Category Archives: Local land use authority

VALLEJO TIMES-HERALD: Valero’s crude-by-rail project turned down in Benicia

Repost from the Vallejo Times-Herald

Valero’s crude-by-rail project turned down in Benicia

By Matthew Adkins, 09/20/16, 9:54 PM PDT
Anti-Valero supporters wave sunflowers as Benicia’s crude by rail project was denied Tuesday evening by council members in Benicia City Hall.
Anti-Valero supporters wave sunflowers as Benicia’s crude by rail project was denied Tuesday evening by council members in Benicia City Hall. Matthew Adkins — Times-Herald

BENICIA >> Environmentalists hoping to defeat Benicia’s crude-by-rail project scored a huge victory Tuesday night, handing Valero Refining Company a significant defeat in the process.

In a unanimous decision from Mayor Elizabeth Patterson and Benicia City Council, Valero’s application for a conditional use permit for a crude oil off-loading facility was denied.

Vicki Dennis, who moved to Benicia two years ago, was one of many present at City Hall and said she was “just delighted” with the decision.

“I’m so proud of this city,” Dennis said. “Our council people are very thoughtful. This process has been a long one, but I think they handled it in a wonderful way.”

The City of Benicia’s Planning Commission first began considering the issue in December 2012 when the refinery submitted an application seeking permission to build infrastructure to bring two 50-car trains a day carrying up to 70,000 barrels of North American crude oil into Benicia.

In March, the Planning Commission voted unanimously to deny the application and to not certify an accompanying environmental impact report. The decision was made against the recommendation of city staff who said the project’s involvement with rail-related issues made the decision a federal issue.

Valero representatives submitted an appeal looking to reverse the commission’s decision to deny their application, and the matter was postponed until Sept. 20.

As part of the appeal, Valero sought a declaratory order from the Surface Transportation Board on the issue of federal preemption in regards to the project.

During this time, many governmental agencies, private organizations and individuals publicly opposed the city council’s decision to transfer authority on the matter to the federal government.

At the city council meeting Tuesday, however, public comment on the topic was officially closed.

“We are eager to hear from you about any item that is not on the agenda,” Patterson said. “I know it’s a little difficult right now. We have an item on the agenda that I know a lot of you are interested in, but there is no public comment on that tonight.”

This drew a few hushed laughs from the crowd of approximately 150 people who had shown up to witness the landmark decision at Benicia City Hall.

Mayor Patterson’s warning didn’t stop a few concerned citizens from indirectly talking about the issue.

“I originally put in my request to speak before I knew you were not accepting public comments about Valero,” said one man. “If the council decides to change their mind and re-open public comment on the issue, I would be glad to come back up and speak.”

“Since I can’t talk about what the Surface Transportation Board has just done, I would urge the council to support the struggle against the Dakota Access pipeline,” said another man.

After public comment was closed, a brief recap of the project’s journey though Benicia’s civic system was put forth along with two resolution findings, one for approval and the other for denial,

The denial resolution highlighted specific issues that city council members had with Valero’s proposed project, including the unclear traffic impacts of having an unregulated shipment schedule, spill risks associated with shipping by rail and the project’s uncomfortable proximity to the city’s waterways.

Before making a judgement, Council members took turns voicing their concerns about health, safety and the project’s effect on the environment.

“When we first started considering this, there seemed to be little risk involved,” said Councilwoman Christina Strawbridge. “After four years, the community has endured numerous public hearings with hundreds of people speaking about the project. During this time, there have been 13 derailments around the country involving multiple carriers.

“The derailment in Oregon was a game-changer for me,” she continued. “Union Pacific was the same carrier and the railroad cars involved were the same ones Valero is offering. The strongest car didn’t withstand a puncture and crude oil came in contact with fire and burned for 13 hours. Union Pacific failed to maintain its track, resulting in its derailment. The railroad industry has not kept up with safety standards regarding the transportation of crude. I’m going to vote to deny the project in hopes that the community can begin to heal after such a divided process.”

After the council’s comments, Councilmember Tom Campbell put forward a motion to deny, and was seconded by Patterson.

A quick vote was taken and the motion to deny Valero’s presence in Benicia was decided.

