Category Archives: Final Draft Environmental Impact Report (FEIR)

FIRST-HAND REVIEW: Benicia Planning Commission hearings Wednesday night

By Roger Straw, February 11, 2016

Wednesday’s meeting was all public comment.  Comments were overwhelmingly in opposition to Valero’s proposal.

Comments included powerful remarks by attorney Elly Benson of the Sierra Club and two exceptional speakers from the Stanford Law School representing the Center for Biological Diversity, Claudia Antonacci and Rylee Kercher  These three echoed and reinforced comments made on Tuesday by attorney Jackie Prange  of the Natural Resources Defense Council and attorney Rachael Koss of Adams Broadwell Joseph & Cardozo (on behalf of SAFER California).  All took exception to Benicia’s contract attorney Brad Hogin, who has promoted a view of federal law that would preempt Benicia’s Planning Commission from considering mitigations for onsite or offsite impacts, and would virtually tie the City’s hands from denying Valero its use permit.

Commissioners heard in-person comments by Berkeley Vice-Mayor Linda Maio,  City of Davis planner Eric Lee, and Yolo-Solano Air District Planning and Air Monitoring Manager Matt Jones.

Other regional experts and advocates opposing the project included Ethan Buckner of ForestEthics, Greg Karras of Communities for a Better Environment, Chris Brown of Chris Brown Consulting in Sacramento, Amiee Durfee and Tamhas Griffith of Martinez Environmental Group and Janet Johnson of Sunflower Alliance and Richmond Progressive Alliance.

In addition, overwhelmingly anti-project testimony was given by 25 informed and often eloquent residents of Benicia, and at least 8 from Davis/Sacramento.  Only 6 pro-Valero speakers offered comments. 

The closing comment, nearing midnight, was spellbindingly mysterious at first.  A Benicia homeowner and businessman, Ehren Herguth, came to the mic and introduced himself.  Helguth is highly credentialed as a clinical lipid specialist (CLS) and described himself as an “advocate for energy production, oil analyst, lube specialist.” He owns an oil, gas and chemical services lab in Vallejo and has extensive experience in testing hazardous materials including various kinds of crude oil. After setting us up at length with detailed technical comments – we were holding our breath, pretty much presuming he’d be for the project – he described Valero’s proposal as “desperate” and urged the Commission to vote no! He was the last speaker.

Wow.  A climactic finish on an exhilarating night of testimony.

Under Benicia rules, the last word in public testimony was given to the proponent as rebuttal, which meant five more minutes for Valero’s Don Cuffel.  Cuffel pointed out that Valero cannot begin exporting crude oil without a new permit.  He didn’t mention that there would be nothing prohibiting Valero from applying for such a permit, nor did he promise that they wouldn’t.  And he didn’t dispute that the new facility Valero is proposing and the less frequently used marine port would serve such purposes well.

Cuffel obfuscated truth by stating that with oil train explosions and fires, firefighters don’t need to “let them burn out.”  Note Cuffel’s use of the word “out.”  Of course firefighters don’t wait until the fires are completely out – but it is indisputable that first responders have on many occasions recently waited for hours and even days before getting near enough to safely apply foam.

Cuffel continued with a repetition of claims that noxious emissions would be lower, and he defended the use of seriously deficient CPC 1232 tank cars, claiming that Valero would always stay a step ahead of federal safety requirements.  He said nothing to assure Commissioners that new stronger federal requirements would be in place anytime soon, nor that Valero would take any new steps to purchase or lease tank cars that are safer than CPC 1232s.

It must’ve been a long hard night for City staff, contract attorneys, EIR consultants, and Valero executives, all of whom suffered severe criticism for their work in analyzing the project’s potential impacts, recommending approval, and developing the proposal in the first place.

For what comes next, see YET ANOTHER Planning Commission meeting – what to expect on Thursday.


    Everything you need to know for TODAY’S Planning Commission meeting

    By Roger Straw, February 11, 2016
    [Editor:  Well, ALMOST everything.  For more details, see EVENTS.  – RS]
    A FOURTH PLANNING COMMISSION MEETING has been called for TONIGHT, THURSDAY, FEB. 11, 6:30pm.  Public comment is now closed, but it will be just as important to fill the chamber with concerned residents and regional support.  Be there if you can!  Arrive early to get a seat in Council Chambers.

