreed to keep the the reports confidential.
      Tank cars loaded with crude oil head east at Hurricane, W. Va., in May 2014. A Maryland judge has ordered the release of oil train reports to McClatchy and other news organizations. West Virginia and a handful of other states agreed to keep the reports confidential. Curtis Tate – McClatchy

      WASHINGTON – A Maryland judge rejected two rail carriers’ arguments that oil train reports should be withheld from the public, ordering them released to McClatchy and other news organizations that sought them.

      The ruling isn’t the first time railroads have lost their bid to keep the oil train reports secret, but it is the first court decision recognizing the public’s right to see them.

      The U.S. Department of Transportation began requiring in May 2014 that railroads inform states of large shipments of crude oil after a series of derailments with spills, fires, explosions and evacuations. Since February, six more major oil train derailments have occurred in North America.

      Nonetheless, some railroads have continued to press their case that the reports should be exempt from disclosure under state open records laws. Most states shared the documents anyway, and Pennsylvania and Texas did so after McClatchy appealed. Maryland is the only state that was taken to court after it said it would release the reports.

      Norfolk Southern and CSX sued the Maryland Department of the Environment in July 2014 to stop the state agency from releasing the records to McClatchy and the Associated Press. They have until Sept. 4 to appeal the decision, issued Friday by Judge Lawrence Fletcher-Hill of the Circuit Court for Baltimore City.

      Both companies, which transport crude oil to East Coast refineries concentrated in Delaware, Pennsylvania and New Jersey, said they would review the decision.

      Dave Pidgeon, a spokesman for Norfolk Southern, said the company would “respond at the appropriate time and venue.”

      Melanie Cost, a spokeswoman for CSX, said the railroad “remains committed to safely moving these and all other shipments on its network.”

      The ruling isn’t the first time railroads have lost their bid to keep the oil train reports secret, but it is the first court decision recognizing the public’s right to access them.

      In his 20-page opinion, Fletcher-Hill was not persuaded by arguments that releasing the oil train reports would harm the railroads’ security and business interests. He also dismissed the relevance of the U.S. Department of Transportation’s May final rule addressing the safety of oil trains. The companies had argued that the final rule supported their claims.

      He also ordered the companies to pay any open court costs.

      In a statement, Maryland Secretary of the Environment Ben Grumbles said the agency was pleased with the ruling and that it is “committed to transparency in government.”

      Rail transportation of Bakken crude oil, produced through hydraulic fracturing of shale formations in North Dakota, has grown exponentially in the past five years. However, a series of fiery derailments, including one in Quebec in 2013 that killed 47 people, have raised numerous concerns about public safety, environmental protection and emergency planning and response.

      U.S. Transportation Secretary Anthony Foxx issued an emergency order on May 7, 2014, that required any railroad shipping 1 million gallons or more of Bakken crude oil through a state to inform that state’s emergency response commission what routes the trains would take and which counties they would cross, as well as provide a reasonable estimate of how many trains to expect in a week.

      Beginning in June 2014, McClatchy submitted open records requests in 30 states for the oil train reports, including Maryland.

      McClatchy was able to glean some of the details in the Maryland report through a Freedom of Information Act request to Amtrak, which owns part of Norfolk Southern’s oil train route in the state. The subsequent release of oil train reports in Pennsylvania revealed more about such operations in Maryland.

      On Monday, Pennsylvania Gov. Tom Wolf released an 84-page assessment of oil train safety in the state, which examined derailment risk, tank car failures and regulatory oversight. Some Maryland lawmakers have called for the state to perform a similar assessment.

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        Growing oil train traffic is shrouded in secrecy

        Repost from The Center for Investigative Reporting and KUOW.org
        [Editor:  This is an important report.  State regulators can’t get accurate oil train data from the federally regulated railroads, so Washington officials are turning to the refineries: “Washington state lawmakers passed a law recently that requires oil refineries, which are state regulated, to give weekly notice of the train schedule to first responders.”  (See previous report.)  The story of Dean Smith’s Train Watch is inspiring – we should set up annual counts in all of our frontline refinery communities.  – RS]

        Growing oil train traffic is shrouded in secrecy

        By Ashley Ahearn / June 13, 2015
        Dean Smith was frustrated with the lack of public information about oil train traffic so he organized 30 volunteers to count the trains coming through his community north of Seattle. Credit: Ashley Ahearn/EarthFix/KUOW

        EVERETT, Wash. – Dean Smith, 72, sits in his car by the train tracks here north of Seattle.

        It’s a dark, rainy Tuesday night, and Smith waits for an oil train to come through town. These trains are distinctive: A mile long, they haul 100 or so black, pill-shaped cars that each carry 30,000 gallons of crude oil.

        Smith has been counting the trains for about a year, noting each one on a website he built. The former National Security Agency employee does it because the railroads share little information about oil train traffic with Washington state. They don’t have to because they’re federally regulated.

        What is known: The railroads are moving 40 times more oil now than in 2008 due to an oil boom in the Bakken formation of North Dakota. Bakken crude oil contains high concentrations of volatile gas, with a flashpoint as low as 74 degrees Fahrenheit.

        Derailments and explosions have occurred around North America since the oil boom began, including a 2013 catastrophe that killed 47 people in rural Quebec.

        This has prompted emergency responders to call for more information from railroad companies about oil train traffic patterns and volumes. The railroads mostly have refused; they say that releasing that information could put them at a competitive disadvantage.

        Which is why Smith decided to find out for himself. “It’s pretty hard to hide an oil train,” he said with a chuckle.

        Last year, Smith launched the first Snohomish County Train Watch. He organized 30 volunteers to take shifts counting trains around the clock for a week.

        In their first week of watching oil trains, the group collected more information about oil train traffic than the railroads had given Washington in the three years the trains have come here.

