Benicia City Council, Crude By Rail, Local land use authority, Local Regulation, Public permitting, Valero Benicia Refinery, Valero Crude By Rail

Benicia City Council approves “findings,” officially closes the door on Valero Crude By Rail

By Roger Straw, October 5, 2016

benicia_logoAfter lengthy discussion and significant tweaking on Tuesday night Oct 4, the Benicia City Council unanimously approved a Resolution to Deny Valero’s proposal to build an offloading facility for oil trains. After a long list of whereases, the document indicates “findings” that back up the Council’s unanimous September 20 vote to deny Valero’s permit.

Anticipating litigation, Council members spent hours reworking the findings submitted by City Attorney Heather McLaughlin, making every effort to approve a document that would be “bullet-proof” in a court of law.

In the draft submitted to Council by staff, a number of the findings pointed out serious impacts both uprail and onsite.  Council wordsmithed the document to move suggested “findings” that relate to OFFSITE rail impacts to a section of the document that was “for information only.”  That section is included only to alert State and Federal governmental officials and regulators that more needs to be done at those levels to reign in unsafe and polluting transport of North American crude oil by rail.

The remaining findings relating to ONSITE impacts are extensive, and should be more than adequate to stand up in any possible court challenge.

The edited version of Council’s Resolution is not yet available as of this writing.  The draft copy is available here.  Minutes of the Council meeting have not yet been posted, but VIDEO of the Oct 4 meeting is available on the City’s website, here.  The Council’s discussion begins at 2:19:10 on the video and goes for an hour and a half, until the end of the meeting, at 3:49:34.

City of Benicia, Crude By Rail, Valero Benicia Refinery, Valero Crude By Rail

City of Benicia belatedly notifies public of opposition documents received on September 20

By Roger Straw, October 4, 2016

benicia_logoThe City of Benicia sent out notice today of postings on its website of materials submitted by the law firm Adams Broadwell Joseph & Cardozo on September 20. The 34-page Adams Broadwell letter outlines a rebuttal of Valero’s attack on the facts and credibility of expert Phyllis Fox.

Note that the Adams Broadwell letter is labeled on the City’s website with date 9-21-16, but that the letter was sent on 9-20. I believe (but am not sure as of this writing) that the letter was in fact received on 9/20 and hard copies were made available to Council members (and the public?) prior to the Council meeting.

Note that a link is provided below for only the Adams Broadwell letter – a huge download, be patient.  The other docs can be found on the city’s website here.

Exhibits to SAFER California September 20, 2016 Letter

  • Adams_Broadwell_Joseph__Cardozo_Letter_9-21-16.pdf
  • Gordon_Schremp_Trends_in_Sources_of_Crude_Oil_2014_IEPR_Workshop_California_Petroleum_Overview__Background_Jun1.pdf
  • FEIR_Comment_B10-
  • Classification_and_Hazard_Communication_Provisions_for_Crude_Oil__Bakken_Crude_Oil_Dat1.pdf
  • Survey-of-Crude-Oil-Characteristics.pdf
  • North_Dakota_Petroleum_Council_Bakken_Crude_Quality_Assurance_Study.pdf
  • Analysis_of_Crude_From_North_Dakota_Raises_Further_Questions_About_Rail_Transportation.pdf
  • SJVAPCD_2007_Area_Source_Emission_Inventory_Methodology_310_-_Oil_Production_Fugitive_Losses.pdf
  • Preferred_and_Alternative_Methods_for_Estimating_Air_Emissions_from_Wastewater_Collection_and_Treatment_Final_Repo1.pdf
  • why-bitumen-isnt-nec.pdf
  • Transporting_Tar_Sands_As_Dangerous_as_Shale_Oil.pdf
  • EcoWatch_Yet_Another_Oil_Bomb_Train_Explosion_Marks_Fourth_Derailment_in_Four_Weeks.pdf
  • Haralampos_Tsaprailis_Properties_of_Dilbit_and_Conventional_Crude_Oil_February_2014.pdf
  • ChristinaLake-Railbit-MSDS.pdf
  • Cenovas_Heavy_Crude_OilDiluent_Mix_Flash_Point_-35_C_.pdf
  • MEG_Energy_Dilbit_.pdf
  • A_Dilbit_Primer_How_Its_Different_from_Conventional_Oil_Inside_Climate_News.pdf
  • The_Dilbit_Disaster_Inside_the_Biggest_Oil_Spill_Youve_Never_Heard_Of.pdf
  • The_Dilbit_Disaster_-_Part_1.pdf
  • Application_Enbridge_Superior_Terminal_Expansion_Application_2012.pdf
  • The_Dilbit_Diaster_-_Part_2.pdf
  • The_Dilbit_Diaster__-_Part_3.pdf
  • Application_Plains_7-21-15.pdf
  • NOV_Bakersfield_Crude_Terminal_5-4-15.pdf
  • Yuhuang_CAA_Title_V_Petition_Signed_Order_August_31_2016.pdf
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.

 

For safe and healthy communities…