Repost from The Benicia Herald

State AG: Valero DEIR ‘inadequate’

October 9, 2014 by Donna Beth Weilenman

■ Kamala Harris letter to city: Crude-by-rail report fails to address multiple key issues

In a letter composed Oct. 2, California Attorney General Kamala D. Harris urged Benicia to revise the Draft Environmental Impact Report prepared for the proposed Valero Crude-by-Rail Project.

She and Deputy Attorney General Scott J. Lichtig wrote Benicia Principal Planner Amy Million, saying, “Unfortunately, the DEIR for this project fails to properly account for many of the project’s potentially significant impacts.”

The city released the lengthy DEIR June 17 and extended the public comment period on the document until Sept. 15 at the request of many members of the public as well as such agencies as the Sacramento Area Council of Governments.

Harris, in her letter, said the DEIR underestimates the chances of accidental chemical releases because it looks at “only a fraction of the rail miles traveled when calculating the risk of derailment, by relying on a currently unenforceable assumption that newer, safer tank cars will be used, by failing to adequately describe the potential consequences of an accident resulting in a release of crude oil, and by improperly minimizing the risk to public safety from increased rail-use.”

In fact, she wrote, the DEIR “ignores reasonably foreseeable project impacts” by limiting its scope to the 69 miles of rail between Benicia and Roseville.

She criticized the emissions baseline used to determine whether the project would affect air quality, and wrote that the document also failed to analyze the impacts from “the foreseeable change in the mix of crude oils processed at the refinery.”

The DEIR, moreover, “fails to consider the cumulative impacts on public safety and the environment from the proliferation of crude-by-rail projects proposed in California,” Harris wrote, saying that about a dozen such projects are in various stages of consideration and completion in the state.

She also wrote that the DEIR “employs an overly broad determination of trade secrets,” meaning the document didn’t provide enough information for an adequate analysis of safety risks and air quality impacts from refining the crude oil.

“The DEIR frustrates the purpose of CEQA (the California Environmental Quality Act) by not disclosing information regarding the particular crude oil feedstocks expected to be delivered upon project completion,” Harris wrote.

Missing information includes weight, sulfur content, vapor pressure and acidity of the crude, she wrote, adding that both the Department of Transportation (DOT) and the California Governor’s Office of Emergency Services have said specific characteristics of crude oil transported by train aren’t protected trade secrets, and that such information has been published about other projects.

“Benicia’s nondisclosure of this information deprives both the public and Benicia officials of the informed decision-making process that is the ‘heart’ of CEQA,” Harris wrote.

In her 15-page letter, the attorney general wrote that from 2012 to 2013 deliveries of crude oil into California increased from 1 million barrels to 6.3 million barrels, “a rise of 506 percent.”

That method of delivery is replacing crude oil transported by ship and pipeline, she wrote.

Harris wrote that about a dozen crude-by-rail projects are in various stages of development in California, and if all are approved, billions of gallons of crude oil could be brought into California by train.

“The trend shows no sign of abatement, and the California Energy Commission projects that by 2016, the state will import up to 150 million barrels of crude by rail,” she wrote.

Only recently has crude oil from the North Dakota Bakken shale and Canadian tar sands been arriving in the state, she noted, adding that “Bakken crude is unlike other crude being produced or shipped in this country, and it presents an ‘imminent hazard’ because it is more ignitable and flammable, and thus more likely to cause large, potentially catastrophic impacts from a train crash or derailment.

“On the other end of the spectrum, crude oil extracted from Canadian tar sands is a low-grade, high-sulfur feedstock that is not as volatile as lighter crudes like Bakken but contains chemical properties that make it particularly damaging to the environment when spilled and/or burned.”

Harris called the increase in oil delivery by “high-hazard flammable trains” a “new potential hazard to public safety and the environment.”

High-hazard flammable trains (HHFT) are those with 20 or more carloads of flammable liquids that Harris wrote would experience more frequent and more severe derailments because they are heavier, longer, less stable and harder to control than other rail traffic.

To back her contention, Harris wrote that in 2013 alone trains spilled more than 1.1 million gallons of crude, saying that represented a 72-percent increase in the amount of oil spilled collectively in the previous 40 years.

Of the nine major accidents she wrote were crude-by-rail-related, she listed four often-cited incidents: the July 5, 2013 derailment at Lac-Megantic, Quebec, Canada, in which 47 died when 72 tank cars on a runaway train crashed into the city’s downtown area; the Nov. 8, 2013 accident and fire in Aliceville, Ala., when 30 tank cars derailed; the Dec. 30, 2013 collision in Casselton, N.D., between an oil train and a grain train in which 34 cars derailed and crude exploded and burned for more than 24 hours; and the April 30, 2014 derailment in downtown Lynchburg, Va., in which three cars caught fire and some cars landed in a trackside river.

