Category Archives: Public Health

Additional comments by environmental expert Dr. Phyllis Fox

By Roger Straw, April 19, 2016

Additional comments by environmental expert Dr. Phyllis Fox

The Benicia Independent is in receipt of an April 18, 2016 letter by Attorney Rachael Koss of Adams, Broadwell, Joseph and Cardozo, representing Safe Fuel and Energy Resources California (SAFER).

The letter introduces an additional 9-page analysis by environmental expert Dr. Phyllis Fox, “ROG and Benzene Emissions from Unloading Rack Operations.”  (ROG refers to Reactive Organic Gases.)

Dr. Fox’s new study includes sections on “Railcar Fugitive Emissions At Unloading Racks” and “Other Unloading Emissions” along with several tables.

This letter was submitted to the City of Benicia within the last hour, and had not yet been posted on the City’s website at the time of this posting.

    BENICIA CITY COUNCIL AGENDA for Apr 18 includes pro-Valero Staff Report and 11 attachments

    By Roger Straw, April 17, 2016

    Council Agenda for Apr 18 – staff documents in support of Valero

    Don’t fail to notice the significance of the Agenda for the Benicia City Council hearing on Monday, April 18. The Agenda was published on April 13 without any mention that there was a strongly worded staff report supporting Valero. The agenda has 11 attachments, linked below.

    • Crude By Rail Staff Report 4-18-2016 FINAL.pdf (This 19-page document includes 42 questions raised by Council members with staff responses, all supporting Valero’s proposal.  Staff concludes with “Staff’s recommendation for the Valero Crude by Rail Project FEIR and Use permit has not altered.”)
    • Attachment 1- Memo Surface Transportation Board Process (2-page memo by Benicia’s consulting attorney Brad Hogin, defining STB Declaratory Orders, and laying out procedures of the STB. Hogin points out that the STB does sometimes institute “declaratory order proceedings based on petitions filed by parties that are not rail carriers.”)
    • Attachment 3- MRS Response Letter to Fox Comments (8-page letter by the City’s consultant, Marine Research Specialists, defending its “Quantitative Risk Analysis” against criticism by Dr. Phyllis Fox.)
    • Attachment 2 – ESA Response Memo to Fox Comments (5-page letter by the City’s consultant, ESA, defending its against criticism by Dr. Phyllis Fox on air quality and flooding.)
    • Attachment 4 – Barkan Memo (4-page letter on crude by rail statistics by Christopher P.L. Barkan, professor at the University of Illinois at Urbana-Champaign. This is actually a very interesting document, with several tables of figures in response to questions about derailments, spills and explosions.)
    • Attachment 5- Andrew Chang Response Letter (4-page letter defending its report on fiscal and economic impacts.  Admits to no errors or overstatements.)
    • Attachment 6- SLO References to Preemption  (52 pages from the San Luis Obispo environmental report, concluding with the findings for denial.)
    • Attachment 7 -SEA-3, Inc. Surface Transportation Board Decision (7-page STB denial of a declaratory order petition, with guidance.)
    • Attachment 8 – Project Train Valero Property Diagram (1 page with two drawings showing the length of a 50-car crude oil train and the proposed unloading rack on Valero’s property.)
    • Attachment 9 – October 1, 2013 Council Report for Hogin’s Contract (2 page amendment providing for additional funds beyond $50,000 for consulting attorney Hogin to work on Valero Crude by Rail.  Glowing statements are made about his qualifications.  An attached Statement of Qualifications is not included in this PDF.)
    • Attachment 10- Public Comments Submitted April 7-12 2016 (Index on p. 1 shows letters from the City of Berkeley, Communities for a Better Environment, Benicians for a Safe and Healthy Community and 15 individuals, every one of which oppose Valero’s proposal.  In addition, the document shows a sample of an “identical letter” and lists several individuals there with no indication whether they submitted such an identical letter or some other letter.)
    • Attachment 11 – Speakers List for April 18 (This is the City’s  lists of individuals who filled out a comment card, including those who have not had an opportunity to speak and will be called on during the April 18, 2016 meeting, and those who already had a turn to speak during the April 4th or April 6th meetings, and will not be eligible to speak again.

      EAST BAY EXPRESS: Benicia Oil-by-Rail Battle Hinges on Legal Controversy

      Repost from the East Bay Express

      Benicia Oil-by-Rail Battle Hinges on Legal Controversy

      Opponents of oil-by-rail shipments want the city to block a proposed Valero facility, but Valero says the city lacks this power.
      By Jean Tepperman
      Andres Soto said Benicia shouldn’t wait on federal regulators to reject Valero’s oil-by-rail project. BROOKE ANDERSON

      An oil-by-rail facility that Valero wants to build at its Benicia refinery has been stalled by opponents concerned about environmental impacts and safety issues for over three years now. But Valero and an attorney working on contract for the City of Benicia claim that the city cannot stop the project because federal railroad law preempts the city’s powers. Project opponents say this is a flawed interpretation of federal law, however, and that Valero’s new oil facility should be cancelled.

      Valero’s original proposal was presented in 2013 as a simple plan to build a couple of rail spurs from the main railroad line to the company’s refinery, and the city announced its intention to approve the plan without doing an environmental impact review. A torrent of opposition greeted this announcement, however. As a result, the city was forced to conduct three environmental impact reviews and hold public hearings. Then, last February, Benicia’s planning commission unanimously reversed approval for the project. Now the oil facility is pending a final decision by the city council.

