Tag Archives: Public permitting

Benicia Mayor: Public comment period closed – now what?

From an email by Benicia California Mayor Elizabeth Patterson
November 5, 2015


Public Comment Period Closed on Recirculated Draft Environmental Impact Report for Valero Proposed Crude by Rail Project. 

What happens next?

Last week the extended Valero Crude by Rail Recirculated Draft Environmental Impact Report (RDEIR) public comment period closed.  People are asking, “now what?”.

Following are some of the scenarios that could happen.  The list is in no way indicative of my thoughts or opinions and I have not asked for validation of any of the following scenarios by city staff.  But the list does represent some of the questions and scenarios being asked by the public.  I anticipate these kinds of questions will be raised at the Planning Commission hearing on the FEIR and project.  I take full responsibility for any errors and will correct such in future e-Alert update on Crude by Rail.


1.  The staff and environmental consultants will estimate the work needed to respond to all the comments on both the original draft EIR and the RDEIR and advise the applicant.  If applicant agrees to proceed, the responses will be in the Final Environmental Impact Report  for consideration by the Planning Commission.

Or the applicant could appeal the staff decision.  I believe the appeal would be heard by the Planning Commission.  If they agreed with staff, the applicant could appeal to Council seeking relief from the staff and PC decision.  There would be no work done until the appeal is heard or the applicant agrees to fund the response document.  Read further for other permutations of further “delay”.

2.  If applicant agrees to proceed, the responses will be in the Final Environmental Impact Report  for consideration by the Planning Commission.

The public can comment at the Planning Commission FEIR hearing or in writing prior to the public hearing.  Generally, good practice is  staff (consultants) respond at the FEIR hearing which can be verbal or the item can be continued for written response though technically this is not like the draft EIR process.

Staff, consultants and outside attorney would prepare findings to be considered by the Planning Commission.  In the past for other projects the city sometimes has provided both possibilities for findings:  findings that the FEIR is adequate or findings that it is not.  The Planning Commission can find the FEIR adequate to decide on the project.  The Planning Commission could find that the FEIR is an adequate – though not a perfect assessment of the physical effects on the environment – and approve or deny the project.

The Planning Commission could find that the FEIR is not adequate for a decision to approve or deny.

Conventional wisdom is that either decision would be appealed.

3.  There can be an appeal at any step described above including decisions by staff and Planning Commission.  Appeals of staff go to the Planning Commission and their decision can be appealed to the City Council.  If any appeal moves forward, the City Council would have public hearing on any of the staff decisions and/or Planning Commission regarding the FEIR and the project.  The City Council could uphold the decisions of the staff and/or Planning Commission as in scenario #2 or not.

Depending on these actions and decisions there could be legal action.  Until legally decided, there would be no work done to advance the project process and staff time and effort would be to respond to legal action.

5.  Some experts and written opinions from the federal Surface Transportation Board and some legal opinions assert that if the California Environmental Quality Act (CEQA) causes undue delay in rail transportation, that the feds could act preemptively and “overrule” CEQA.  Others suggest that that does not apply to local land use permits.  Others may have more information on how this process would work.

6.  City Council could certify the FEIR and deny or approve the project.  Conventional wisdom is that there would be a lawsuit challenging the decision based on CEQA and local permitting process.  The city is indemnified by the agreement with the applicant, meaning the applicant pays for all legal defense.  Some lead agencies hire the defense attorneys and the applicant pays for the defense.  Other lead agencies have been known to let the applicant choose the attorneys and pay directly for the defense.  The city is the lead agency.

7.  The applicant chooses not to pay for the defense of the CEQA document and land use permit law suit.  City stops the processing and defense.  There is a time factor involved in CEQA lawsuits.

The best place to get accurate current information on the process is with staff.  To get started, click here.  Another source is the Benicia Independent which is editorially opposed to the Crude by Rail project and selective about letters but does provide links that are easier to access.  It is also a comprehensive source of current news.  There is no comparable site in favor of Crude by Rail.  Stay tune for developments in this area.

An Ethical Case Against Valero Crude By Rail

By Roger D. Straw, Benicia Herald Editor
October 30, 2015

Roger D. StrawIn June of 2013, I wrote a guest opinion for the Benicia Herald, “Do Benicians want tar-sands oil brought here?” I had just learned that the City of Benicia staff was proposing to give Valero Refinery a quick and easy pass to begin construction of an offloading rack for oil trains carrying “North American crude.” Valero was seeking permission to begin bringing in two 50-car Union Pacific trains every day, filled with a crude oil. Valero and the City would not disclose where the oil was coming from, but everyone knew of the boom in production in Canada (tar-sands crude) and North Dakota (Bakken crude).