Misao Brown, a retired teacher and environmental activist from Alameda, was thrilled with the council’s decision and was seen embracing her friends outside of Benicia City Hall.

“If there were any spills where we are in Benicia, it would be in the Bay and go all over the place,” she said. “Benicia is concerned about the greater good and it’s just wonderful. It was really hard sticking it out for so long, but they gave every chance to Valero. In the end, we’re really talking about life on earth. So, when the decision comes through like this under tremendous pressure, I’m really grateful to every member of the planning commission and city council.”

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BREAKING: BENICIA CITY COUNCIL DENIES VALERO CRUDE BY RAIL!

By Roger Straw, September 21, 2016

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We did it! Opponents of Valero’s oil train proposal gathered in City Hall on the night of Benicia’s historic vote to STOP crude by rail. September 20, 2016. Photo by Emily Jovais

Surprise unanimous vote – no to oil trains

Valero’s dirty and dangerous proposal to bring in Bakken and Tar Sands crude oil on trains from North Dakota and Canada is dead.

Opponents of the proposal worried and wondered for months whether a 3rd swing vote could be found on Benicia’s 5-member City Council.  On Tuesday night, the wondering came to a sudden fairy tale conclusion: a unanimous vote to deny the land use permit and stop the project dead in its “tracks.”

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Benicia City Council, September 20, 2016. Photo by Constance Beutel.

Benicia’s City Council vote follows a February unanimous vote of its Planning Commission vote to deny the project.  Valero appealed the February decision to the Council, then received a six month delay to request backing from the federal Department of Transportation’s Surface Transportation Board (STB).

On Tuesday night, following a motion to deny by Council member Tom Campbell and seconded by Mayor Elizabeth Patterson, Council members Christina Strawbridge, Alan Schwartzman and Mark Hughes all expressed mounting concerns about on-site health, safety and environmental concerns.  City staff was directed to revise it’s resolution to deny the project, and to return for a final vote on October 4. [NOTE: A revised version of the resolution was presented at yesterday’s Council meeting, taking into account yesterday’s STB decision.  The revised version is not yet available in digital format on the City’s website.]

Which brings us to the OTHER SURPRISING, BREAKING NEWS:

Earlier on Tuesday, the Surface Transportation Board issued a statement denying Valero’s petition for a declaratory order. On  May 31, Valero submitted a petition asking the STB to rule that the Benicia Planning Commission’s unanimous February 11 decision denying Valero’s oil train proposal is preempted by federal law. Yesterday, the STB denied Valero’s petition for declaratory order.

“The Board finds here that there is no preemption because the Planning Commission’s decision does not attempt to regulate transportation by a “rail carrier.” The Board’s jurisdiction extends to rail-related activities that take place at transloading (or, as here, off-loading) facilities if the activities are performed by a rail carrier, the rail carrier holds out its own service through a third party that acts as the rail carrier’s agent, or the rail carrier exerts control over the third party’s operations.8 The record presented to the Board in this case, however, does not demonstrate that Valero is a rail carrier or that it is performing transportation-related activities on behalf of UP or any other rail carrier at its off-loading facility.”

Citing arguably similar case law, the STB repeatedly points out that Valero is not a “rail carrier” and that Valero would not be “performing offloading under the auspices of a rail carrier.”

Further, the STB rules that “Valero has not demonstrated that the Planning Commission’s decisions unreasonably interfere with UP’s common carrier operations.”  Under federal law, “accordingly, this situation…does not reflect undue interference with ‘transportation by rail carriers’ within the Board’s jurisdiction.”

The STB ruling also provided guidance on the issue of preemption as it applies to any mitigations and conditions of approval that directly impact rail operations.  The ruling strongly restated federal preemptory powers on any mitigation measures or conditions of approval that would “regulate Union Pacific’s rail operations on its lines.”  But it went on to say, “State and local regulation is permissible where it does not unreasonably interfere with rail transportation….Localities retain their reserved police powers to protect the public health and safety so long as their actions do not discriminate against rail carriers or unreasonably burden interstate commerce. For example, local electrical, plumbing, and fire codes are generally applicable.”

