Category Archives: Benicia City Council

Benicia City Council, Crude By Rail, Surface Transportation Board, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

ANDRÉS SOTO: Open Letter to Benicia City Council members

By Andrés Soto, March 29, 2016

An Open Letter to Benicia City Councilmembers – About the Surface Transportation Board

Dear Councilmembers:

The bombshell request by Valero at your meeting on March 15, to have you issue a continuance of the Public Hearing of Valero’s appeal of the Benicia Planning Commission’s denial of Valero’s dangerous Crude By Rail project is out of order, without justification and should be denied out right.

Valero seeks a Declaratory Order and a Temporary Retraining Order AGAINST the City of Benicia from the federal Surface Transportation Board because of the lawful decision by the Benicia Planning Commission. Do not fall for this red herring. It is merely a distraction.

I was as stunned as you were to hear this request, and immediately presumed Valero had something up its sleeve that I had not anticipated. But now that I have researched the STB’s authority and activities, and spoken to a staff attorney for the STB itself, I am convinced more than ever that Valero’s request is the wrong question in the wrong forum at the wrong time. It is merely a distraction.

I went to the STB website and identified the agency’s specific duties and jurisdiction. Having read this, I then decided to contact the STB’s Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC). I called the OPAGAC and spoke to a staff attorney, Mr. Gabriel Mayer.

I discussed the possibility of Valero requesting the DO/TRO for its Crude By Rail project. Mr. Meyer informed me that the staff would examine the request, if received, and analyze whether it was an issue the staff or Board would decide, if at all. In any event the STB is not the final authority on federal pre-emption. The state and federal courts serve that purpose.

See below for copies of the STB Overview and ABOUT the Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC). I advise you to research this yourself. Do not rely on staff or the consultants.

“The Surface Transportation Board is an independent adjudicatory and economic-regulatory agency charged by Congress with resolving railroad rate and service disputes and reviewing proposed railroad mergers.”

While the Overview of the STB does identify that “The agency has authority to investigate rail service matters of regional and national significance”, my conversation with Mr. Meyer indicated it is specifically related to rail projects or projects that occur on railroad property, not off rail issues. Mr. Meyer further indicated there are many cases relative to the facts as I presented them to him. He sent me links to an STB decision from a case in Alexandria, VA, and Florida East Coast Ry Co v City of West Palm Beach, also attached.

Mr. Meyer also indicated that since Valero would be making that request, not Union Pacific AND because the project is entirely on Valero property within the City of Benicia’s sole jurisdiction, he could not foresee circumstances in which the STB would issue the DO/TRO.

Surely Valero knows this, so why would Valero even suggest such a ludicrous proposition? On this I will not speculate, but I can foresee what would happen if you DID decide to issue the continuance.

First, you be abrogating your responsibility to defend Benicia’s interest by submitting to a dubious authority to define Benicia’s local land use authority as a favor to a major corporation.

Second, because Valero has clearly lost the hearts and minds of Benicians and the vote of the Planning Commission, forestalling the project decision allows Valero to protect any councilmembers running for office who may be project supporters from the public wrath in November should they approve the project prior to the election.

Third, it sets a dangerous precedent of rewarding applicants who forum shop for an outside agency to exert its will over our community. You are under no obligation to grant this request and do not even need to take a vote on it. A hearing on this request for a continuance would just delay the inevitable – a hearing on the merits of the Valero Dangerous Crude By Rail Project itself. If Valero felt it needed this determination from the STB, it should have done so months ago. Why haven’t they asked California Attorney General Kamala Harris?

For Benicia’s sake, on April 4th, deny the request for a continuance, start public testimony on the project and make the right decision for Benicia’s future health and safety.

Overview of the STB
http://www.stb.dot.gov/stb/about/overview.html

The Surface Transportation Board is an independent adjudicatory and economic-regulatory agency charged by Congress with resolving railroad rate and service disputes and reviewing proposed railroad mergers. 