    Tonight, the first portion of the meeting will be given over to City staff and consultants.  According to Community Development Director Christina Ratcliffe, City staff will begin by discussing new materials given to Commissioners last night.  City Attorney Heather McLaughlin, notably absent during Commission procedings to date, was observed midway through the evening Wednesday delivering a huge stack of documents, presumably for Commissioners’ review.  It stands to reason that these documents will have further comments and instructions having to do with federal “preemption.”

    City staff will also take time in the opening portion of tonight’s meeting to answer questions put to staff previously during the hearings, to which staff had responded that they would need to “look into it.”

    Commissioners will no doubt interact with staff with further questions and clarifications, so it is likely Commissioners will not move into their final deliberations until – anybody’s guess – an hour or two (or three or four) go by.  Those deliberations and final statements are likely to take some time as well.  Director Ratcliffe advised Commissioners to bring their calendars to Thursday’s meeting, in case they need to schedule yet another continuation at a “date certain.”


    Benicians for a Safe and Healthy Community has been waging a critical fossil-fuel expansion battle virtually alone. Now it’s crunch time! We MUST stand with them!

    On Monday and Tuesday nights, we witnessed history in the making. In an act of citizen heroism, Benicia Planning Commissioners directed pointed question after pointed question to City Staff, contract attorneys, paid consultants and Valero executives.  At critical moments, consultants couldn’t even defend their own report and some in the audience were heard to whisper “shame on you.” The hearing will continue tonight and quite possibly Thursday night.

    Valero’s control over the city of Benicia is pervasive and pernicious. This battle has national and global ramifications. We need to turn out in force to encourage the Planning Commission to vote down Valero’s dirty crude proposal.

    Sure, attending a meeting at Benicia City Hall at 6pm is inconvenient. But really, is this about us and our comfort level? We’re in a war for the soul of our community, our country and our planet.

    Are you in?

    Where: Benicia City Council Chambers | 250 East L St. Benicia
    When: Arrive by 5:00 if you want a seat in the CC Chambers.
    More info:

    Benicians For a Safe and Healthy Community is calling for a big turnout at the Monday Feb. 8 meeting of Benicia’s Planning Commission.  I join them in a sense of urgency.  See their call to action here.

    This IS a critical moment for our city.  We have signed petitions, planted our yard signs, written letters to the city and the local newspapers, shown up at previous hearings … and now it all comes down to next week.

    After yet another a final flood of letters by uprail agencies and environmental and legal experts; after we and Valero supporters jam City Hall and make our case on Monday, Tuesday and perhaps Wednesday and Thursday … our hard-working Planning Commissioners will close their massive 3-volume studies, ask some questions, make their own final comments, and vote.

    Commissioners will vote first on whether to “certify” the Final Draft Environmental Impact Report (FEIR).  This will determine whether the report is adequate under California law, the California Environmental Quality Act (CEQA).   If they decline to certify the report, Valero will have to decide whether to 1) revise the report again and go through another set of hearings, 2) drop the project, or 3) appeal the Planning Commission’s decision to the Benicia City Council.

    If on the other hand Commissioners vote to certify the report, then they will have a second vote: whether to approve or deny issuing a permit for Valero to proceed with its project.  If they vote to deny the permit, Valero will have to decide whether to start all over with a new proposal, drop the project, or appeal the decision to the City Council.  If our Commission decides to issue a permit for the project, Valero will get out the shovels and hardhats, but some among us might consider further action to stop the project, including an appeal to City Council.

    Benicians for a Safe and Healthy Community has a News & Events page with all you need to know about Monday’s Planning Commission hearing.  Please come.  Plan to attend on Monday AND Tuesday.  Your presence is powerful.BSHC

    Evite_Tell_BeniciaRSVP – Yes, I will attend the Feb. 8 Commission Hearing.  Click here.

    Sign here!

