Benicia City Council, Crude By Rail, Surface Transportation Board, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

ANDRÉS SOTO: Open Letter to Benicia City Council members

By Andrés Soto, March 29, 2016

An Open Letter to Benicia City Councilmembers – About the Surface Transportation Board

Dear Councilmembers:

The bombshell request by Valero at your meeting on March 15, to have you issue a continuance of the Public Hearing of Valero’s appeal of the Benicia Planning Commission’s denial of Valero’s dangerous Crude By Rail project is out of order, without justification and should be denied out right.

Valero seeks a Declaratory Order and a Temporary Retraining Order AGAINST the City of Benicia from the federal Surface Transportation Board because of the lawful decision by the Benicia Planning Commission. Do not fall for this red herring. It is merely a distraction.

I was as stunned as you were to hear this request, and immediately presumed Valero had something up its sleeve that I had not anticipated. But now that I have researched the STB’s authority and activities, and spoken to a staff attorney for the STB itself, I am convinced more than ever that Valero’s request is the wrong question in the wrong forum at the wrong time. It is merely a distraction.

I went to the STB website and identified the agency’s specific duties and jurisdiction. Having read this, I then decided to contact the STB’s Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC). I called the OPAGAC and spoke to a staff attorney, Mr. Gabriel Mayer.

I discussed the possibility of Valero requesting the DO/TRO for its Crude By Rail project. Mr. Meyer informed me that the staff would examine the request, if received, and analyze whether it was an issue the staff or Board would decide, if at all. In any event the STB is not the final authority on federal pre-emption. The state and federal courts serve that purpose.

See below for copies of the STB Overview and ABOUT the Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC). I advise you to research this yourself. Do not rely on staff or the consultants.

“The Surface Transportation Board is an independent adjudicatory and economic-regulatory agency charged by Congress with resolving railroad rate and service disputes and reviewing proposed railroad mergers.”

While the Overview of the STB does identify that “The agency has authority to investigate rail service matters of regional and national significance”, my conversation with Mr. Meyer indicated it is specifically related to rail projects or projects that occur on railroad property, not off rail issues. Mr. Meyer further indicated there are many cases relative to the facts as I presented them to him. He sent me links to an STB decision from a case in Alexandria, VA, and Florida East Coast Ry Co v City of West Palm Beach, also attached.

Mr. Meyer also indicated that since Valero would be making that request, not Union Pacific AND because the project is entirely on Valero property within the City of Benicia’s sole jurisdiction, he could not foresee circumstances in which the STB would issue the DO/TRO.

Surely Valero knows this, so why would Valero even suggest such a ludicrous proposition? On this I will not speculate, but I can foresee what would happen if you DID decide to issue the continuance.

First, you be abrogating your responsibility to defend Benicia’s interest by submitting to a dubious authority to define Benicia’s local land use authority as a favor to a major corporation.

Second, because Valero has clearly lost the hearts and minds of Benicians and the vote of the Planning Commission, forestalling the project decision allows Valero to protect any councilmembers running for office who may be project supporters from the public wrath in November should they approve the project prior to the election.

Third, it sets a dangerous precedent of rewarding applicants who forum shop for an outside agency to exert its will over our community. You are under no obligation to grant this request and do not even need to take a vote on it. A hearing on this request for a continuance would just delay the inevitable – a hearing on the merits of the Valero Dangerous Crude By Rail Project itself. If Valero felt it needed this determination from the STB, it should have done so months ago. Why haven’t they asked California Attorney General Kamala Harris?

For Benicia’s sake, on April 4th, deny the request for a continuance, start public testimony on the project and make the right decision for Benicia’s future health and safety.

Overview of the STB
http://www.stb.dot.gov/stb/about/overview.html

The Surface Transportation Board is an independent adjudicatory and economic-regulatory agency charged by Congress with resolving railroad rate and service disputes and reviewing proposed railroad mergers. 

The agency has jurisdiction over railroad rate and service issues and rail restructuring transactions (mergers, line sales, line construction, and line abandonments); certain trucking company, moving van, and non-contiguous ocean shipping company rate matters; certain intercity passenger bus company structure, financial, and operational matters; and rates and services of certain pipelines not regulated by the Federal Energy Regulatory Commission. The agency has authority to investigate rail service matters of regional and national significance. 

Created on January 1, 1996 by the ICC Termination Act of 1995, the Board is the successor to the former Interstate Commerce Commission (1887-1995) and was administratively aligned with the U.S. Department of Transportation from 1996 to mid-December 2015. The STB Reauthorization Act of 2015 established the STB as a wholly independent federal agency on December 18, 2015.
The STB staff is divided into the following offices.

