Tag Archives: Marilyn Bardet

Valero Benicia Crude By Rail: No news is, well, a bit of news

By Roger Straw, September 2, 2016
[UPDATE as of Sept. 19, 2016 10AM PDT – still nothing from the STB.]
The Latest …STB logoEvery day, I check the Surface Transportation Board’s website, watching to see if they post a decision on Valero’s end run to delay the proceedings. Nothing yet. [If you go to their website, under E-Library, go to Decisions & Notices, or Filings, and search for “valero” under Case Title.]

Opponents of Valero’s dirty and dangerous proposal are trying to plan for the City Council’s September 20 meeting when Crude By Rail will again be on the agenda, but…

  1. 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
  2.  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.

Quickie Background…

Last February, after 3 years of study, public and expert comments and lengthy hearings, Benicia’s Planning Commission voted unanimously to deny Valero Crude by Rail. Valero immediately appealed the decision to Benicia’s City Council.

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.

In April on a 3-2 vote, ignoring the advice of city manager and staff, the City Council granted Valero’s request for a delay.  As part of the motion, the Council “approved continuing discussion on this item to September 20.”

After a delay of its own, Valero submitted its petition to the STB on May 31. On Jun 10 the STB granted an extension for public comments until July 8.  The STB has received multiple letters pro and con on Valero’s petition. Among the many letters is a response by the City of Benicia to Valero’s petition, in which the City asserts local land use permitting authority.

No one knows if – and when – the STB will give an opinion; and if the STB does weigh in, no one knows to what extent they will support Valero or uphold local land use permitting authority.


For complete background on the Appeal and STB, see the Benicia Independent’s APPEAL PAGE.  For public comments and City transcripts, see the Benicia Independent’s PROJECT REVIEW PAGES.  All things Valero CBR can also be found on the City of Benicia website.

 

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    Benicia Blocks Oil-By-Rail Plan

    Repost from the East Bay Express
    [Editor:  I am posting this excellent review by Jean Tepperman belatedly, with thanks for East Bay Express’ regional coverage of a Benicia story with huge regional and national implications.  I’ve not read a better review of the Feb. 8-11 Benicia Planning Commission hearings.  – RS]

    Benicia Blocks Oil-By-Rail Plan

    By Jean Tepperman, February 12, 2016
    Valero Refinery in Benicia. - WIKIMEDIA COMMONS
    Valero Refinery in Benicia. – WIKIMEDIA COMMONS

    The little town of Benicia is looking to become the next link in the chain barring crude oil from traveling by rail to the West Coast. After four evenings of contentious hearings, the Benicia Planning Commission on Thursday unanimously rejected Valero refinery’s proposal to build a rail spur that would allow it to import up to 70,000 barrels a day of “North American crude oil” — meaning extra-polluting crude from Canada’s tar sands and the highly explosive crude from North Dakota’s Bakken shale fields. Both fossil fuels have been involved in numerous derailments, explosions, and fires, including a 2013 fire and explosion in Lac Megantic, Quebec that killed 47 people.

    Starting on Monday, planning commissioners, led by Commissioner Steve Young, grilled staff members about their decision to recommend approval of the Valero project, identifying inconsistencies and pointing to problems that the project would create, from blocking traffic to increasing pollution to potential oil spills and other emergencies that the city would not be able to cope with. The central issue that emerged, however, was whether the city had the authority to make decisions about the project.

    The staff report actually said the benefits of the project did not outweigh the potential harm. Shipping crude oil by rail, the staff found, would have “significant and unavoidable” impacts on air quality, biological resources, and greenhouse gas emissions. These impacts would conflict with air quality planning goals and state goals for reducing greenhouse gas emissions. But the city can’t prevent any of this, the staff report said, because only the federal government has the authority to regulate railroads.

    Bradley Hogin, a lawyer whom the city hired on contract to advise on this project, said federal law prevents local governments from interfering with railroads, a principle referred to as “preemption.” According to the interpretation of “preemption” described by Hogin and city staff, local governments are not permitted to take actions that “have the effect of governing or managing rail transport,” even indirectly. And they are not allowed to make decisions about a project based on impacts of rail shipping connected with that project.

    “Hogin is making a case that would affect cities across the nation dealing with crude by rail,” said environmental activist Marilyn Bardet in an interview. “They were going to create a legal precedent on preemption here.”