The agency has jurisdiction over railroad rate and service issues and rail restructuring transactions (mergers, line sales, line construction, and line abandonments); certain trucking company, moving van, and non-contiguous ocean shipping company rate matters; certain intercity passenger bus company structure, financial, and operational matters; and rates and services of certain pipelines not regulated by the Federal Energy Regulatory Commission. The agency has authority to investigate rail service matters of regional and national significance. 

Created on January 1, 1996 by the ICC Termination Act of 1995, the Board is the successor to the former Interstate Commerce Commission (1887-1995) and was administratively aligned with the U.S. Department of Transportation from 1996 to mid-December 2015. The STB Reauthorization Act of 2015 established the STB as a wholly independent federal agency on December 18, 2015.
The STB staff is divided into the following offices.

  • The Office of the General Counsel provides legal advice to the STB and defends agency actions that are challenged in court…
  • The Office of Economics performs three primary functions: data gathering and reporting, economic and policy analysis in support of Board decisions, and applied economic analysis, most notably the development of the STB’s costing system. The Office of Economics audits Class I railroads.
  • The Office of Environmental Analysis is responsible for undertaking environmental reviews of actions proposed before the agency, according to the national Environmental Policy Act and other environmental laws, and making environmental recommendations to the board.
  • The Office of the Managing Director handles agency administrative matters, such as facility, budget, and personnel management.
  • The Office of Proceedings researches and prepares draft decisions.
  • The Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) serves as the public’s point of contact to the STB as well as the agency’s outreach arm. It works with members of Congress, the public and the media to answer questions and provide information about the STB’s procedures, regulations and actions. The office houses the Rail Customer and Public Assistance Program, which provides an informal venue for the private-sector resolution of shipper-railroad disputes, and also assists Board stakeholders seeking guidance in complying with Board decisions and regulations. The office also oversees all aspects of rail operations subject to the agency’s jurisdiction to ensure that such operations are consistent with each carrier’s statutory responsibilities. This office maintains the STB library.

ABOUT the Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC)
http://www.stb.dot.gov/stb/about/office_ocps.html

The Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) serves as the STB’s primary contact point with the public. The office interacts with members of Congress, executive agencies, state and local governments, news media, stakeholders, and other interested persons to provide information and informal guidance as to the STB’s procedures, regulations, and actions. OPAGAC also serves as the agency’s compliance arm, overseeing the actions of transportation carriers subject to the agency’s jurisdiction to ensure that these carriers are operating in compliance with their statutory responsibilities.

Office staff members are thoroughly knowledgeable about the STB and its processes, as well as the operational components of the rail industry. They are available to answer questions about the STB’s official decisions, pending cases, and the laws that we implement. OPAGAC does not provide opinions about how the STB Members will vote on a particular case, or when a case will be decided. 

OPAGAC houses the STB’s Rail Customer and Public Assistance Program. Initiated in 2000, the Program provides an informal venue for the private-sector resolution of shipper-railroad disputes, and also assists Board stakeholders seeking guidance in complying with Board decisions and regulations. At no cost to parties, the Program facilitates communication among the various segments of the rail-transportation industry, and encourages solutions to railroad operational and service issues without the use of litigation or the Board’s formal processes.

Andrés Soto is a member of the Steering Committee of Benicians for a Safe and Healthy Community
Benicia City Council, Crude By Rail, Local Regulation, Public permitting, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

TRANSCRIPT: City Council hearing of March 15

By Roger Straw, March 29, 2016

Benicia, California

Today the City of Benicia posted a written TRANSCRIPT of the City Council’s March 15 meeting.

The document is not indexed, and 389 pages long – but it is searchable text.

Page 43 – Council begins deliberations on Valero’s appeal on page 43 of the PDF with a few procedural questions.

Page 46-68 – A public comment by Karen Berndt arises on page 46.  Council member Tom Campbell raises questions about the process on p. 49 and with one more comment from a member of the public, going through page 58.  After which there are ex parte disclosures, and on page 63, we get to City Planner Amy Million’s introductions and procedural questions, and and FINALLY, on page 68, the STAFF PRESENTATION.