At that time, my most pressing concern was that Benicia, my home town, not be the cause of destruction elsewhere. Tar-sands oil strip mining is the dirtiest, most energy-intensive and environmentally destructive oil production method in the world. It struck me then, and it still does, as a moral issue. Our beautiful small City on the Carquinez has a conscience. We have a global awareness and a responsibility to all who live uprail of our fair city. Our decisions have consequences beyond our border.

My article, and my conscience-driven concern, came BEFORE the massive and deadly oil train explosion in Lac-Mégantic, Quebec. That wreck and the many horrific explosions that followed involving Bakken crude oil and tar-sands “dilbit” (diluted bitumen) became the sad poster children of a movement to STOP crude by rail. It became all too easy for Benicians to base our opposition on a very legitimate self-protective fear. Not here. Not in our back yard. No explosions in OUR Industrial Park, in our town, on our pristine bit of coastal waters.

But fear mustn’t deaden our heart.

I was encouraged to read in the City’s recent Revised Draft EIR, that the document would analyze environmental impacts all the way to the train’s point of origin, including North Dakota and Canada:

“In response to requests made in comments on the DEIR, the City is issuing this Revised DEIR for public input to consider potential impacts that could occur “uprail” of Roseville, California (i.e., between a crude oil train’s point of origin and the California State border, and from the border to Roseville) and to supplement the DEIR’s evaluation of the potential consequences of upsets or accidents involving crude oil trains based on new information that has become available since the DEIR was published.” [emphasis added]

Sadly, the City’s consultants never made good on their intention. Our moral obligation to those uprail of Benicia extends, according to the consultants, to our neighbors in Fairfield, Vacaville, Davis, Sacramento, Roseville and to the good folks and mountain treasures beyond, but ONLY TO CALIFORNIA’S BORDER. What happens at the source, in Canada where boreal forests and humans and wildlife are dying; what happens in North Dakota where the night is now lit and the earth is polluted wholesale with oil fracking machinery – what happens there is of no concern to Benicians. Too far away to care. Their air, their land, their water is not our air, land and water. Evidently, according to our highly paid consultants, this is not, after all, one planet.

Or is it?

Our Planning Commissioners have more than a civic duty. They and we are called morally and ethically to understand our larger role in climate change and to protect the earth and its inhabitants. Our decision has consequences.

Together, we can STOP crude by rail.

Expert letters pouring in, critical of Valero Crude by Rail

The following hugely significant letters were sent to the City of Benicia today, just ahead of its 5pm deadline for public comments on Valero’s Revised Draft EIR.

A flurry of exceptional – and very personal – letters opposing Valero Crude By Rail

[Editor:  Below are a few recent letters opposing Valero Crude By Rail, each exceptional and highly personal in its approach (by Rob Peters, Sue Kibbe, David Jenkins, Elizabeth Lasensky and Ruby Wallis).  For more, see Project Review.  – RS]

Rob Peters, Benicia, October 24, 2015, published in the Benicia Herald on October 27, 2015:

Ms. Amy Million:

I’m no scientist — and couldn’t add anything more to the data-fueled reasons and measurable metrics as to why this singular gamble from Valero Inc. is too dangerous, defiant and inimical to the town we have all worked in, shopped, played, bragged about and raised families in.  Benicia is indeed a special jewel of a town that simply should not be in competition with other towns that seem so wedded to heavy industrial output that they soon become known and degraded primarily for that association:    That simply is not the image, future and profile that Benicians could possibly want. Nor, on balance, is it a healthy, sustainable economic image for a town.

A few observations:  We are in the midst of a flat, receding marketplace for petroleum products world wide;  who would refuse to cringe when contemplating the inevitable growth of land, sea and air-borne pollutants and toxics and the enormous 24-7 risks inherent in shipping such combustible, toxic substances through both our town and our many neighboring communities; and whenever we hear the crackled cough of a youngster or an elder who has asthma, we can afford to take Valero’s proposal in a civil way — but not at all in a serious way.   Theirs is merely a cheap, ugly and unproven method to fatten their monetary output — benefiting a sliver of higher ups in the Texan conglomerate — while putting all of us, our visitors, schools, parks and businesses and our neighbors along the route — in permanent fear and disgust over their crude-oil fantasy trains.