  • The Office of the General Counsel provides legal advice to the STB and defends agency actions that are challenged in court…
  • The Office of Economics performs three primary functions: data gathering and reporting, economic and policy analysis in support of Board decisions, and applied economic analysis, most notably the development of the STB’s costing system. The Office of Economics audits Class I railroads.
  • The Office of Environmental Analysis is responsible for undertaking environmental reviews of actions proposed before the agency, according to the national Environmental Policy Act and other environmental laws, and making environmental recommendations to the board.
  • The Office of the Managing Director handles agency administrative matters, such as facility, budget, and personnel management.
  • The Office of Proceedings researches and prepares draft decisions.
  • The Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) serves as the public’s point of contact to the STB as well as the agency’s outreach arm. It works with members of Congress, the public and the media to answer questions and provide information about the STB’s procedures, regulations and actions. The office houses the Rail Customer and Public Assistance Program, which provides an informal venue for the private-sector resolution of shipper-railroad disputes, and also assists Board stakeholders seeking guidance in complying with Board decisions and regulations. The office also oversees all aspects of rail operations subject to the agency’s jurisdiction to ensure that such operations are consistent with each carrier’s statutory responsibilities. This office maintains the STB library.

ABOUT the Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC)
http://www.stb.dot.gov/stb/about/office_ocps.html

The Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) serves as the STB’s primary contact point with the public. The office interacts with members of Congress, executive agencies, state and local governments, news media, stakeholders, and other interested persons to provide information and informal guidance as to the STB’s procedures, regulations, and actions. OPAGAC also serves as the agency’s compliance arm, overseeing the actions of transportation carriers subject to the agency’s jurisdiction to ensure that these carriers are operating in compliance with their statutory responsibilities.

Office staff members are thoroughly knowledgeable about the STB and its processes, as well as the operational components of the rail industry. They are available to answer questions about the STB’s official decisions, pending cases, and the laws that we implement. OPAGAC does not provide opinions about how the STB Members will vote on a particular case, or when a case will be decided. 

OPAGAC houses the STB’s Rail Customer and Public Assistance Program. Initiated in 2000, the Program provides an informal venue for the private-sector resolution of shipper-railroad disputes, and also assists Board stakeholders seeking guidance in complying with Board decisions and regulations. At no cost to parties, the Program facilitates communication among the various segments of the rail-transportation industry, and encourages solutions to railroad operational and service issues without the use of litigation or the Board’s formal processes.

Andrés Soto is a member of the Steering Committee of Benicians for a Safe and Healthy Community
Benicia City Council, Crude By Rail, Local Regulation, Public permitting, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

TRANSCRIPT: City Council hearing of March 15

By Roger Straw, March 29, 2016

Benicia, California

Today the City of Benicia posted a written TRANSCRIPT of the City Council’s March 15 meeting.

The document is not indexed, and 389 pages long – but it is searchable text.

Page 43 – Council begins deliberations on Valero’s appeal on page 43 of the PDF with a few procedural questions.

Page 46-68 – A public comment by Karen Berndt arises on page 46.  Council member Tom Campbell raises questions about the process on p. 49 and with one more comment from a member of the public, going through page 58.  After which there are ex parte disclosures, and on page 63, we get to City Planner Amy Million’s introductions and procedural questions, and and FINALLY, on page 68, the STAFF PRESENTATION.

Page 90 – The ESA Consultants’ presentation begins on p. 90.

Page 109-144 – City Attorney McLaughlin introduces and praises Contract Attorney Brad Hogin on page 109, asking everyone to refrain from “abusing” him.  Mr. Hogin begins on page 110.  On page 137, Mr. Hogin begins his review of the San Luis Obispo Phillips 66 oil train project – a review that has since been characterized as misleading and contrary to fact.

Page 144 – On page 144 Ms. Million begins a description of the Appeal process and a defense of staff’s recommendation to overturn the Planning Commission’s unanimous decision.

Page 154 – Planning Commission Chair Donald Dean begins his presentation on page 154.

Page 182 – Planning Director Christina Ratcliffe adds a final staff presentation beginning on page 182, in which she notes the differences between the Planning Commission and staff, and again outlines the Council’s options.

Page 184-201 – Valero’s Don Cuffel begins his presentation at the bottom of page 184.  Valero’s attorney John Flynn begins his remarks on page 194, and concludes with the request to delay procedings on pages 200-201.

Page 201-389 – Council questions begin on page 201, focusing for quite some time on the surprise delay request by Valero.

(It is beyond the scope of this article to index the lengthy question-answer period, which continues to the end of the meeting, on page 389.)

 

Crude By Rail, Davis CA, Sacramento CA, Take Action, Valero Crude By Rail

YOLANO CLIMATE ACTION: Update on Valero Crude-by-Rail and Next Steps

Repost from Yolano Climate Action

Update on Valero Crude-by-Rail and Next Steps

Posted: March 26, 2016 in Rail Transport of Oil

Linda Maio, Vice Mayor of Berkeley, spoke to the Planning commission.
Linda Maio, Vice Mayor of Berkeley, spoke to the Planning commission.

After three years of study, the Benicia Planning Commission voted not to certify the final EIR and denied the Valero Crude-by-Rail on February 11, 2016.    Read about the Planning Commission Resolution here.

Listen to the Chairman’s report to the City Council here.

Valero appealed the decision to the Benicia city council who began their hearing on March 15 and will take public testimony on April 4, 6 and 19.   There are two steps residents can take now.