When Harris turned her attention specifically to the Benicia DEIR, she wrote that it “employs improper standards of significance, unenforceable mitigation measures and inadequate analyses to conclude that the project will not have a significant impact on ‘up-rail’ communities.”

The project needs a use permit to extend Union Pacific Rail into Valero Benicia Refinery property so two 50-car trains can deliver 70,000 barrels of North American crudes daily. According to the proposal, the oil delivered by rail would replace an equal amount currently brought to the refinery by ship.

Other elements of the project would be construction of offloading racks, rail spurs and supply piping, in addition to a few other changes at the plant.

Harris disagreed with the DEIR’s contention that the chances of a crude oil spill from a train is one in 111 years, in part because the document only looks at tracks from the Union Pacific’s Roseville terminal to Benicia.

“The tank cars containing crude oil do not originate in Roseville,” she wrote. “They are delivered by rail from particular sources, including North Dakota and Canada.”

Even if the odds are correct, Harris wrote, she disagreed that it would be “an insignificant impact,” and pointed out the 27 schools near that stretch of rail weren’t given consideration regarding public health and safety risks.

She also wrote that the DEIR assumes Valero only would use the newer 1232 tank cars for its oil transport.

Those cars are considered to be stronger and more reinforced than the DOT-111 models, designed in the 1960s, that have been involved in some of the recent high-profile derailments, but Harris noted the newer cars aren’t required by current federal regulations. The DOT is currently collecting comments on new tank standards, and is proposing to phase out the DOT-111 models by 2017.

The Association of American Railroads (AAR), an industry trade group, said 98,000 of the older DOT-111 cars remain in service and are carrying both crude and ethanol in the U.S. and Canada, and Harris said the DOT still allows their use for that purpose.

Meanwhile, the attorney general wrote, oil companies are asking to delay that change even longer.

However, not all participants in the industry feel that way. BNSF, the largest carrier of Bakken crude, announced in February that it would buy 5,000 new tank cars built with the most modern safety features — an unusual step for a railroad, since most do not own cars, but haul cars owned or leased by customers.

AAR has recommended phasing out or refitting the older model cars with improved valves and handles, thicker tanks and thermal protection.

Some Canadian companies have chosen to charge higher rates for older-model cars in hopes of accelerating the switch to newer cars.

According to the Rail Supply Institute, an organization representing shippers and tank car owners, 55,000 of the newer model cars have been ordered through 2015.

Some observers remain unconvinced that stronger cars are the solution. The Lynchburg, Va., crash involved cars built after 2011.

Harris wrote that the DEIR doesn’t assure that Valero has enough 1232 upgraded tank cars to avoid the use of the DOT-111 cars.

She also criticized the DEIR for considering only spills of more than 100 gallons as “significant.” She wrote that significant impacts could come from smaller spills.

Should a spill occur and ignite in an urban area, contaminate the Suisun Marsh or require a significant hazardous materials cleanup, “the costs borne by the California taxpayer from such a calamity could be substantial,” Harris wrote.

She explained that the DOT recently acknowledged that insurance policies carried by crude-by-rail transporters are often insufficient to cover even minor accidents.

The DEIR indicates risks of release on marine vessels traveling in the ocean would be reduced by the Valero project. Harris wrote that those risks “are fundamentally different than the risks associated with crude by rail traveling long distances through urban communities and environmentally sensitive lands.”

She did not elaborate about hazards to marine life from spills, collisions or equipment use. Some environmental groups have expressed concerns about those impacts, but their representatives have said accumulating data on those impacts can be challenging because whales, dolphins, sea turtles and other animals sink to the ocean bottom after being killed or injured, and thus can’t be documented.

Harris objected to the DEIR’s contention that the project would not have a significant impact on air quality even if emissions increased. The report said those increases wouldn’t exceed the maximum allowed under the refinery’s existing permits.

“Rather than using a baseline describing ‘existing conditions,’ Benicia incorrectly uses the maximum permitted emissions as the baseline, asserting that this is proper,” she wrote.

“There is no evidence, however, that the refinery has ever operated at the maximum permitted emissions level since the VIP (Valero Improvement Project) was completed.”

Harris also contended that the DEIR doesn’t adequately analyze potential air quality impacts from processing the new blended crude.

Million, City Manager Brad Kilger and Valero officials were asked for comment on Harris’s letter, but did not reply by press time Wednesday.

“We urge the city of Benicia to revise the project’s DEIR to address the deficiencies explained in this letter so that the City Council and general public are provided a full and accurate accounting of the project’s environmental impacts,” Harris wrote.