I encourage you to utilize your considerable depth and breadth of knowledge of our town and its peoples, and hope you vote to refuse adoption of the Valero scheme; and rather, vote to safeguard the entire population of this town, young and old, and those populations adjacent to us.

Rob Peters, Benicia, CA.

Sue Kibbe, Benicia, October 23, 2015, yet to be posted on the City website:

To: Benicia Planning Commission

Re. RDEIR for Valero Benicia Crude-by-Rail Project

As Grant Cooke said, “There is no historical basis to assume there will be no accident.” (September 29, 2015, Planning Commission public hearing)

Double negatives give me pause, but this is so perfectly obvious. There will be accidents, always have been and always will be. Regardless of risk projections, reinforced tank cars, speed limits, track inspections and all good intentions — there will be human error, mechanical failure, bad weather, bad timing, bad luck, rock slides, earthquakes, wear and tear of tracks and trestles never built to carry 7,150 tons twice a day, day after day, year after year. There is the danger posed by “Local Safety Hazard Sites” along the proposed rail routes, with high frequencies of derailments. And there is any combination of these factors that can result in fire, destruction, air and habitat contamination, loss of life.

Not to suggest that we be paralyzed by fear of accidents, just that we acknowledge and weigh the risks against the benefits. So, are there any benefits to the city and citizens of Benicia?

Not to any business in the Industrial Park, where 730 trains per year will be spewing pollution — NOx and carbon monoxide and  particulate matter — directly within the euphemistically named “Park.” Where 8.3-minute estimated delays in traffic will be every-day, four-times-a-day aggravations. Where the risk of working in the Blast Zone will be highest. The Industrial Park, the “engine of Benicia,” will find it difficult to attract and keep businesses and workers.

Certainly not to the homeowners of Benicia, who will see their property values decrease and their air pollution increase. Mark DeSaulnier (U.S. House of Representatives for Contra Costa County and a former member of the California Air Resources Board) recently wrote in the San Francisco Chronicle: “California already has the worst air quality in the nation, with 7,200 deaths a year associated with air pollution.”

There are no benefits to up-rail communities, nor to wildlife, sensitive habitats, wetlands, water resources — essentially, the environment in all its natural beauty and diversity — as the RDEIR clearly documents. The negative impacts are, without exception, “Significant and unavoidable,” with no mitigation available. CEQA’s thresholds for greenhouse gas precursors (NOx) are exceeded in every up-rail county; this is illegal, unacceptable and unconscionable.

To deliberately disregard and violate California’s air quality regulations is to endanger our neighbors to the north and bring shame upon our fair city. From these findings, it would appear that the RDEIR cuts a clear pathway to rejection of Valero’s crude-by-rail project.

But not so fast. . . Valero contends that CEQA is preempted by sacrosanct interstate commerce and the federal government, specifically by the Interstate Commerce Commission Termination Act of 1995: “. . . even if the City attempted to control railroad activity by controlling the Valero facility, such effort would be preempted” (Appendix H-5). So has this DEIR been undertaken under false pretenses right from the start, merely to give the illusion of environmental concern?

I find it hypocritical that Valero selectively applies CEQA thresholds to this project when it is to the refinery’s benefit. In calculating the air quality impact in the BAAQMD — the huge area surrounding the entire SF Bay, encompassing Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, Napa and southern Solano and Sonoma counties — Valero touts the “improvements” to air quality from the reduction in marine vessels traversing the Bay. As I described in my letter regarding the DEIR (August 13, 2014), this is a completely deceptive manipulation of the numbers. By reducing emissions in the vast BAAQMD, Valero can increase by 18,433 metric tons per year the emissions right here in Benicia. The selective use of CEQA should not be ignored — abiding by the law when it allows the project to proceed with mitigation, but disavowing CEQA when air quality will be significantly degraded, with no available mitigation.

It is time for a moratorium on crude-by-rail in California. The cumulative impact of these hazardous rail shipments, the increase in greenhouse gases and pollution, and the violation of CEQA standards must be assessed by the state, not in piecemeal fashion from one refinery to the next. If the ICCTA (enacted long before crude-by-rail was a national safety concern) is invoked by Valero, the question of crude-by-rail through California should go to the Attorney General’s office and the courts, as the repercussions are far reaching for the entire state and go beyond the boundaries and purview of our small, still lovely city by the Bay.

