Benicia City Council, Crude By Rail, Legal action, Local Regulation, Public permitting, Valero attorney John Flynn, Valero Benicia Refinery, Valero Crude By Rail

Valero attorney claims that Benicia APPROVED Crude by Rail on Sept. 20!!

By Roger Straw, October 3, 2016

Incredible: “The permit is therefore approved by operation of law.”

In yet another bizarre legal maneuver, Valero’s attorney John Flynn sent a letter to the Mayor and members of the City Council on October 3, claiming that by various acts of commission and omission, the City Council on September 20 failed to properly deny Valero’s permit, and that therefore the permit is “approved by operation of law.”

The logic is twisted, but stick with me.

Flynn is claiming that “the City Council’s action of September 20 violated both state and federal law” on a variety of grounds:

  • Timing – Valero claims that a decision with proper findings in support of denial was required by September 20, but the Council sent staff back to revise the findings in the draft resolution of denial.
  • Council members’ statements – Valero claims that Council members were required to verbally state the grounds upon which they voted to deny the project, and that they ONLY stated concerns about rail-related impacts, which Valero continues to claim are preempted from consideration under federal law.  Note here that Valero re-states its failed argument that even ON-SITE rail impacts are preempted.
  • Reliance on a letter received on September 20 – Valero claims that the City may not rely on information in a letter from the law firm Adams Broadwell Joseph & Cardozo in framing its arguments for denial. Poor Valero states that it (and the public) didn’t have a chance to rebut the letter. This from the company which sent two last-minute unrebuttable letters which City staff included in the Council’s agenda packet!
  • Reliance on the Surface Transportation Board letter – Valero claims that Council relied on the STB’s dismissal of Valero’s petition in its decision, and that Valero and the public never had an opportunity to comment on the STB’s decision. Valero demands that the City not refer to anything in the federal agency’s decision when drafting findings for denial.
  • Council’s request for staff to edit its draft resolution of denial – Valero claims that any editing of the draft resolution would amount to “post hoc rationalizations.”  Baloney. It’s done all the time.
  • The letter goes on and on, but I will leave it to the City Attorney and others to flesh out Valero’s twisted bullying tactics.

IMPORTANT: The letter concludes by foreshadowing a lawsuit against the City:

“The transcript of the September 20 hearing will no doubt clearly establish for a Court that the only grounds invoked by the Council for denying Valero’s application were rail-related grounds, and that any other grounds invoked in the written findings proposed by staff and by Adams Broadwell are no more than baseless afterthoughts, in a desperate bid to deny Valero’s permit application, despite the lack of any legal or factual bases for such a denial.”

Benicia City Council, Crude By Rail, Public permitting, Valero Benicia Refinery, Valero Crude By Rail

Benicia City Council to consider findings for FINAL denial of Valero CBR

By Roger Straw, October 4, 2014

benicia_logoBenicia City staff released the AGENDA for the October 4 City Council meeting, including an important staff report, CONFIRMATION OF THE RESOLUTION TO DENY THE USE PERMIT FOR THE VALERO CRUDE BY RAIL PROJECT.

EXECUTIVE SUMMARY:
At the September 20, 2016 City Council meeting, the Council denied the use permit for the Valero Crude By Rail project and requested a revised resolution be brought back for final approval at the October 4th Council meeting. Per the Council’s direction, the proposed resolution incorporates some General Plan policies as well as issues raised by the state Attorney General, the Bay Area Air Quality Management District and Caltrans.

The agenda also included the following important documents:

It will be an important Council meeting tonight. Plan to attend if you can – 7pm in Council Chambers, 250 East L Street, Benicia.

 

Albany NY, Crude By Rail, Federal pre-emption, Local land use authority, Local Regulation, Surface Transportation Board, Valero Benicia Refinery

Benicia decision being felt in Albany NY

Repost from the Albany Times-Herald

Ruling on oil trains hailed

Federal action seen as boost to local, state control over projects

By Brian Nearing, Thursday, September 29, 2016 10:03 pm

ALBANY  >  A federal ruling on a oil-by-rail facility in California could hand state and local officials in New York and across the country a powerful legal tool to oversee the projects, which have been controlled primarily by federal rules.

The federal Surface Transportation Board this month sided with officials in Benicia, a small city near San Francisco, in a dispute with an oil refining company over a proposed storage terminal for crude oil brought in by tanker trains. The Valero Refining Company had argued it was exempt from a city denial because it was functioning as a rail carrier, and governed by federal transportation rules — a legal concept called “preemption” — but the federal board rejected the claim.

“Valero is not a rail carrier, nor is it acting under the auspices of a rail carrier,” according to the federal decision. Critics of oil train traffic directed in recent years to two oil terminals at the Port of Albany hailed the ruling as a victory for more state and local control.

“This puts the state Department of Environmental Conservation in a very strong position to require the oil terminals to explain the full impacts of their operations,” said Chris Amato, an attorney for the not-for-profit environmental group Earthjustice.

This month, the DEC announced it was requiring one terminal operator, Global Partners, to answer additional environmental questions on its request to construct a crude oil heating terminal that could be used to process Canadian tar sands oil.

