Tag Archives: Valero Benicia Refinery

Benicia Mayor responds: Staying the course on public health, safety, welfare

Repost from The Benicia Herald
[Editor:  Benicia’s Mayor Elizabeth Patterson responds that she will stand firm “with zeal, diligence and fidelity to the public interest.”  It would take a book-length treatise to document the near countless ways in which Mayor Patterson has helped move Benicia to embrace a sustainable identity and future.  It would take another book to document the constant drumbeat of opposition she has endured since her campaign for re-election in 2011.  Someone should write those books!  – RS]

Elizabeth Patterson: Staying the course on public health, safety, welfare

November 28, 2014 by Elizabeth Patterson
Benicia Mayor Elizabeth Patterson
Benicia Mayor Elizabeth Patterson

I WOULD LIKE TO RESPOND TO A COUPLE OF recent letters commenting about our city attorney that were published in The Benicia Herald. I personally prefer people to focus on issues and not staff. It should not be about staff, since they work for the City Council.

What was noted in one letter in defense of the city attorney was, in my experience, the extraordinary, passionate and lengthy defense of the city attorney by Vice Mayor Tom Campbell. Keep in mind the issue at hand is my so-called “biased” conflict of interest based on the E-Alerts I send. It is a difficult position for staff when one Council member questions another. Where do you draw the line? What is in the best interest of the city?

Most of my E-Alerts are about community goings-on, events, meeting notices and issues of public interest and concern. I send these e-Alerts when my workload and time allow. The following is what I always have printed at the foot of my E-Alert:

“This site is my responsibility and my discretion including recipients and material. Requests for posting are honored and I encourage readers to share information. An informed society is essential. Material on this site is my personal domain and does not reflect official city policy. Posting material on this site does not indicate bias for future decision making. Use of words and terminology, notice about events, forums and public concerns is not dicta nor determinative for future decisions. The more sunshine on issues, events, happenings and concerns, the better the public is aware of choices so that government is open and accessible to all and not just the few. Public discourse is the path to fair and informed decisions.”

As my attorney has written, “(W)e understand that you have acted in accordance with this statement, and we have not reviewed any email alerts or other communications which suggest otherwise.”

What differs from my attorney’s information and the city attorney’s outside counsel, Mike Jenkins, is that only select emails were sent to Jenkins while my attorney received multiple batches of complete past E-Alerts as well as all current ones. As my attorney wrote, “(Y)ou have requested our guidance on the laws which apply to you as a public official in California with respect to this matter and similar matters which may come before the city in the future. Our firm has many years of experience and expertise with respect to conflict-of-interest issues for public officials in California.

“As mayor, you have taken a leadership role on providing information to the city residents, and speaking out on the health and safety issues raised by the proposal to increase the (Valero crude-by-rail) train deliveries.

“In summary, based on our review of the facts, it is our opinion that you do not have a disqualifying conflict of interest in the Valero matter based on the Political Reform Act (Gov. Code section 81000, et seq.) which is the primary set of statutes governing public official conflicts of interest and which covers financial conflicts of interest. In addition, since the matter does not involve a contract with the city, Government Code section 1090 does not apply.”

My attorney’s opinion discussed the court decisions holding that public officers must exercise their powers with “disinterested skill, zeal, and diligence and primarily for the benefit of the public,” and that “fidelity to the public interest is the primary purpose of conflict of interest laws.” Indeed, public officers are obliged to fulfill their responsibilities with both honesty and loyalty. If they are influenced by any “base and improper considerations” of personal advantage, they violate their oaths of office.

Jenkins’s opinion cited numerous appellate cases about elected officials having personal reasons for acting toward a city employee and other personnel and contract matters of an elected official. These cases are not on point in my case. My E-Alerts are informing the public about issues affecting public health, safety and welfare.

Jenkins cites another case involving a court holding that a planning commissioner was “biased.” This case is distinguished from the Fairfield case because a) it involves an appointed official, not an elected one; and b) the commissioner actually wrote an argument against a project before it came before the elected body.