A. Write letters:

The public may send letters for the city council members to:

Amy Million, Principal Planner, Benicia Community Development Department, by email: amillion@ci.benicia.ca.us.
You may also send your letter Amy Million by mail to 250 East L Street, Benicia, CA 94510, or by Fax: (707) 747-1637.  Please include a request that the letter be added to the record for the Valero Crude-by-Rail Project.

Suggestions for letters:

  1. Write your first letter.  If you have not commented during the last three years, here is your chance to comment on your concern, such as the risk of spill or explosion in the event of a derailment with reference to the habitat of city of Davis or even the proximity to your home, the added air pollution, the additional ghg emissions, the lack of proof of liability coverage, the location of the tracks through downtown Davis, etc.
  2. Past letters – yes! Do not assume the city council has read what you wrote in the past three years.  They have access to those documents, but that does not mean they’ve put in the hours and hours to read the thousands of pages of testimony!    So by all means use ideas and language from past letters.  Refer them to past letters for more details if you summarize, if those points are still the ones you want to emphasize.  It’s good to refer to past documents and ask that they be included in the record.
  3. Photographs are excellent. If you have any photos showing how near the tracks are to where you live or work, include them.  Better yet, email high resolution photos to lnittler@sbcglobal.net with information about the location and subject of the photo.  We may be able to use the photo in a powerpoint of Davis.
  4. New arguments are ok! It’s also fine to introduce new thoughts and concerns in your letters and spoken testimony now.
  5. Critique of EIR process ok. It’s a great idea to mention whether we felt our letters were carefully considered and the responses to them were thorough and taken seriously.  If we were disappointed by the responses, describe why.  (Hint:  Scanning through the pages, they scarcely replied to any of the letter comments to the Revised EIR; they just acknowledged the comments, or dismissed them as unrelated, etc.)  We’re critiquing the company who conducted the EIR.

B. Ride the bus to the Public Hearing on April 4th in Benicia

  1. Ride the bus so we have a Davis contingent on April 4th. Please see the Yolano Climate Action post for bus sign-ups.  There will be a Davis pick-up at Caffe Italia at approximately 5:15.  You do not need to speak.  Your silent presence is very helpful.  We have a group of 7-8 of us who will speak.
  2. April 4 agenda available after March 28. The content of the April 4 meeting is not yet announced. It will most likely address two issues:  1) the Valero proposal to refer the federal preemption decision to the federal Surface Transportation Board (STB has pros and cons), and 2) the beginning of testimony from the public on whether to certify the FEIR and/or approve the project.  Staff will make recommendations on March 28 and an agenda will be posted before Ap. 4 so we’ll at least know the order.  We will not know any protocol about speaking, although there will not be sign-ups like last time.  So…on  April 4 & 6 & 19
    1. We each will get only a given number of minutes to speak (not more than 5, maybe less) and only one time to speak during this 3-day testimony period. I think.
    2. Davis residents may not want to address the Valero proposal to refer the federal preemption decision to the Surface Transportation Board.
    3. We may prefer to save our time to stay with what concerns us most directly: Crude-by-rail is too dangerous to go through our neighbors every day or any time.
    4. It’s impossible to tell at this point and probably until Ap. 4 and maybe not even then, when we’ll get to testify. Maybe no time for testimony on the FEIR and project on April 4?  But we  have to be prepared and present just in case.
Benicia City Council, Benicia Planning Commission, Crude By Rail, Davis CA, Sacramento CA, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

DAVIS & SACRAMENTO: How to participate in Benicia oil train hearings April 4th

From an email by Lynne Nittler, Davis CA, March 26, 2016

Still time to participate in Valero-Benicia Oil Train Decision

YolanoClimateActionCentralAfter three years of study, the Benicia Planning Commission voted not to certify the final EIR and denied the Valero Crude-by-Rail Project on February 11.

This decision came about through the sustained efforts of Benicians for a Healthy and Safe Community with consistent support from individuals in Davis and Sacramento who wrote letters and testified during all the stages of the Environmental Impact Review process.  The involvement of many uprail agencies (7 Air Quality Management Districts, lawyers from Sierra Club, NRDC, Forest Ethics,  Stanford Law Center, the CA Attorney General, etc.) and governmental bodies (City of Davis, Yolo County, Sacramento Area Council of Governments, etc.) were instrumental in the Planning Commissioners decision-making. Many hundreds of pages of written comments were submitted.

Valero appealed the decision to the Benicia City Council.  Public testimony will be on April 4, 6 and 19.

Concerned Davis residents are encouraged to write their specific concerns to the Benicia City Council.  Hints for letter-writing ideas and where to send the letters are found at the website below.

Residents are also invited to reserve a space on the bus heading to Benicia on April 4th.  There will be a pickup at Caffe Italia parking lot at approximately 5:15pm to arrive in Benicia around 6pm.  The bus will leave Benicia at 9pm.  Riders do not need to testify.  We need a large Davis contingent present to show our concern about the prospect of oil trains coming through our downtown.

For more details, read “Update” and “Ride the bus” posted at www.yolanoclimateaction.org  For questions, contact Lynne at lnittler at sbcglobal dot net.

For safe and healthy communities…