        State officials say Smith’s data is helpful but insufficient. They say they shouldn’t have to rely on citizen volunteers to get critical information in case of disaster.

        Dave Byers, the head of spill response for the state’s Department of Ecology, said his team needs the information to plan area-specific response plans to protect the public and keep oil from getting into the environment.

        “It gives us an idea of what the risk is, the routes that are taken,” Byers said. “The frequency and volume of oil really gives us an idea of what level of preparedness we need to be ready for in Washington state.”

        Oil train traffic shows no signs of slowing, which adds to the state’s sense of urgency. The oil industry wants to build five new terminals in Washington to move crude oil off trains and onto ships.

        Meanwhile, Congress is considering legislation to lift a federal ban on exporting crude oil that’s been in place since 1975 – allowing American crude to be shipped around the world.

        Close call in Seattle

        Anyone who has attended a Mariners baseball game in downtown Seattle likely has seen or heard oil trains passing the ballpark. The trains continue north through the city to refineries on Puget Sound.

        Seattle had a close call last year when an oil train derailed near downtown.

        Byers and his team weren’t notified for one and a half hours and initially were not told there was oil in the derailed train cars.

        No oil was spilled, but Byers is critical of how BNSF Railway, the company that moves most of the oil out of the Bakken oil fields, handled the situation.

        BNSF did not tell the state there was highly flammable Bakken crude oil in the derailed train cars – that information came five hours later from the oil refinery waiting for the train. Additionally, Byers said that when his team arrived on the scene, no BNSF representative was present, but welders were working on the derailed cars. The welders said they did not know what was inside.

        We became concerned because people were wandering off the street and taking selfies of themselves next to the rail cars,” Byers said. “There was no preparing for the potential that one of those cars could actually start leaking.”

        BNSF spokeswoman Courtney Wallace said in an emailed statement that BNSF Railway had its hazardous materials team quickly in place to evaluate the situation. “This derailment did not cause a release at any point, nor was there a threat of a release,” she said.

        The state and BNSF Railway have sparred over the railroad company’s reports of hazardous materials spills. Earlier this year, state regulators released an investigation and recommended that BNSF be fined up to $700,000 for not quickly reporting these spills. The company has disputed the state’s findings. A final decision is expected next year.

        Concern in Anacortes

        Workers prepare oil trains for unloading at the Tesoro refinery north of Seattle. The train that derailed in Seattle on July 24, 2014, was bound for the refinery.

        This spring, several hundred people packed into the Anacortes City Hall for information from oil companies and BNSF Railway about the oil trains moving through their community. Just that morning, a BNSF oil train had derailed and caught fire in North Dakota.

        In northern Puget Sound, Anacortes is home to two refineries that receive oil by rail from North Dakota. Its residents, like others in small communities along the tracks in Washington state, have voiced concern about oil trains. Congestion woes are among their complaints; unlike Seattle, where the trains mostly pass through tunnels and over bridges, trains here disrupt traffic.

        Audience members were allowed to submit written questions only. Oil refineries’ representatives told them about safety precautions at their facilities to prevent and respond to spills. They also talked about their commitment to getting newer oil train cars.

        Courtney Wallace is a spokeswoman for BNSF Railway. The company believes that every derailment or accident is avoidable. On the day this photo was taken, a train had derailed and caught fire in North Dakota. It was carrying the same type of crude oil that is currently moving through Washington state.

        Wallace, the BNSF spokeswoman, gave a presentation about the company’s commitment to safety. She said BNSF believes that every accident is preventable.

        When pressed by a reporter about how much information BNSF shares with local emergency responders, Wallace said BNSF has “always provided information to first responders, emergency managers about what historically has moved through their towns.”

        She cautioned that sharing regular updates or notifications of oil train movements could put the public at risk.

        “We’re always cognizant of what information is shared, because we don’t want to see an incident that involves terrorism or anyone else who might have that kind of frame of mind,” Wallace said.

        Fight for information

        A federal emergency order demands that railroads share limited information with states – but state officials want more.

        Washington state lawmakers passed a law recently that requires oil refineries, which are state regulated, to give weekly notice of the train schedule to first responders. 

        Washington state Rep. Jessyn Farrell is a Democrat who has fought for legislation that would force oil refineries to share information about how much oil is arriving by rail.

        State Rep. Jessyn Farrell, a Seattle Democrat who sponsored the bill, said BNSF and the oil industry opposed the legislation from the beginning.

        “We’re going to get the information,” she said. “I don’t really care who gives it to us as long as it’s good information and it stands in court, because we need that information now.”

        BNSF Railway spent more than $300,000 on lobbyists and political contributions in Washington state in 2014.

        “I think they’re absolutely on the wrong side of this,” Farrell said. “In the public mind, and morally, they are absolutely wrong.”

        BNSF’s Wallace said the company still is reviewing the law to see how federal regulatory authority will interact with state authority.

        Back in Everett, Dean Smith said he isn’t waiting for politicians or lawyers to duke this one out.

        Instead, he’ll wait for trains, he said, and he’ll continue gathering information about them.

        Four hours into a recent train-watching shift, Smith perked up.

        “There’s something coming,” he said. He opened the door of his Chevy Volt and stepped into the rain. An orange BNSF engine emerged from the tunnel. Behind it were oil cars – about 100 of them, black as night.

        The streetlight reflected off Smith’s glasses and shadows gathered in the furrow of his brow as he stood by the tracks, shoulders hunched.

        “Sometimes I wonder, why fight it? Why not just move? That’d be the easiest thing to do,” he said. “But I think we have to fight. And I would like to see citizens groups acting like this all over the country. That’s the form of checks and balances we can create. All it takes is a few people.”

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