    Over 1300 have already signed the Safe Benicia petition.  Let’s hit 2000 today! Click the image above, or email us at




      Adams Broadwell attorneys on behalf of SAFER California: critical review of Valero FEIR

      By Roger Straw, February 10, 2016
      [See also the update section below for exhibits added later today.  – RS]

      On February 8, 2016, the law firm Adams Broadwell Joseph & Cardozo sent the City of Benicia of lengthy and detailed review, highly critical of the City’s Final EIR on Valero Crude By Rail(Warning – this is a 10 MB download.)

      The letter is written on behalf of “Safe Fuel and Energy Resources California (‘SAFER California’) and individuals who reside and work in the City of Benicia.”  It features individual reviews by well-known environmental experts Dr. Phyllis Fox and Dr. Petra Pless.

      The Benicia Independent has created an INDEX to the document which is lengthy and is followed by extensive supporting attachments (see text version below).

      Adams Broadwell Joseph & Cardozo – INDEX
      PDF Page # Description
      1 Adams Broadwell Joseph & Cordozo comments, cover letter
      2 I. Interest of Commenters
      3 II. The City’s responses to comments are inadequate
      5 III. The City’s application of federal preemption is overbroad & conflicts with the constitutional exercise of traditional police powers
      12 IV. The city still lacks substantial evidence to support its conclusions in the FEIR regarding the project’s significant impacts and still fails to incorporate all feasible mitigation measures necessary to reduce such impacts to a less than significant level
      36 V. The FEIR still fails to analyze all feasible alternatives
      38 VI. The FEIR fails to disclose the project’s inconsistencies with the City’s general plan
      40 VII. The FEIR fails to disclose the project’s inconsistencies with the general plans of uprail cities and counties
      43 VIII. Conclusion
      44 Attachment A: Findings for denial (Exhibit C)
      57 Attachment B: Responses to Adams Broadwell Joseph & Cordozo comments
      60 Attachment C: Dr. Phillis Fox, Comments on FEIR
      62 I. Summary & Conclusions
      65 II. Failures to analyze air quality impacts on different types of crude
      71 III. Underestimate of ROG estimates
      85 IV. Southern route not  analyzed
      97 V. Alternatives to the project
      98 VI. Mitigations not required
      106 Attachment D: Dr. Petra Pless, Review of FEIR
      107 Cover letter
      108 I. Inadequacies of project description & EIR analyses not adequately supported
      112 II. Failures to mitigate air quality impacts – construction
      119 III. Failures to mitigate air quality impacts – operations
      164 IV. The EIR’s Health Risk Assessments Are Substantially Flawed and Fail to Identify Significant Impacts
      181 V. Recommendation
      182 Attachment F-1, REVISED ASSUMPTIONS FOR Year 2014 Daily Line Haul Locomotive Criteria Pollutant Emissions -100 Railcars per Day per EIR Methodology
      185 Attachment F-2 Project characteristics, assumptions, and locomotive emissions according to Phillips 66 SMR CBR FEIR and Valero Benicia CBR FEIR
      187 Locomotive Emissions


      On Feb. 10, the City of Benicia posted extensive additional Exhibits to the SAFER California Letter of February 8, 2016.  See below, or go to the City’s page.  [#53 and #62 are broken links.  I will fix if/when I get better information.  – RS]

      Ex._1_SJVAPCD_Authority_to_Construct_Application_ Review_Bakersfield_Terminal_2012-07-25
      10. Phillips Rail Spur Project FEIR December 2015
      14. Impl_doc
      17.(2) Tec_development_doc_final_2000
      17. Impl_doc
      18. ep724-stb-data-spreadsheet
      22. (b)_4185_Field_Guide_To_Tank_Cars1-opt
      22. CH2ThresholdsTables5-2015
      26._H51A Executive Summary
      36. (1)2014_crude_by_
      36. (2)2015_crude_by_
      36. (3)2013_crude_by_
      36. (4)2012_crude_by_
      36. (5)2011_crude_by_
      36. (6)2010_crude_by_
      36. (7)2009_crude_by_
      45. Phillips Rail Spur Project FEIR December 2015
      52. __102634-west-coast-seein
      59. (1)ethylene-oxide-4pg-brochure
      59. (2)ethylene-oxide-4pg-brochure
      62. tsocorpsite.files.wor…tesoro-dot-120-fact-sheet
      66. RAR1201