The STB’s guidance continues, “State and local action, however, must not have the effect of foreclosing or unduly restricting the rail carrier’s ability to conduct its operations or otherwise unreasonably burden interstate commerce.”  And finally, “If the offloading facility were eventually to be constructed but the EIR or the land use permit, or both, included mitigation conditions unreasonably interfering with UP’s future operations to the facility, any attempt to enforce such mitigation measures would be preempted…”

The exact definition or meaning of “foreclosing or unduly restricting” and “unreasonably interfering with” was not spelled out in yesterday’s STB ruling.

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City staff again recommends approval of Valero Crude By Rail – Council can vote on Tues, Sept 20

By Roger Straw, September 15, 2016

New staff report again recommends overturning Planning Commission’s unanimous decision

oil tank carsOn Thursday, City of Benicia staff released the agenda for the crucial and perhaps decisive September 20 meeting of the Benicia City Council.

A staff report accompanying the agenda stands by the staff’s previous positions on Valero’s oil train proposal, recommending on p. 10 that Council approve Valero’s appeal, reject Benicia’s Planning Commission decision, and approve the Crude By Rail project.

The staff report fails to quote the City’s own strong defense of local land use authority as stated in its recent legal brief before the federal Surface Transportation Board (STB), and attaches the brief seemingly as an afterthought, the 10th among 10 attachments.

Although City staff follows protocol, offering Council four alternative courses of action including approval, denial, re-working the environmental report and continuing discussion – it’s recommendation is unenlightened, a repeat of previously heard pro-oil-train postures of Valero and the City’s paid consultants.

The one indication that staff is giving Council real alternatives is that they include a ready draft of a resolution to deny the project, a professional courtesy not afforded to Benicia’s Planning Commission last February.

That said, eight of the ten attachments that accompany the staff report  lean heavily in favor of Valero and against opponents. A new memo by Valero Benicia executive Don Cuffel disputes the findings of environmental expert Dr. Phyllis Fox. In the memo, Cuffel touts his own experience and authority, then launches into a 6-page attack on Dr. Fox, characterizing her arguments as based on “ideology or on heated rhetoric.”

The City’s release of Cuffel’s September 13 memo at this late date will no doubt make it difficult if not impossible for Dr. Fox to rebut and defend herself and her positions prior to the September 20 meeting of Council.

The agenda also attaches a second September 13 memo commissioned by Valero that claims Benicia’s Sulphur Springs Creek is perfectly safe from potential environmental impacts, and that the “proposed project meets the requirements and intent of the City of Benicia’s stream setback ordinance.”

It is interesting that public comment on the proposal has officially been closed, and yet Valero’s latest memos are attached to the official Council agenda.  Would the City have given such prominence to an afterword by Dr. Fox?  Did staff choose to attach the recent critiques of Benicia structural engineer Amir Firouz or Benicia engineer C. Bart Sullivan, who have pointed out on-site impacts that have nothing to do with rail-related dangers?  Of course not.  When does manufactured rebuttal by the project applicant come to a close here?

Valero plays hard ball, of course, and has done so throughout the more than three years of procedings.  One can only guess at the behind-the-scenes pressure applied by Valero to City staff and supposedly impartial City consultants.  Who knows why our City Manager, Assistant City Manager and Principal Planner have chosen to leave our employ in recent weeks?

Opponents of the project have been waiting and watching for signals from Benicia’s new interim City Manager Steve Salomon. It is disappointing, if not alarming, to witness staff’s new (old) approach on Valero’s dirty and dangerous proposal. The lone holdovers on senior staff are City Attorney Heather McLaughlin and Community Develolpment Director Christina Ratcliffe. These two will be responsible, along with Council members, if Valero gets its way.

One can only hope that City Council members have taken note of the recent derailment disaster in Mosier, Oregon, the consistent input of outside experts, local structural engineers, California’s Attorney General and outside attorneys, and make a decision – finally on September 20 – to be done with Valero’s foolish proposal.

There is ample evidence of off-site and on-site factors that are sufficient for denial of this project. An entirely inadequate environmental review should not be certified, and a permit should not be granted.

(For a full listing of links to the staff report and attachments, see Benicia City Council: Sept. 20 agenda & attachments.)

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Please attend the Tuesday, September 20 City Council meeting. Arrive early if you want a seat – some  will arrive as early as 5pm for this 7pm meeting! City Hall, 250 East L Street, Benicia.

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