Page 90 – The ESA Consultants’ presentation begins on p. 90.

Page 109-144 – City Attorney McLaughlin introduces and praises Contract Attorney Brad Hogin on page 109, asking everyone to refrain from “abusing” him.  Mr. Hogin begins on page 110.  On page 137, Mr. Hogin begins his review of the San Luis Obispo Phillips 66 oil train project – a review that has since been characterized as misleading and contrary to fact.

Page 144 – On page 144 Ms. Million begins a description of the Appeal process and a defense of staff’s recommendation to overturn the Planning Commission’s unanimous decision.

Page 154 – Planning Commission Chair Donald Dean begins his presentation on page 154.

Page 182 – Planning Director Christina Ratcliffe adds a final staff presentation beginning on page 182, in which she notes the differences between the Planning Commission and staff, and again outlines the Council’s options.

Page 184-201 – Valero’s Don Cuffel begins his presentation at the bottom of page 184.  Valero’s attorney John Flynn begins his remarks on page 194, and concludes with the request to delay procedings on pages 200-201.

Page 201-389 – Council questions begin on page 201, focusing for quite some time on the surprise delay request by Valero.

(It is beyond the scope of this article to index the lengthy question-answer period, which continues to the end of the meeting, on page 389.)

 

Benicia City Council, Benicia Planning Commission, Crude By Rail, Davis CA, Sacramento CA, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

DAVIS & SACRAMENTO: How to participate in Benicia oil train hearings April 4th

From an email by Lynne Nittler, Davis CA, March 26, 2016

Still time to participate in Valero-Benicia Oil Train Decision

YolanoClimateActionCentralAfter three years of study, the Benicia Planning Commission voted not to certify the final EIR and denied the Valero Crude-by-Rail Project on February 11.

This decision came about through the sustained efforts of Benicians for a Healthy and Safe Community with consistent support from individuals in Davis and Sacramento who wrote letters and testified during all the stages of the Environmental Impact Review process.  The involvement of many uprail agencies (7 Air Quality Management Districts, lawyers from Sierra Club, NRDC, Forest Ethics,  Stanford Law Center, the CA Attorney General, etc.) and governmental bodies (City of Davis, Yolo County, Sacramento Area Council of Governments, etc.) were instrumental in the Planning Commissioners decision-making. Many hundreds of pages of written comments were submitted.

Valero appealed the decision to the Benicia City Council.  Public testimony will be on April 4, 6 and 19.

Concerned Davis residents are encouraged to write their specific concerns to the Benicia City Council.  Hints for letter-writing ideas and where to send the letters are found at the website below.

Residents are also invited to reserve a space on the bus heading to Benicia on April 4th.  There will be a pickup at Caffe Italia parking lot at approximately 5:15pm to arrive in Benicia around 6pm.  The bus will leave Benicia at 9pm.  Riders do not need to testify.  We need a large Davis contingent present to show our concern about the prospect of oil trains coming through our downtown.

For more details, read “Update” and “Ride the bus” posted at www.yolanoclimateaction.org  For questions, contact Lynne at lnittler at sbcglobal dot net.

Benicia City Attorney Heather McLaughlin, Benicia City Council, Crude By Rail, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

MARILYN BARDET: Comment at Benicia City Council on 3/22 – Valero’s request for a delay

By Marilyn Bardet, March 22, 2016

Benicia City Council on March 22, public comment – Valero’s request for a delay

Valero’s request for delay in the appeal process to acquire a declaration from STB on the scope of preemption interferes with local politics with far-reaching ramifications.

On March 15th, at the opening hearing of Valero’s appeal of the Planning Commission’s long deliberations and unanimous decisions to deny certification of the FEIR, and to deny the Crude-By-Rail Project a permit for construction, it was very clear that Valero’s attorney John Flynn surprised everybody — our City Staff, and all of you, Mayor and councilmembers, and the public — by announcing a request for an indefinite delay in the appeal process, to enable Valero to solicit an opinion from the Surface Transportation Board, an agency under the Federal Dept. of Transportation, on the scope and breadth of preemption law. What a surprise indeed, since the role of the STB is to exclusively address rail carrier companies’ concerns and controversies, not those raised by oil companies.