    Bardet reported that public testimony by representatives of environmental organizations and “two young women from the Stanford-Mills Law Project made it clear that “there are many people who would disagree with Hogin’s interpretation.”

    Roger Lin, lawyer with Communities for a Better Environment, said in an email that, contrary to Hogin’s claims, the California Environmental Quality Act actually requires local governments to consider “indirect or secondary effects that are reasonably foreseeable and caused by a project, but occur at a different time or place.” Valero is not a railroad, he said, so the “preemption” doctrine does not bar the city from using its land-use power to reject the project.

    However “preemption” is interpreted, Bardet said, “the commissioners seemed uncomfortable with being told they would have to approve the project based on considerations they couldn’t accept.” Late in the hearing process, commission chair Donald Dean said, “I understand the preemption issue on a theoretical legal level, but I can’t understand this on a human level.”

    Bardet expressed appreciation for the commissioners’ concern. “My sense was that these guys are real human beings,” she said. “They all listened carefully. None of them was asleep.”

    Project opponents packed the hearing room for four straight nights, filling two overflow rooms on the first night. People came from “uprail” communities, including Davis and Sacramento, as well as allies from across the Bay Area, Bardet said.

    Opposition to the project has been led by a community group, Benicians for a Safe and Healthy Community, formed in 2013 when the city seemed ready to approve the project without requiring any environmental impact study. “We joined with other refinery communities in the Bay Area Refinery Corridor Coalition” and in a coalition working to persuade the Bay Area Air Quality Management District to pass tough new regulations on refinery pollution, Bardet said. She said support from the National Resources Defense Council and Communities for a Better Environment was also important. “The grassroots came alive together,” she said.

    Many of these organizations, like the Benicia group, are concerned, not only about the hazards of shipping crude by rail, but by the impact of refining the extra-polluting crude oil from Canada’s tar sands, Bardet said. She noted that the city’s environmental review of the project made no mention of this issue, although it is well established that refining dirty crude oil, like oil from tar sands, emits more health-harming pollution as well as more greenhouse gases.

    Valero is expected to appeal the planning commission decision to the city council, which could meet to decide on the issue as early as mid-March. “The city council is going to be hard-pressed to reject the views of their own planning commission,” Bardet said.

    She emphasized the significance of this decision for the national and international issue of shipping crude oil by rail. “The whole world is watching,” she said. “I just got a message from a guy in New Jersey congratulating us.”

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      Vallejo Times-Herald: Thompson introduces act addressing crude by rail

      Repost from The Vallejo Times-Herald
      [Editor:  See also coverage in McClatchyDC News.  – RS]

      Thompson introduces act addressing crude by rail

      By Irma Widjojo, 04/15/15, 8:06 PM PDT

      Another bill concerning the transportation of crude oil by rail was introduced Wednesday, following at least two others in the past month. With a pending Valero Refinery crude-by-rail project in the works, concerned Benicians and activists said though they acknowledge the effort in the bill, they’d like to see more.

      U.S. Rep. Mike Thompson, D-St. Helena, coauthored the Crude-By-Rail Safety Act, which would “establish new, common sense federal safety standards for railcars transporting oil across the country,” according to a release from Thompson’s office.

      The act would take on a number of factors, including maximum volatility standard for crude oil transported by rail, higher fines for violating volatility standards and hazmat transport standards. The act will also seek to remove 37,700 unsafe cars off the rail network and recommend other measures to increase the safety of crude by rail.

      “Public safety is priority No. 1 when it comes to transporting highly volatile crude oil,” Thompson said in the release.

      There have been four derailments of trains carrying crude oil in the United States and Canada in under a month earlier this year — in Illinois, West Virginia and twice in Ontario.

      Thompson said he has been working on the Crude-By-Rail Safety Act for about a year. The proposed legislation was also authored by Reps. Doris Matsui, D-Sacramento, Ron Kind, D-Wis., and Jim McDermott, D-Wash., and Nita Lowey, D-NY.

      “Folks in the district had concerns,” he said. “Explosions have people worried.”

      The bill will still have to go through its due process before it could get signed into law, and that could take some time.

      Activists said these procedures won’t come in time before another possible disaster strikes.

      Marilyn Bardet, a Benicia resident and environmental activist, said that even if the policy was put in place, it wouldn’t be done before the pending Valero’s Crude-by-Rail project is underway.

      “That is a huge concern,” Bardet said. “Valero talks about their safety record, but they are talking about the safety of the refinery. This is really the project of the railroad.”