      Supporters say the crude-by-rail project is necessary to preserve Valero’s — and Benicia’s — economic viability and the nation’s energy independence. Opponents say it will cause increased air pollution and environmental destruction, and that expanding oil-by-rail transportation increases the risk of catastrophic accidents like explosions and fires due to derailment.

      But according to Bradley Hogin, a contract attorney advising the city, the federal government’s authority over railroads means that local governments are not allowed to make regulations that affect rail traffic — even indirectly. And when they’re deciding on a local project, cities are not allowed to consider the impact of anything that happens on a rail line, claims Hogin. The legal doctrine Hogin is referring to is called federal preemption.

      But other attorneys call Hogin’s interpretation of federal laws “extreme” and say that the city has every right to block the project if it so chooses. Environmentalists have also pointed out that Hogin has represented oil companies against environmental and community groups in the past. Project opponents say Hogin is biased in favor of Valero, and is not giving the city accurate legal advice. When asked if Hogin’s previous work suggests that he could be biased, Benicia City Attorney Heather McLaughlin said no. “I think he has had great experience in the refinery industry and I think that’s been helpful for us,” she said.

      Hogin’s legal argument that cities are preempted from influencing oil-by-rail projects has major national implications. As the shipment of crude oil via railroad has grown in recent years, so have the number of derailments, oil spills, fires, and explosions, including the 2013 explosion that killed forty-seven people in Lac Megantic, Quebec. As a result, communities across North America have demanded that local authorities stop rail shipments of crude oil through their towns. In addition to Benicia, San Luis Obispo County is currently in the midst of a battle over crude by rail.

      “Hogin is making a case that would affect cities across the nation dealing with crude by rail,” said Marilyn Bardet, a founder of Benicians for a Safe and Healthy Community. “They [are trying] to create a legal precedent here.”

      Many lawyers, including California Attorney General Kamala Harris, say the exact extent of federal preemption of local authority is still being worked out in the courts. In her legal opinion on the Valero project’s environmental review, Harris cited several cases in which local governments were allowed to implement health and safety regulations involving railroads.

      Several lawyers submitted opinions and testified in Benicia City Council hearings held on April 4 and 5 challenging Hogin’s interpretation. And in one of the hearings, Berkeley City Council member Linda Maio told her Benicia counterparts that the city council has the right to make its own land-use decisions. “This is in your town and you’ve been elected to see to the health and safety of your citizens,” said Maio.

      Valero and its critics have been arguing about the extent to which Benicia’s authority is preempted by federal law since last summer. After the planning commission rejected Valero’s project in February, the company showed up at the March city council meeting with a surprise request: that the council delay voting on the project until Valero has a chance to make an appeal to the federal Surface Transportation Board (STB), which regulates railroads.

      That didn’t sound right to Benicia resident Andres Soto, who works for Communities for a Better Environment, an environmental group opposed to the project, so Soto called the STB and talked to staff attorney Gabriel Mayer. In a report Soto submitted to the city council, he wrote that Mayer told him that the STB is not the final authority on federal preemption, and that the state and federal courts serve that purpose.

      Soto also said that the STB deals with disputes among railroads, and since Valero is not a railroad, it’s unlikely the agency would take its case. Many speakers at last week’s hearings urged the city council to deny Valero’s bid for a delay and reject the project immediately.

      But project supporters emphasized the economic benefits of bringing crude oil by rail to Benicia. Berman Olbadia of the Western States Petroleum Association, an oil industry lobbying group, said that Valero creates jobs and generates tax revenue. Michael Wolf, of Ageion Energy Services, said that oil by rail reduces California’s dependence on foreign oil.

      Later, however, Greg Karras, senior scientist at Communities for a Better Environment, said North American crude would create serious new problems that the environmental reviews for the Valero project did not address. Canadian tar sands produce very heavy oil with an extra load of toxic chemicals, said Karras. In addition, refining tar sands oil would dramatically increase the refinery’s emissions of carbon dioxide, the main pollutant causing global warming. The other major type of North American crude from North Dakota’s Bakken fields produces highly explosive oil. Trains carrying Bakken crude have been involved in a number of fires and explosions.

      People from “uprail” communities have also turned out at Benicia hearings to oppose the Valero project. “The oil trains will pass through our downtown and pass my house,” said Frances Burke, a resident of Davis. “We will have the fumes and particulate matter from increased daily trains. I’m also a potential victim of a deadly accident, explosion, or derailment.”

      Benicia resident Bardet said the project site is especially dangerous because the crude-oil-offloading tracks would be “adjacent to crude oil storage tanks and Sulphur Springs Creek, in a flood-plain zone and active fault zone, and also directly across from the industrial park along East Channel Road.” According to Bardet, derailment or fire involving flammable crude oil could have catastrophic results.

      College student Jaime Gonzalez said the project would further proliferate fossil fuels, which accelerate climate change, and that future generations will bear more of the burden. “The consequences would fall on the shoulders of my generation,” he said.

      Hearings will continue April 18 and 19 in Benicia, and the city council will then decide whether to wait for Valero’s federal appeal, or vote to approve or deny the project.