By Roger Straw, The Benicia Independent, December 18, 2015
Latest: Valero Crude By Rail FINAL Environmental Impact Report likely to be released early January
During staff comments at the conclusion of the December 10, 2015 meeting of the Benicia Planning Commission, Principal Planner Amy Million offered an update on the Valero Crude By Rail proposal.
Currently, the City’s consultants are preparing the Final Draft of the Environmental Impact Report (FEIR), including responses to public comments.
Ms. Million reported that staff had hoped the FEIR would be completed by end of this year, but that it looks like it will be another week or two into January before it is released.
According to Million, “No date has been set for the FEIR/Use Permit,” but she confirms that there will NOT be public hearings on the project at the Commission’s January 14 meeting.
That said, the law allows a MINIMUM of only 10 days between release of the document and a public hearing and decision. Million is on record saying the City will provide “more than that.”
At any rate, I am guessing that we should be ready for hearings in early February, March at the latest if there are no unexpected delays.
The issue: Bay Area city can’t see past its own back yard on refinery project
The city of Benicia — the only entity capable of exerting any control over the crude-oil shipments set to arrive at a planned expansion of a Valero oil terminal — has shown in a draft environmental impact report that any impact the terminal has on communities farther up the train tracks is none of its business.
THE PROPOSED project would allow Valero to transport crude oil to its Benicia refinery on two 50-car freight trains daily on Union Pacific tracks that come right through Davis, Dixon, Fairfield and Suisun City on their way to Benicia. The rail shipments would replace up to 70,000 barrels per day of crude oil currently transported to the refinery by ship, according to city documents.
The original draft EIR, released in 2014, didn’t adequately address safety and environmental concerns. Local governments — including the city of Davis, Yolo County and the Sacramento Area Council of Governments — weighed in on the draft, urging Benicia to take a second look.
Benicia withdrew the draft and went back to work, and the new document acknowledges the risks of pollution, noise and, oh yes, catastrophic explosions from oil trains, the likes of which leveled Lac-Mégantic, Quebec, in 2013.
Disappointingly, having recognized the issues involved, the report simply says there’s no way to mitigate them and recommends moving ahead. With a bureaucratic shrug of the shoulders, the concerns of communities from Roseville to Suisun City are dismissed.
NATURALLY, SACOG disagrees, and so do we. While it’s true that there’s not a lot Benicia can do itself to mitigate the impact of its project, it can force Valero to do something about it.
SACOG urges a raft of measures that are within Valero’s control: advanced notification to local emergency personnel of all shipments, limits on storage of crude-oil tanks in urban areas, funding to train emergency responders, cars with electronically controlled pneumatic brakes, money for rail-safety improvements, implementation of Positive Train Control protocols and, most importantly, a prohibition on shipments of unstabilized crude oil that hasn’t been stripped of the volatile elements that made Lac-Mégantic and other derailments so catastrophic.
Due to federal laws, cities along the railway lines have no ability to control what goes through. Only Benicia, now, while the project is still on the drawing board, has the authority to set reasonable limits and conditions on a project that puts millions of people along the railroad in harm’s way.
We urge the Benicia City Council to use its discretionary authority in this matter to protect those of us who have no say in the process.
Safety still a primary concern with Valero rail transport plan
By Kevin W. Green, November 07, 2015
The Valero oil refinery operates, Friday, Sept. 25, 2015, in Benicia. (Steve Reczkowski/Daily Republic file)
FAIRFIELD — Most of those who provided formal comments on the revised draft environmental impact report for the Valero crude-by-rail project in Benicia focused on a need for increased safety and possible mitigation measures.
The city of Benicia Planning Department received plenty of input leading up to last week’s deadline for submitting written comments on the revised report.
The proposed project would allow Valero to transport crude oil to its Benicia refinery on two 50-car freight trains daily on Union Pacific tracks that come right through downtown Davis on their way to Benicia. The trains also pass through Dixon, Fairfield and Suisun City.
The rail shipments would replace up to 70,000 barrels per day of crude oil currently transported to the refinery by ship, according to city documents. The Valero refinery would continue to receive crude by pipeline, the city said.
Among the written comments submitted on the revised impact report was an eight-page response from the Sacramento Area Council of Governments. The agency responded on behalf of the 22 cities and six counties in its jurisdiction, including the city of Davis and Yolo County.
“Our earlier letter expressed grave concern that the DEIR concluded that crude oil shipments by rail pose no ‘significant hazard’ to our communities, and we urged the city of Benicia to revise the DEIR to fully inform decision-makers and the public of the potential risks of the project,” SACOG said in its remarks.
The agency’s response included a list of eight measures its board of directors indicated that, at a minimum, should be followed.
Those directives include advance notification to county and city emergency operations offices of all crude oil shipments; limits on storage of crude oil tank cars in urbanized areas of any size; and appropriate security for all shipments.
Other directives outlined need for support, including full-cost funding for training and outfitting emergency response crews; and use of freight cars with electronically controlled pneumatic brakes, rollover protection and other features that mitigate what the agency believes are the risks associated with crude oil shipments.
Finally, the agency calls for the implementation of Positive Train Control to prioritize areas with crude oil shipments.
Solano County Resource Management Director Bill Emlen, a former Davis city manager, noted in his response that he had no specific comment on the revised report, but that the county stands behind its initial remarks about the original draft report.
In those remarks, dated Sept. 8, 2014, Emlen said the county wanted more done to address potential derailments.
The original draft EIR admitted the project “could pose significant hazard to the public or the environment,” but minimized the chances of that happening.
“Although the consequences of such a release are potentially severe, the likelihood of such a release is very low,” the report said.
Emlen disagreed that the accident risks associated with the crude-by-rail proposal are “less than significant” without mitigation.
Valero plans to use a type of tank car designated as CPC-1232 to transport oil between Roseville and Benicia and there will be a 40 mph speed limit through federally designated “high-threat urban areas,” including cities along the route, according to the draft report.
Emlen said it appears Valero’s use of the CPC-1232 tank cars is voluntary, rather than mandatory. He also pointed out that the federal designation for high-threat urban areas extends only 10 miles east of Vallejo and 10 miles west of Sacramento, which leaves out most of Solano County.
Emlen cited a derailment and spill that took place in Virginia with a train using CPC-1232 tank cars and traveling 23 mph.
“Therefore, the use of CPC-1232 tank cars at low speeds does not alone mitigate the potential impact from a train derailment,” he said.
Other cities that submitted a written response on the revised draft included Davis, Albany, Gridley and Briggs. Other counties that responded included Yolo, Placer and Nevada counties.
An original draft EIR was issued for the project in June 2014. Benicia said it issued the revised draft EIR in response to requests made in that original report. The city released the revised document Aug. 31 for a 45-day review period. It later extended the deadline for submitting written comments from Oct. 16 to Oct. 30.
The Benicia Planning Commission also gathered public input on the revised document at a Sept. 29 meeting.
The Valero project involves the installation of a new railcar unloading rack, rail track spurs, pumps, pipeline and associated infrastructure at the refinery, according to a city report. The crude would originate at sites in North America.
Union Pacific Railroad would transport it using existing rail lines to Roseville, and from there to the refinery, the city said.
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.
Scenarios:
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.
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