Repost from the Vallejo Times-Herald

Valero asks Benicia council to continue hearing

By Irma Widjojo, 03/16/16, 6:25 PM PDT

Benicia >> Responding to new information revealed by Valero Benicia Refinery, Benicia City Council is set to decide in April if it would wait to make a decision on the refinery’s proposed project.

The council on Tuesday began the appeal hearing on the Planning Commission’s decision on Valero’s proposed crude by rail project.

Going against the city staff’s recommendation, the commission last month unanimously decided to deny certifying the project’s final Environmental Impact Report and deny the use permit application, which would allow the refinery to bring two 50-car trains a day carrying up to 70,000 barrels of North American crude oil.

The company’s oil is now being transported into the city by marine vessels and pipeline.

One of the major factors in the commission’s final decision was the issue of federal preemption.

During Valero’s presentation Tuesday, an attorney that has been working with Valero said the refinery intends to submit a petition to the Surface Transportation Board, or STB, to request for a declarative action regarding preemption in relation to the proposed project.

“The purpose is to get a decision from the STB of preemption as applied to the project,” said the attorney, John Flynn. “It should answer to the most important questions from both sides.”

City staff and Valero said any mitigations on impacts caused by railroad operations are preempted by federal laws, and that the commission is not allowed to deny the project based on railroad impacts.

Railroad operation is regulated by STB, a federal entity.

However, 11 “significant and unavoidable” impacts that were identified in the report are all rail related.

After four long-night meetings and hours of discussion and testimony regarding the issue, the commission unanimously agreed that the issue of preemption was very vague.

“We received letters from regional agencies who repeatedly say that federal preemption was not as broad as the city’s interpretation,” Commission Chair Donald Dean said Tuesday during his presentation. “There was a considerable discussion about how broadly are we interpreting the preemption issue. … It’s murky as best.”

He said the impacts presented in the report not only affect Benicia, but other communities where the trains would pass if the project is approved.

“To me the definition of a community goes beyond the boundaries of the city,” Dean said. “The commission had a conundrum. … (The staff’s finding) we don’t think we can make in good conscience.”

On Feb. 29, Valero filed a letter to appeal the decision.

Tuesday’s meeting was designated for presentations by the staff and Valero, and council’s questions for them. Public comments are set to be received on the next scheduled meeting April 4.

Flynn also said Valero agrees with the staff’s view on preemption.

“Your own attorney clearly and correctly advises the Planning Commission on preemption,” he said. “There was incorrect and highly misleading information by the opponent. The Planning commission unfortunately took the bait.”

Due to the newly revealed intent, Valero asked the council to continue the hearing until STB responded.

At the end of the meeting Tuesday, council agreed to discuss in April if a decision on the project should wait for STB’s response but will continue to receive public comments on the project then.

The rest of the hearing is set for April 4, 16 and 19, if necessary.