Benicia City Attorney Heather McLaughlin, Benicia City Council, Benicia city staff, Benicia Planning Commission, Crude By Rail, Surface Transportation Board, Valero Crude By Rail

Valero Benicia Crude By Rail: No news is, well, a bit of news

By Roger Straw, September 2, 2016
[UPDATE as of Sept. 19, 2016 10AM PDT – still nothing from the STB.]
The Latest …STB logoEvery day, I check the Surface Transportation Board’s website, watching to see if they post a decision on Valero’s end run to delay the proceedings. Nothing yet. [If you go to their website, under E-Library, go to Decisions & Notices, or Filings, and search for “valero” under Case Title.]

Opponents of Valero’s dirty and dangerous proposal are trying to plan for the City Council’s September 20 meeting when Crude By Rail will again be on the agenda, but…

  1. no one knows at this time whether the STB will have issued an advisory or declined to do so, and if so, what the STB advice will be, and
  2.  no one is sure exactly what procedures will guide Council and the public in either case!

The latest guidance from City Attorney Heather McLaughlin is complicated, a bit confusing, and perhaps inconclusive.  In response to Benicia resident Marilyn Bardet’s inquiry, McLaughlin wrote on 8/30:

I am sorry but I have to give you the lawyerly “it depends” answer at this point. It will depend if we get an answer from the STB. If we don’t get an answer, the Council already closed the public comment. They would have to take action to re-open the hearing. If we do get an answer, the Council would have to open the public hearing to allow comment only on the new information from the STB. The Council discussion is a continuance from the last appeal hearing. They specifically continued the item to September 20th.

Then on 8/31, McLaughlin added:

If the STB responds in time for the meeting on the 20th, the Council would open the hearing for comments as it relates to the STB response. Public comments would have to relate to the response. I can imagine a range of public comments along the lines of the STB’s response means the EIR must be redone, or that the EIR is good enough, or that some aspect of it must be redone, or that some permit condition should be applied to address the STB response. As long as comments relate to the STB response, then the comment is ok. Comments on the EIR or permitting that do not relate to the STB response would not fit in since the hearing for general comments has already happened.

Quickie Background…

Last February, after 3 years of study, public and expert comments and lengthy hearings, Benicia’s Planning Commission voted unanimously to deny Valero Crude by Rail. Valero immediately appealed the decision to Benicia’s City Council.

In March, as Valero presented its appeal to the City Council, the refinery’s attorney surprised everyone by asking for a delay so that it could ask the federal Surface Transportation Board (STB) for a declaratory order favoring Valero’s proposal. Valero’s petition asks the STB to clarify whether the Interstate Commerce Commission Termination Act, or ICCTA, prohibits the city from taking rail-related impacts into account while deciding on the project.

In April on a 3-2 vote, ignoring the advice of city manager and staff, the City Council granted Valero’s request for a delay.  As part of the motion, the Council “approved continuing discussion on this item to September 20.”

After a delay of its own, Valero submitted its petition to the STB on May 31. On Jun 10 the STB granted an extension for public comments until July 8.  The STB has received multiple letters pro and con on Valero’s petition. Among the many letters is a response by the City of Benicia to Valero’s petition, in which the City asserts local land use permitting authority.

No one knows if – and when – the STB will give an opinion; and if the STB does weigh in, no one knows to what extent they will support Valero or uphold local land use permitting authority.

For complete background on the Appeal and STB, see the Benicia Independent’s APPEAL PAGE.  For public comments and City transcripts, see the Benicia Independent’s PROJECT REVIEW PAGES.  All things Valero CBR can also be found on the City of Benicia website.

 

Benicia City Council, Benicia city staff, Benicia Planning Commission, Crude By Rail, Local land use authority, Local Regulation, Surface Transportation Board, U.S. Department of Transportation, Valero Benicia Refinery, Valero Crude By Rail

Benicia Mayor outlines possible outcomes for City Council on Sept 20

Repost of an E-Alert by Benicia Mayor Elizabeth Patterson, September 18, 2016
[Editor: I would expect considerable discussion on Tuesday to center on whether to continue waiting for a Surface Transportation Board response to Valero’s end run around local permitting authority. Valero has been openly urging Council to continue to delay making a decision.  City staff and the Mayor are certainly expecting a motion to delay; 3 of the 4 possible scenarios outlined below center on continuation. (Don’t miss the quote from Christopher Hart, chairperson of the National Transportation Safety Board, and Mayor Patterson’s question, at the bottom of this E-Alert.)  – RS]

elizabethpatterson
AN E-ALERT FROM YOUR MAYOR,
ELIZABETH PATTERSON
Benicia, California

 

The Tuesday Council meeting’s main item is the decision on Valero Crude by Rail EIR and Land Use Permit. The complete packet is online here.