      Benicia is currently processing the use permit and Environmental Impact Report (EIR) for the project. The Recirculated Draft EIR is anticipated to be released for public comment June 30. It will have a 45-day comment period. After the comment period closes, the city will complete the final version, which will include responses to all comments.

      Bardet said she’s glad to see an effort from congress to address the Department of Transportation and the issue, but said from her initial perusing of the act she found that there were missing components to it.

      A few of her concerns that are not mentioned in the proposed act are speed reduction, plans on dealing with explosions and derailment in remote areas and the safety of bridges.

      “There are derailments on a regular basis, and historically they have not been shipping oil in hundreds and hundreds of (train) cars across the country,” Bardet said. “They are doing this at the risk of people’s safety and the environment.”

      A spokesman for Benicians for a Safe and Healthy Community, an advocate group against the crude-by-rail project, agreed with Bardet’s sentiment.

      “In general we’re glad to see our federal representatives are paying attention to the critical issue that impact communities around the country,” Andrés Soto said.

      However, Soto is doubting the passage of the bill.

      “I think that there’s going to be a major challenge to get this legislation passed,” he said, adding that he would like to see more transparency from the refineries and railroad companies.

      Thompson said he doesn’t know if he’s going to be met with pushbacks on the proposed bill.

      “I’m trying to do what’s right, and not what’s easy,” he said.

      Soto said the only way to ensure the community’s safety before a policy is set is by having a national moratorium on the transportation of these crude oils, especially of more volatile kinds like Bakken shale oil.

      Benicia Mayor Elizabeth Patterson, an outspoken advocate of rail safety, calls the bill “a good start” and is “a comprehensive way to address rail safety.”

      Speaking in a general context of the issue, Patterson said she is glad to see that “the dots have been connected between the issue of volatility of some of the products and transportation.”

      She shared some of the few questions that the activists had, including waiting for a set of standards.

      “What’s the rush?” Patterson said. “Why not take some time out and get our house in order in terms of federal regulations, and the response to accidents?”

      She also said she would like to see funding in place for the response to accidents and training for local governments and public safety personnel.

      “The response equipment doesn’t exist in most routes,” Patterson said. “The funding needs to be there.”

      Paterson acknowledged that the bill is still in its early stages.

      “I imagine there would be a lot of comments,” she said. “It’s a good first start, I wouldn’t want to see anything less. It shows that (Thompson) has been listening to the public, and he’s responded.”

      To read the proposed act, visit mcdermott.house.gov/images/pdf/crudebyrailsafetyct.pdf.

      A similar senate bill was also introduced last month by Sens. Maria Cantwell, D-Wash., Patty Murray, D-Wash., Tammy Baldwin, D-Wisc., and Dianne Feinstein, D-Calif.

      U.S. Rep. John Garamendi, D-Solano, also authored a legislation, H.R. 1679, in March, which would prohibit the transport of crude-by-rail unless authorities have reduced the volatile gases in the oil prior to transportation.

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        Benicia Community Forum & Update, January 18, 1-4pm, Benicia Library

        ANNOUNCING . . .
        Community Forum & Update, Sunday, January 18, 1-4pm, Benicia Library

        FacebookStopCrudeByOil_cover(267)Learn more about Valero’s crude by rail project and how it might affect Benicia residents at a Community Informational Forum on Sunday, January 18, 2015, from 1:00 to 4:00 pm at the Benicia Public Library, 150 East L Street, Doña Benicia Room. The Forum is sponsored by Benicians for a Safe and Healthy Community (BSHC), a grassroots organization advocating responsible environmental action and currently working to STOP crude by rail in Benicia.

        You’ll hear from guest speakers:

        • Antonia Juhasz, oil and energy analyst, award-winning author and investigative journalist, and
        • Diane Bailey, Senior Scientist in the Health and Environment Program for the Natural Resources Defense Council.

        Members of BSHC will also provide an update on our work.

        • Marilyn Bardet will discuss the history and status of the project’s Draft Environmental Impact Report (DEIR).
        • Andrés Soto will discuss the local, regional and cumulative impacts of transporting crude oil by rail. There will be plenty of time for questions, discussion and brainstorming.

        For more information about the Community Forum or BSHC, please call (707) 742-3597, or email info@SafeBenicia.  For more information about Valero Crude by Rail check out  SafeBenicia.orgOf course, you can find lots of info here on BeniciaIndependent.org.

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