We can’t forget how you expressed your dismay and discomfort:
Councilmember Hughs, you’d remarked how you were “caught off guard”, showing by your words and expression the effect of Valero’s unexpected request on the whole council. Councilmember Campbell, you’d reacted with stronger language, declaring that Valero’s request felt like “a threat.”

You’d each asked Mr. Flynn why Valero had waited so long to petition the STB, especially if the STB’s opinion were considered crucial to public discussion of Valero’s project. Afterall, our City Staff, ESA consultants, or Valero’s attorneys, could have solicited the STB two years ago when the Draft EIR was being developed. Letters submitted to the City by Valero’s attorneys, Mr Flynn and Mr. Walsh, were included in the Revised DEIR’s Appendix H. Those letters made explicit their case that Preemption renders the requirements of CEQA, the California Environmental Quality Act, largely irrelevant with regard to any significant direct or indirect impacts cited in the DEIR that would be associated to Project-related rail operations. Valero has repeatedly made this case over the last three years.

So, why do they appear to express such doubt in their own legal opinions now?

Whatever reply the STB might deliver to Valero at any future point in time would not stand to legally resolve the controversy over preemption’s authority, nor ipso facto neutralize requirements of CEQA, which call for thorough discussion of significant impacts of a project, for feasible and effective mitigations plans that would reduce or eliminate those impacts, and also, very importantly, for feasible alternatives to the Project. It’s worth remembering that the FEIR declared that the Environmentally Superior Project would be the “No Project Alternative.”

We must ask: why is soliciting STB for an opinion so necessary to “everyone” right now, as Valero’s attorney asserted?

When questioned, Mr. Flynn admitted that it could take one month for their office — presumably with green light from corporate, in San Antonio — to prepare and file their official request to the STB, and that it could take anywhere from 3 – 6 months to receive a reply, with no guarantee that one would be forthcoming even then. Presumably, Valero would be summarizing, on their own terms to STB, the views of legal experts who have testified against the broad view of preemption that Valero stands by.

In the wake of their unwelcomed request for delay, general confusion has been sown for our City Staff, this council, and our community at large and for all those communities “uprail.”However, huge political stakes have been put into play by Valero’s delay maneuver. There are many questions raised by their request, and far-reaching local and statewide political ramifications, should you approve a delay.

We know that the controversy swirling around preemption is relevant to the decisions to be made in other cities and regions in California and across the US faced with proposed crude-by-rail projects, including in San Luis Obispo County.

Most important to our City and our community:

It appears that Valero is willingly going out on a limb to interject their interests into local politics for the upcoming campaign season, and to reach beyond it.

Do you feel the set up?

Valero’s delay appears to aim to suspend or neutralize further discussion of the Project in the political arena, based on a dubious need to hear from STB, thus to focus almost exclusive attention on Preemption while avoiding discussion of local impacts under land use jurisdiction of the City of Benicia.

So let’s take stock of where we stand right now.

The City retains authority under CEQA over the land use decision governing the siting of the Project on Valero’s private property and the significant impacts that can be fairly anticipated associated to its proposed location.

Our City Attorney and Mr. Hogin are obligated to advise council on your options with regard to Valero’s request for delay. Your mandate is to preserve the independent and legitimate authority of our City on issues of land use, and thereby you must aim to preserve the welfare and wellbeing of our community.

In my view, and that of many others, you must proceed to a fair and objective determination on the most momentous and critical land use issue in decades to come before our planning commission and now this council. (Some say since WWII !)

We hope you will make a wise decision on April 4th and reject Valero’s bid for delay, with respect for public involvement and continuing public hearings on their appeal.

Thank you for your attention. — Marilyn Bardet, Benicia