The California Supreme Court wrote in the Fairfield decision that “(t)hese topics are matters of concern to the civic-minded people of the community, who will naturally exchange views and opinions. . . . A councilman (sic) has not only a right but an obligation to discuss issues of vital concern with his constituents and to state his views of public importance.” The Fairfield decision has not been overturned or revised by the court and remains the law applicable in similar circumstances.

Because my interest is to provide the public information about vital public health, safety and welfare issues, I send, without expressing an opinion on a specific project, information about relevant meetings, including public and quasi-public (Valero) issues and news regarding national, regional and local issues.

Therefore, I will rely on the advice of my attorney, to wit: “Your current course as spelled out in the statement included on your email alerts . . . is certainly consistent with both (court) decisions and prudent under all of the circumstances. Accordingly, we would advise you to stay your current course of engaging in the exchange of information and discussion of the issues and supporting the process for public education and engagement on the issues while avoiding any specific statements of opposition to the pending permit decision and keeping an even-handed approach to your interactions with the public and all others involved in the matter.”

With zeal, diligence and fidelity to the public interest, Elizabeth Patterson

Elizabeth Patterson is the mayor of Benicia.

What does a Central Coast oil refinery have to do with Davis?

Repost from The Davis Enterprise

What does a Central Coast oil refinery have to do with Davis?

By Dave Ryan, November 23, 2014

In communities up and down the West Coast, groups of environmentalists, neighbors and local governments are doing whatever they can to mitigate or outright stop railroad terminals being built at coastal refineries at the end of rail lines that cut through cities and sensitive environmental areas.

Davis residents joined the fight earlier this year against the Valero oil refinery in Benicia, and now are adding their voices to a chorus opposing a Phillips 66 facility in San Luis Obispo County.

A local collection of environmental watchdogs called the Yolano Climate Action Group was one of the first to realize the potential public safety threat of Bakken crude oil trains traveling from out of state, through Roseville, Davis and to Benicia.

The group successfully petitioned the city of Davis Natural Resources Commission in January to oppose the Valero project. The commission then was successful in persuading the City Council a few months later to begin monitoring the project and round up support from government agencies like Yolo County and the Sacramento Area Council of Governments to lobby Benicia for a more complete environmental impact report.

“It was Davis that alerted the entire region,” said Lynne Nittler, a coordinator for the Yolano Climate Action Group.

Meanwhile, Davis’ state and federal representatives have been doing what they can, within the limits of strong federal pre-emption laws for railroads.

Trains carrying the hazardous materials have derailed and exploded in recent years, most notably in Lac-Mégantic, Quebec, where a July 6, 2013, derailment caused a fire and wiped out a portion of the town, killing 47 people and forcing 2,000 others to flee. A subsequent derailment and explosion just outside Casselton, N.D., in January also alarmed the public.

If the Valero refinery railroad terminal is built at Benicia, Davis would see trains estimated to be 100 cars long filled with volatile Bakken shale crude oil traveling straight through downtown along the same route the Amtrak Capital Corridor uses to carry commuters.

Phillips 66 terminal

But Davis faces another possible threat, as well.

Far to the south and west of Davis are the Central California coast communities of San Luis Obispo County, housing the Phillips 66 oil refinery near the Nipomo Mesa and — potentially — another rail terminal.

That terminal would attract more trains filled with Canadian tar sands crude oil, traveling through Roseville, Davis, Oakland, San Jose and Salinas to Phillips 66. While somewhat less volatile than Bakken shale crude, tar sands crude is mixed with chemical thinners that make it potentially explosive.

Laurence Shinderman leads an activist group in Nipomo opposing the Phillips 66 railroad terminal called the Mesa Refinery Watch Group. The group’s ranks swelled from a handful in recent months to 250 residents spearheading a letter-writing campaign targeting the San Luis Obispo County Board of Supervisors.

The county is leading the environmental review process for the railroad terminal. Yolano Climate Action Group, the city of Davis and SACOG have submitted their concerns, as well.

Shinderman said Nittler has been helping from the start, giving advice to the Mesa Refinery Watch Group.

The mission among the Davis group is to get people to go from NIMBY to NOPE, or from saying, “Not In My Back Yard” to “Not On Planet Earth,” Nittler said.

