Category Archives: Public Health

EDITORIAL: Valero wins one; attorneys wrangle; opponents get testy

By Roger Straw, April 29, 2016

Valero wins one; attorneys wrangle; opponents get testy

Catching up on recent events

RDS_2015-06-21_200pxSorry, I had to take a little break.  When the Benicia City Council voted 3-2 to put off a decision on Valero’s crude by rail proposal (CBR), it was just a bit too much.

I was deeply discouraged by the majority’s need for yet more information.  Three Council members wish to hear from the federal Surface Transportation Board (STB) before making the decision whether to permit a rail offloading rack on Valero property – a project that would foul California air and endanger lives and properties from here to the border and beyond, a project that would clearly contribute to the ongoing effects of global warming.

So I was one discouraged 3½ year supposedly-retired volunteer.  I was in no shape last week to send out my Friday newsletter.

Here, as best I can summarize, is news from the last 2 weeks:

Valero wins one

You will recall that Valero appealed the Planning Commission’s unanimous February decision on crude by rail to not certify the environmental report and to deny the land use permit. Then at the Benicia City Council’s opening hearing on the appeal on March 15, Valero surprised everyone by asking for a delay in the proceedings so that it could ask for guidance from the federal Surface Transportation Board (STB).

City staff recommended against Valero’s request, rejecting the proposed delay as unnecessary and risky, given that the City and Valero could end up with a “stale” environmental report that requires yet another time-consuming revision and more hearings.

Opponents also argued against the delay, noting that the request would be carefully framed by Valero in its own favor, submitted for review to an industry-friendly STB, and result in a judgement that would still be subject to final review in a court of law. Opponents also pointed out the possibly that the delay was a Valero political tactic, given that this is an election year with three members of City Council up for re-election.

At the most recent City Council hearing on April 19, contract attorney Bradley Hogin disclosed that he was not involved in the staff decision to recommend against the delay, and that he disagreed with his employers. Given every opportunity by Council members, Hogin argued at length in favor of the delay. During verbal questioning, Council did not give similar opportunity to Hogin’s bosses to argue against the request for delay.

And guess what, 3 members of Council were convinced by the pleasant instruction of their outside attorney Hogin that we would do well to hear from the STB before rushing (3 years into the process) to judgement.

Win one for Valero.  Council will resume consideration in September.

The attorneys wrangle

We are asked to believe that the big issue here after 3 years of environmental review has nothing at all to do with the earth or the health and safety of you, me, our neighbors or the lands and wildlife.

Supposedly, according to Valero’s attorney and contract attorney Hogin, it’s all about “federal preemption.”  Supposedly, our city officials have no legal authority to impose conditions or mitigations or deny a permit in this case.

However, according to California’s Attorney General and environmental attorneys, “federal preemption” does not prohibit City government from making such land use decisions based on local police powers and the legal requirement to protect public health and safety. Federal preemption protects against state and local authorities regulating railroads. A refinery, says our Attorney General, is not a railroad. Go figure.

Anyway, Valero’s attorney has written several letters on preemption and taking issue with the Attorney General. The Attorney General has written several letters, sticking by its argument. Environmental attorneys have written several letters making similar arguments.

In addition to the letters, Valero’s attorney and Mr. Hogin have testified at length under questioning by City Council members. Environmental attorneys have been given only 5 minutes each to speak at hearings, with little or no back and forth questioning from City Council members.

Everyone I have talked to expects this decision to end up in court, whether or not the STB issues a ruling, and regardless of which way they rule.

Benicians for a Safe and Healthy Community gets testy

Like me, I suspect, members of our local opposition group, Benicians for a Safe and Healthy Community (BSHC) were highly disappointed and discouraged by the Council vote to delay for Valero and the STB.

In interviews and online statements that followed the April 19 Council vote, some BSHC members were quick to presume that the 3 Council members who voted for delay would also support Valero when it comes to a final vote in September.

Of course, a 3-2 vote favoring Valero in September is not the only possible outcome. Some would say that the next 5 months might best be spent respectfully reminding Council members of facts of the case, and encouraging them to make the right decision.

Those of us who have spent countless hours opposing Valero’s dirty and dangerous proposal have known all along that it is an uphill battle, that the odds are against us, that big business prevails all too often against the interests of health, safety and clean air.  But look what happened at our Planning Commission.  There is hope.

It seems to me that the presumption of a negative outcome can only serve to harden Council members’ attitudes and opinions.  But I may be wrong.

Some will continue to argue that Council members should be made to feel the public’s disappointment, that outrage and pessimism is understandable, and that an obvious implication is that unhappy voters will have their say in November.

I’m convinced that hardball politics and small-town respect for decision makers will need to co-exist over the next few months. Come September, we shall see.


    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.