“Nothing in the opinion suggests that DEC’s current course of action with respect the Port of Albany should be altered,” a DEC statement said.

Critics of earlier DEC environmental approvals for the Global and Buckeye oil terminals have been urging the state to rescind its approvals, but the state had responded that such authority rested with the federal government, not the state.

Crude By Rail, Derailment, DOT-117, Federal Railroad Administration, Federal Regulation (U.S.), Fire, Mosier OR, Pipeline and Hazardous Materials Safety Administration (PHMSA), State regulation, Train speed, U.S. Department of Transportation, Unit trains

Washington Republican asks USDOT to consider further crude-by-rail regulations

Repost from American Shipper

Lawmaker asks USDOT to consider further crude-by-rail regulations

Rep. Jaime Herrera Beutler, R-Wash., has requested the Department of Transportation study potential methods for reducing the combustibility of crude oil trains.
BY BEN MEYER |FRIDAY, SEPTEMBER 30, 2016

U.S. House Rep. Jaime Herrera Beutler, R-Wash., is urging the Department of Transportation (DOT) to consider further regulation of freight trains carrying crude oil.

Beutler earlier this week sent a letter to U.S. Transportation Secretary Anthony Foxx, Federal Railroad Administrator Sara Feinberg and Pipeline and Hazardous Materials Safety Administrator Marie Therese Dominguez asking DOT to study potential methods for reducing the combustibility of crude oil trains.

Specifically, Beutler asked DOT to consider whether interspersing oil tank cars with non-volatile commodities might make them less likely to catch fire in the event of a derailment.

Beutler’s letter was largely prompted by a growing number of destructive derailments involving crude oil trains in recent years, the largest of which claimed the lives of 47 people in Lac-Mégantic, Quebec in July 2013.

Back in June, a Union Pacific Corp. train carrying crude oil derailed near Mosier, Ore., about 68 miles east of Portland, causing some of the tank cars to burst into flames and spill oil into an adjacent section of the Columbia River. That train was en route from Eastport, Idaho to Tacoma, Wash. carrying crude oil from the Bakken formation, which is more flammable and dangerous than other types of crude oil.

“Although far less catastrophic than it could have been, the [Mosier] derailment highlighted the need for strong safety measures to address shipments of volatile and hazardous commodities through the Columbia River Gorge – whether related, or unrelated to oil shipments,” Beutler wrote in the letter. “Subsequently, I am writing to request information on dispersing tank cars carrying oil, or other hazardous materials, with non-volatile products throughout trains.”

She asked DOT to consider whether continuous blocks of oil tank cars increases the risks of combustion, potential benefits of requiring disbursement of cars carrying flammable materials throughout a train, and possible effects on combustibility of use of newer DOT-117 tank cars.

In addition, Beutler asked if federal regulators have studied speed limits reduction for oil trains as a way to mitigate the risk of combustion.

Washington state lawmakers last month adopted new regulations surrounding the transportation of crude oil by rail and pipeline that officially take effect Oct. 1. Developed by the Washington Department of Ecology at the request of the legislature, Chapter 173-185 WAC, Oil Movement by Rail and Pipeline Notification, established reporting standards for facilities receiving crude oil transported by rail and pipeline, and for the department to share information with emergency responders, local governments, tribes and the public.

On the federal level, DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA), in coordination with the Federal Railroad Administration, in August released final rules amending the federal hazardous materials regulations related to the transport of crude oil and ethanol by rail.

The rule changes, first introduced by DOT in May 2015 as required by the 2015 Fixing America’s Surface Transportation (FAST) Act, include an enhanced tank car standard and an “aggressive, risk-based” retrofitting schedule for older tank cars carrying crude oil and ethanol.

In addition, the rules require trains transporting large volumes of flammable liquids to use a new braking standard; employ new operational protocols such as routing requirements and speed restrictions; share information with local government agencies; and provide new sampling and testing requirements DOT said will “improve classification of energy products placed into transport.”

The Senate in May unanimously passed the Railroad Emergency Services Preparedness, Operational Needs, and Safety Evaluation (RESPONSE) Act, which aims to provide additional training for first responders, specifically for handling freight train derailments that include hazardous materials such as crude oil.

Originally sponsored by Sen. Heidi Heitkamp, D-N.D., the legislation establishes a public-private council of emergency responders, federal agencies and industry stakeholders tasked with reviewing current training methods and prescribing best practices for first responders to Congress. The council will be co-chaired by the Federal Emergency Management Agency (FEMA) and PHMSA. Rep. Ron Kind, D-Wis., has introduced a companion bill to the RESPONSE Act in the House of Representatives.

“Currently, oil trains are traveling along the Columbia River Gorge, and my focus is on ensuring federal regulations are making these shipments as safely as possible,” Beutler said in a statement. “Long lines of oil cars are becoming a more familiar sight in our region, and if breaking them up into smaller blocks will better protect our citizens, the Columbia River and nearby forests, we should put a federal standard in place – quickly.”

For safe and healthy communities…