It represents a shift in thinking from opposing a particular project to a wider understanding of what environmentalists consider a dangerous trend of oil by rail along the West Coast.

In San Luis Obispo County, the rail line that would carry the oil runs through the Cal Poly SLO campus and over a bridge adjacent to a county drinking water treatment facility.

“The reality is there is human error, there are guys who are going to fall asleep at the switch,” Shinderman said. “You can’t mitigate for human error. The railroad is hiding behind the skirt of federal pre-emption and saying, “Ah, you can’t do anything.’ ”

Federal protection

Under federal code, any laws governing railroads must be uniform across the country, “to the extent practicable.”

That forbids the vast majority of local tinkering, but a small “savings clause” says a state may regulate some railroad activity provided the situation is geared at a local, but not statewide, safety hazard; is not in conflict with federal law; and does not “unreasonably” restrict railroad commerce.

The party claiming federal pre-emption has the burden of proof in any case.

In the matter of the railroad terminals, local cities and counties are ostensibly in charge of the approval — or disapproval — of the projects.

Even there, federal law may give the oil companies and the railroads a recourse in court if the terminals aren’t built.

According to the Association of  American Railroads, rail safety is a top priority. In accordance with a 2014 emergency order from the federal Department of Transportation, rail companies are required to notify state emergency response agencies about the routes of trains carrying large amounts of Bakken crude.

The association also notes that railroads train thousands of first responders, including using a $5 million specialized crude-by-rail training and a tuition assistance program, which is estimated to serve 1,500 first responders in 2014.

“If an incident occurs, railroads swiftly implement well-practiced emergency response plans and work closely with first responders to help minimize injuries or damage,” reads a position statement on the association’s website.

The association said the industry is also advocating for safer rail cars that are less prone to disaster. The association claims that in 2013, freight railroads “stepped up the call for even more rigorous standards for tank cars carrying flammable liquids” that included asking that existing tank cars be retrofitted to meet higher standards or be “phased out.”

Nittler said that was a smokescreen, and the federal government does not impose rules the industry doesn’t agree to first.

Even according to AAR, the federal Railroad Safety Advisory Committee that develops safety standards for rail transport uses a “consensus process” to impose new safety standards.

Legislative help

Davis’ Democratic congressman, Rep. John Garamendi, is a member of the House Committee on Transportation and Infrastructure. He said the committee is in the process of crafting new rules for railroads.

“I have and will continue to push them to write the strongest possible guidelines,” Garamendi said in an email.

At the state Capitol, state Sen. Lois Wolk, D-Davis, is part of efforts to pass laws that levy taxes on railroads to provide money for first responders.

“The volume of crude oil being imported into California has increased 100-fold in recent years, and Valero has plans to ship 100 train cars of crude oil per day through the heart of my district to its refinery in Benicia,” Wolk wrote in an email.

“… Currently, local governments along these transport corridors don’t have sufficient funding to protect their communities. When the Legislature reconvenes in January, I will push for funding for developing and maintaining adequate state and local emergency response to accidents and spills involving rail transports of crude oil and other hazardous materials.”

Union Pacific and Burlington Northern Santa Fe railroads filed suit against the state in October, claiming that California or any other state does not have the authority to impose safety requirements on them because federal law already does that.

That may put a damper on a new North Dakota law passed Thursday that requires companies to stabilize the volatility of Bakken crude before shipping it out of the state. Texas already requires such handling.

In the meantime, Nittler is busy trying to drum up support for a letter-writing campaign to the SLO Board of Supervisors before a 4:30 p.m. deadline Monday for comments on its draft environmental review.

“If they don’t build it, they won’t come,” Shinderman said.

Sacramento Bee: Benicia mayor’s public skepticism puts vote on oil trains in jeopardy

Repost from The Sacramento Bee
[Editor: Don’t let the headline put you off – this is the most thorough analysis yet on the controversy in Benicia.  Tony Bizjak does a good job presenting Mayor Patterson’s defense as well as the perspective of those who would silence her.  – RS]

Benicia mayor’s public skepticism puts vote on oil trains in jeopardy

By Tony Bizjak, 11/23/2014
The Valero refinery in Benicia.
The Valero refinery in Benicia. Manny Crisostomo

The hot national debate over crude oil train safety has taken an unusual twist in the Bay Area city of Benicia, where a blunt-talking mayor’s right to free speech is being pitted against an oil company’s right to a fair public hearing.