Finally, we cannot pretend that we are not participants in the devastation of the boreal forests of Alberta and the farmland of North Dakota if we allow crude-by-rail to continue.  I ask that you view the attached aerial photographs to understand the impact that crude oil extraction has on North America. And I close with another quotation, this regarding global climate change, from the 2015 encyclical of Pope Francis:

“We know that technology based on the use of highly polluting fossil fuels needs to be progressively replaced without delay. . . The natural environment is a collective good, the patrimony of all humanity and the responsibility of everyone. . . Many things have to change course, but it is we human beings above all who need to change. We lack an awareness of our common origin, of our mutual belonging and of a future to be shared with everyone.”

Thank you,
Sue Kibbe, Benicia

David Jenkins, Benicia Industrial Park business owner, October 21, 2015, posted on the City’s website:

Dear Mrs. Million,

I am writing to express deep concern over Valera’s proposed oil train offloading facility in Benicia.  According to the EIR, this project would create several “significant and unavoidable impacts” that could devastate our community.

Bringing oil trains into Benicia will create unacceptable increases in toxic air pollution for communities all along the rail route and near the refinery. The EIR identifies several significant and unavoidable air impacts from toxins and known carcinogens including increased pollution from NOx, sulfur dioxide, PM 2.5, and benzene.

According to the EIR, the cumulative risk of spills, explosions, and fires along the UPRR mainline “and the storage yard would be significant for all of the tank car designs,” including the not-yet-built DOT-117 cars. Such a disaster could result in significant loss of life, long-term economic loss, and contamination of our precious wetlands and waterways. This level of risk is also unacceptable.

The exhibit attached clearly indicates a un avoidable risk to the property I own and operate as a truck rental and service facility , to the extent of making my property worthless for re-sale at a future time .This unconceivable risk causes my real estate to be perhaps un-useable due to a risk of being incinerated should the worst case scenario take place.

The EIR also assumes the “worst case” scenario is a spill of 8 tanker cars, or about 240,000 gallons. The train that incinerated Lac-Megantic, Quebec in July 2013 spilled over 1.6 million gallons of crude, or about 60 tanker cars. The EIR must assume a worst case scenario that reflects existing data on recent spills. Without an accurate worst case scenario analysis, this project can not be approved.

The revised EIR identifies “significant and unavoidable” climate impacts that conflict with California’s existing climate law mandating the state move to an 80% reduction of greenhouse gas by 2050. At a time when wildfires are raging and the drought is more dire than ever, it is imperative we invest in safe, clean energy rather than extreme oil infrastructure.

For all these reasons, I respectfully urge the Planning Commission and City Council to not certify this EIR and reject Valero’s proposed oil train terminal in Benicia.

David Jenkins
Nor Cal truck Sales and Rental, Benicia

Elizabeth Lasensky, Davis CA, October 20, 2015, posted on the City’s website:

Dear Ms. Million:

Regarding the Valerio Refinery request for bringing oil trains into Benicia, please add the following comment to the public record:

The Valerio Refinery project will create relatively few jobs. Yet those jobs are being held up as a reason to support the refinery’s request to bring oil trains along thousands of miles of tracks from their origins in North Dakota to the City of Benicia. Could the City of Benicia please explain why those relatively few jobs are so important and the jobs, health and lives of all the people who live, go to school, play and work along the thousands of miles of tracks are worth so little?  Those of us uprail from the project will not see the benefits of those jobs but millions of us – and the environment- carry the risk.

Thank you,
Elizabeth Lasensky, Davis CA

Ruby Wallis, Benicia, October 17, 2015, posted on the City’s website:

Dear Amy…. I DO NOT WANT THOSE DANGEROUS TOXIC OIL TRAINS IN BENICIA. And also that crap being refined in Benicia. I have worked at Valero Refinery as a pipe welder. I know they don’t fix anything until something goes wrong. It’s all about the money. And also, Valero never hires local union  members. They would rather hire contractors from out of state. Haven’t you noticed the out of state welding rigs that drive around town with license plates from Texas OK, and Oregon? I always talk to them. They take the money and drive back to the
states they’re from.

I know a friend who worked at Valero when it was built. He told me that he is surprised it hasn’t blow up yet!!!! It’s an accident waiting to happen!! WHY SUBJECT THE PEOPLE TO WORSE AIR ETC.? The people of Benicia do not want this crap!!!


Listen to the people Amy, and not Valero!!

Ruby Wallis
Retired pipe welder