Tag Archives: Revised Draft EIR (RDEIR)

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.

Over 700 letters received by the City of Benicia – keep them coming!

By Roger Straw, Benicia Independent Editor, October 20, 2015

City publishes new letters in 4 Parts

The City of Benicia published a monster of new public comments today, approximately 720 letters, mostly opposing crude by rail.  See below.

Note: The City of Albany documents in Part 1 are especially strong, including a recommendation to “reconsider” and a strongly worded multi-page resolution opposing crude by rail.

  • Public Comments October 10- October 16, 2015 Part 1
    8.5MB, 200 pages, including the index to Parts 1-4, and important letters by the Shasta County Air Quality Management District (p. 18), the City of Albany, CA (p. 19), and the City of Biggs, CA (p. 25, note Biggs NOT Briggs, CA)
    Public Comments October 10- October 16, 2015 Part 2
    9.5MB, 230 pages
    Public Comments October 10- October 16, 2015 Part 3
    9.7MB, 235 pages
    Public Comments October 10- October 16, 2015 Part 4 
    6.0MB, 106 pages.
    NOTE:  These pages do not make it easy to find a letter from a particular individual.  The only “index” provided is at the beginning of Part 1, and it does not show page numbers or Part numbers.   You will have to SEARCH on a name in Part 1, then guess in which Part that person’s letter will appear.  You may approximate like this: the index of commenters’ names comprises the first 17 pages of Part 1.  If your commenter’s name appears on page 1-4 of the index (top of Part 1), then the letter is likely lower in Part 1.  Pages 5-9 in the index show names of commenters whose letters mostly appear in Part 2.  Pages 10-14 of the index refer to letters in Part 3.  The remainder, pages 15-17 in the index, are in Part 4.
  • Public Comments October 3-9, 2015
    The link will download a 20-page document from the City’s website, a 1.1MB download, including a very interesting letter from the City of Gridley, California (pp. 2-5 in the PDF).
  • Public Comments September 26-October 2, 2015
    The link will download a 297-page document from the City’s website, an 11MB download.  Most of this is letters generated by the ForestEthics online comment generator.   (See also the Center for Biological Diversity online letter generator.)  Such support from EVERYWHERE is amazing and welcome!  To find individual letters of support or opposition, just open the PDF and search on a name.
  • Public Comments August 31-September 25, 2015A 545-page PDF.  The link will download a document on the City’s website, a 20mb download.  The PDF consists of:
    • 2 agency requests for extension of the comment period
    • 6 personal letters opposing the RDEIR and Valero’s proposal
    • 2 personal letters supporting the RDEIR and Valero
    • 253 letters from individuals from all over the country, generated by an online submittal form and mostly alike, also opposing the RDEIR and Valero’s proposal and received by the City on 9/25/
Comments still welcome

Your comments are encouraged and welcome until 5pm on Friday, October 30, 2015.  Send your thoughts to Amy Million, Principal Planner, Benicia Community Development Department, by email: amillion@ci.benicia.ca.us.  You may also send your letter to Amy Million by mail: 250 East L Street, Benicia, CA 94510, or by Fax: (707) 747-1637.

More information: HOW to write the City…