This summer, amid tense public debate over a Valero Refining Co. proposal to bring crude oil on trains to its Benicia plant, Mayor Elizabeth Patterson revealed that the city attorney had privately advised her that her frequent public comments about oil transport safety could be seen as bias against the Valero project.

The mayor said the city attorney advised her to stop talking about the oil trains and sending out mass emails containing articles and other information, and to recuse herself from voting when it came before the council.

Patterson, a longtime community planner and environmental activist, is refusing to step aside, saying she has a duty to share information with constituents about the city’s pivotal role in the crude oil debate, one of the biggest environmental fights in the state.

The situation in Benicia provides an unfolding civics lesson on the sometimes-surprising legal tightropes cities and public officials must walk when dealing with high-stakes issues. The trains in question would pass twice daily through downtown Sacramento and other Northern California cities en route to the Benicia refinery.

Patterson points out she has never said she would vote against the Valero project and said she hasn’t yet made up her mind. “I am providing information. I am letting people know what is going on,” she said. “We ought to be talking about this.”

But a recent legal analysis, commissioned by Benicia City Attorney Heather McLaughlin and released publicly by the city last week, says Patterson appears to have stepped over a little-known and somewhat fuzzy legal line that could land the city in court.

Valero, the city’s largest employer and owner of a sprawling 45-year-old refinery on a hillside over Suisun Bay, wants to begin receiving two 50-car oil trains a day sometime next year. Valero officials say the shipments will help keep the refinery competitive in a fast-changing oil industry by providing rail access to cheaper oil, instead of marine shipments from Alaska and foreign countries.

The success of the Valero refinery is important to Benicia. The taxes it pays fund nearly a quarter of the city government’s annual operating budget.

But the fast-growing crude-by-rail phenomenon is controversial. Several oil train explosions, including one that killed 47 people in a Canadian town, have prompted federal officials to call for improved safety regulations. The California attorney general and other state safety officials recently challenged Benicia to do a better job of studying the environmental and safety risks of the Valero plan.

Patterson was among the early voices on oil train safety issues, writing an opinion piece in March in a Bay Area newspaper calling on Gov. Jerry Brown to take immediate steps to protect public safety as the trains begin to roll. She also has been sending mass emails to constituents for more than a year with updates on the project, copies of news stories about crude oil issues, and Valero-related matters.

This spring, two council members asked the city attorney to look into whether Patterson was playing too much of an advocacy role. Mark Hughes, a former PG&E executive, and Christina Strawbridge, a business owner, said several constituents had asked them if the mayor’s comments were appropriate. Both told The Sacramento Bee they were not approached by anyone from Valero.

Hughes said the matter is not personal. Speaking at a council meeting last week, he said, “for anyone to think that this was a witch hunt … for bringing it up against the mayor is just wrong. I think the mayor knows that. It clearly was not an attempt to intentionally try to get her to recuse herself; it was an attempt to get some clarification.”

Strawbridge, also speaking at the council meeting, said she put materials together to bring to the city attorney “to find out if the city is in legal harm here because of our mayor and making these kinds of statements … I have had questions about how the mayor could continue to be unbiased in this situation.”

At issue, experts say, are the different legal roles council members play and how they are permitted to act when playing those roles. In California, elected officials can express opinions and advocate for outcomes when they are writing new policies or laws, or deciding how to spend the city budget, municipal law experts say.

But courts have ruled that local elected officials cannot speak out too forcefully prior to holding a hearing and vote on “administrative” or “quasi-judicial” issues, such as voting on a homeowner’s request for a variance or a company’s request for a permit to expand its business.

In those cases, legal experts say, the applicant’s right to have its request heard by an impartial, unbiased board trumps a board member’s right to express their opinion before the formal public hearing.

JoAnne Speers is a former general counsel to the League of California Cities who now teaches leadership ethics at the School of Management at the University of San Francisco. She said case law on the matter can trip up cities and elected officials.