The following are potential scenarios for action:

  1. Valero could submit a formal written request for continuation of the appeal in order for the Federal Surface Transportation Board to render a decision on federal preemption of local land use authority. This request would be considered under the Open Government Ordinance as “new and substantial information” and the Council would decide whether or not this request is new and substantial. If the council votes in the majority, the consideration for delay for STB decision would be on the next agenda. The council would then have to decide whether to proceed or not with the action on the current agenda which is the appeal of the Planning Commission denial of the project. Staff is recommending approving the appeal.
  2. No request in writing for continuation but during the council consideration of the Valero appeal, Valero could request a “point of order” and ask for council consideration of continuing the delay. Council again would have to act on the point of order before proceeding to the agenda item. There could be the same outcome as in #1.
  3. No request for continuation by Valero and consideration of the appeal of the denial by the Planning Commission. A councilmember could request a continuation but council cannot continue the item without Valero’s consent – so a council member could ask for a continuation and if Valero agrees the consideration of continuation would have to be at the next meeting. See #1 for steps.
  4. No request for continuation by anyone. The council will hear staff report – there is no public comment on this item unless there is demonstrably new and substantial information (see above for steps by council for consideration). So the decision can be as follows:
    1. motion and second to deny appeal and thus let stand Planning Commission denial of the land use permit with or without prejudice (with means a new application of the same project must wait one year; without means no such restriction. A modified project would be considered a new application).
    2. motion and second to consider certification of Final Environmental Impact Report followed by a motion to deny appeal.
    3. motion to certify the FEIR and grant the appeal and approve the land use permit.
“We’ve been lucky thus far that derailments involving flammable liquids in America have not yet occurred in a populated area,” Hart [current head of the National Transportation Safety Board] said. “But an American version of Lac-Mégantic could happen at any time. Instead of happening out in the middle of a wheat field it could happen in the middle of a big city.”
The Bakken oil train explosion in Lac-Mégantic, Quebec, Canada, killed 47 people. As these safety issues are ignored, dismissed, or continued to be studied, an important question remains: How long until that luck runs out?
Benicia City Council, Benicia city staff, Benicia Planning Commission, Crude By Rail, Local land use authority, Local Regulation, Valero Benicia Refinery, Valero Crude By Rail

Benicia City Council: Sept. 20 agenda & attachments

By Roger Straw, September 15, 2016
Note: Find a full listing of links to the staff report and attachments below, and my summary and analysis here: “City staff again recommends approval of Valero oil trains – Council to vote on Tues, Sept 20.”  – RS

Yesterday, the City of Benicia released its agenda for the upcoming City Council meeting, including materials related to the continuation of Council discussions on Valero Crude By Rail.  See Item 15.A. on page 7.

Next Tuesday, our City Council can take a FINAL vote on Valero’s dirty and dangerous oil train proposal.

The report by Community Development Director Christina Ratcliffe gives City Council members four alternative courses of action and supplies every document needed to accomplish each alternative:

    1. Deny Valero’s appeal of the Planning Commission’s unanimous decision – thereby denying the project and stopping crude by rail in Benicia.
    2. Uphold Valero’s appeal and approve oil trains in Benicia.
    3. Send the Environmental Impact Report (EIR) back to City staff for yet another go-round.
    4. Take no action until after the federal Surface Transportation Board weighs in.

The agenda includes the staff report and 10 attachments, as follows:

  1. Draft Resolution FEIR
  2. Exhibit A-1 Statement of Overriding Considerations
  3. Exhibit B MMRP (Mitigation Monitoring and Reporting Program)
  4. Draft Resolution Use Permit , Project Approval
  5. Draft Resolution Use Permit, Project Denial
  6. Valero Submittal – Clarifiation and Rebuttal Cuffel 091316 (Rebuttal of Dr. Phyllis Fox’ expert analysis)
  7. Valero Benicia Sulfur Springs Setback Evaluation Memo (Note this is a huge PDF file, which may appear blank on your screen, displaying content off to the right.)
  8. Hogin Memo STB Process (Previously submitted 4/8/16)
  9. Valero’s Petition to STB for Declaratory Order FILED May 31, 2016
  10. City of Benicia STB Reply July 7, 2016

For a Benicia Independent analysis, see City staff again recommends approval of Valero oil trains – Council to vote on Tues, Sept 20.

Crude By Rail, Local Regulation, Oil trains, Public protest, Take Action

‘Raging Grannies’ arrested after oil train protest

Repost from KREM2, Spokane WA

‘Raging Grannies’ arrested after oil train protest

By Bre Clark, September 02, 2016 9:36 AM. PDT

SPOKANE, Wash. – Three grandmothers were charged for obstructing a train on Wednesday. The three are known as the “Raging Grannies.” They blocked BNSF train tracks in protest because they want Spokane to stop oil and coal trains from going through downtown.

The grandmothers said they tried to talk to city officials about fossil fuels and fracking but when that did not work, they decided to protest.

“Even one person can stop a train it’s very easy to stop a train,” Raging Grannie Deena Romoff said.

Romoff and the other two “Raging Grannies” wrote letters and tried to get the Spokane City Council to stop oil and coal trains from going through downtown but the measure failed.

“People are getting frustrated that our government is not doing anything, that the world isn’t doing anything,” she said.

Romoff and several others decided to take matters into their own hands.

“When you have one city along the track that says ‘you can’t come through here,’ what happens? It stops,” she said.

BNSF railway officials said the protest group stopped 11 trains, one was fully loaded with coal.

“Even for that short period of time it gives us that much more time on this planet in my looking at it,” Romoff said.

The “Grannies” said their time behind the bars will not be in vain. They said they are joining forces with other environmental protests across the country and will go out every day if they have to.

“You don’t have to get arrested,” Romoff said. “You can be out there. If you believe in having a life for your children and your grandchildren”

BNSF said this in a statement in regards to ordinance to stop oil train operations:

“There are a number of better options to promote safety, including collaboration with industry and federal regulators to further enhance safety. We stand ready to work with federal, state, and local leaders to continue to improve safety while maintaining the efficient flow of commerce to and from Spokane.”

For safe and healthy communities…