“I feel for the mayor and elected officials generally,” she said. “It seems paradoxical with issues of great importance to their community, if they want to participate in the decision, they are subject to certain constraints.”

The question now in Benicia is whether the mayor’s writings and emails have crossed the legal line.

The attorney hired by Benicia to review Patterson’s public comments, Michael Jenkins of Manhattan Beach, also serves as legal counsel for several California cities. He concluded that a court likely would consider Patterson to have stepped over the line. He noted in his analysis, though, that there are not many court cases to use for guidance, and acknowledged he is offering the city of Benicia conservative advice.

“This is a close case,” Jenkins wrote in his report. “In our opinion, a court likely would find that Mayor Patterson’s oft-expressed skepticism about transportation of crude oil by rail evidences an unacceptable probability of actual bias. The evidence is sufficient to warrant her preclusion from participation in the decision.”

His conclusion was based on 17 of Patterson’s emails and on Patterson’s opinion piece in the San Francisco Chronicle, headlined “Governor must ensure rail tanker safety.” In that piece, she wrote that “crude-by-rail shipments in unsafe tank cars pose imminent danger” to rural communities, and asked, “How would the Suisun Marsh survive a potential spill, explosion and fire?” She did not mention Valero by name, nor did she expressly say she opposes crude-by-rail shipments.

Patterson said she has been sending such e-blasts to constituents for years on city topics. She estimates she has about 500 subscribers. Most of the blasts involve Patterson disseminating published articles, press releases and other people’s comments. One included a story from The Sacramento Bee in which Sacramento leaders accused Benicia of failing to fully acknowledge the risk of spills and fires from the Valero project.

Another email passed along an article about speakers at a meeting organized by project opponents, Jenkins said. Patterson followed that with an email containing a Southern California newspaper editorial disagreeing with Patterson’s Chronicle opinion piece, and accusing her of rushing to judgment on the crude-by-rail issue. Another Patterson email contains a report lauding Valero for its plant safety measures.

In determining that Patterson should not vote on the Valero project, Jenkins cited a 2004 Los Angeles appellate court case as most comparable to the Benicia situation. There, he said, a city planning commissioner wrote an article for his homeowners association expressing concerns that a project would have negative environmental impacts. The commissioner then voted to deny the project. The court ruled that his comments “gave rise to an unacceptable probability of actual bias.”

Patterson’s attorney, Diane Fishburn of Olson Hagel & Fishburn in Sacramento, countered that a 1975 California Supreme Court ruling suggests Patterson is within her rights in speaking her opinion. In that case, involving the city of Fairfield, a developer tried to have the mayor and a councilman barred from voting on his shopping center proposal because the mayor told the developer he was opposed to the project, and the councilman spoke against the project at public meetings.

The court stated that the shopping center project had major ramifications for the city, and that a “councilman has not only a right but an obligation to … state his views on matters of public importance.”

The Fairfield case “is right on point with Elizabeth’s situation,” Fishburn said.

Jenkins cited that Fairfield case, as well, in his report for Benicia, acknowledging it provides support for Patterson’s position. But he pointed out that the court noted that most of the Fairfield council members’ comments came during a political campaign, where, Jenkins said, “candidates should have the freedom to express their views.”

Valero officials did not respond to a request for comment.

Under city rules, the Valero permit request will be voted on by the city Planning Commission, and would only come before the City Council on appeal. If it does, legal experts and city officials say it is up to Patterson to decide whether she should recuse herself.

Patterson said she does not plan to step aside and that she will be able to cast an unbiased vote. “I am going to (continue to) do what I have been doing,” she said. “The challenge here is I have to be scrupulous in weighing the facts before me.”

KPIX: State Senator Says Bay Area Not Prepared For Crude Oil Trains

Repost from 5KPIX TV CBS SF Bay Area
[Editor: apologies for the video’s commercial ad.  You can pass on choosing an ad – the video will begin if you just wait.  – RS]

State Senator Says Bay Area Not Prepared For Crude Oil Trains

Phil Matier talks with state senator Jerry Hill who believes that Bay Area emergency crews are not properly prepared to handle the hundreds of tanker trains bringing shale crude oil from the Dakotas to local refineries. (11/23/14)