Category Archives: Benicia Planning Commission

Benicia City Council, Benicia Planning Commission, Crude By Rail, Federal pre-emption, Local Regulation, Surface Transportation Board, Valero Crude By Rail

SACRAMENTO BEE: Benicia nixes Valero’s plan to run crude oil trains through Sacramento, Davis and Roseville

Repost from the Sacramento Bee

Benicia nixes Valero’s plan to run crude oil trains through Sacramento, Davis and Roseville

By Tony Bizjak, September 20, 2016 10:25PM

A train carrying 98 tankers of crude oil passes through midtown Sacramento.
A train carrying 98 tankers of crude oil passes through midtown Sacramento. Jake Miille

The Benicia City Council on Tuesday unanimously rejected a controversial plan by the Valero Refining Co. to ship crude oil trains through Sacramento and other Northern California cities to its bayside refinery.

The 5-0 vote, taken after four years of bitter debate, represents a victory for environmentalists and offers relief to Sacramento-area leaders who said the oil trains would put local residents and habitat at risk of a catastrophic oil spill and fire.

The Valero proposal, if approved, would have sent up to two 50-car crude oil trains rolling daily through Roseville, downtown Sacramento, Davis and other rail cities, as well as along mountainsides in the Feather River Canyon.

“I’m over the moon,” Yolo County Supervisor Don Saylor said Tuesday night. “The community of Benicia, in the crosshairs of history, made one of those decisions that will make a difference for the country. They stood up and said the safety of our communities matters.”

Sacramento County Supervisor Phil Serna said he believed letters and legal briefs from local leaders, as well as lobbying by Sacramento-area activists, played a role in persuading the Benicia council to say no to that city’s biggest employer. “I’m very pleased,” he said.

A coalition of environmental groups, including Benicia-area residents, Stand.earth, and the Natural Resources Defense Council, issued a statement Tuesday night calling the decision “a victory for the right of communities to say no to refineries’ dangerous oil train projects.”

Valero officials expressed disappointment with the decision. The company had previously said it likely would challenge an adverse decision in court, but it did not indicate Tuesday what its next steps will be.

“After nearly four years of review and analysis by independent experts and the city, we are disappointed that the city council members have chosen to reject the crude by rail project,” company spokesman Chris Howe wrote. “At this time we are considering our options moving forward.”

Increased oil train shipments in the United States and Canada in the last five years have led to a serious of crashes and explosions, including one that killed 47 people in a small Canadian town three years ago. Federal officials have issued new safety regulations, but officials in many rail cities have said the government has not gone far enough to ensure safer shipments.

A Benicia environmental impact report last year concluded that the trains would pose significant health and safety risks along the rail line, but also concluded that a harmful spill would be a rare event.

Benicia City Council member Christina Strawbridge said she made up her mind this summer after a Union Pacific crude oil train derailed in Mosier, Ore., causing an explosion and fire that forced evacuations in the area. She called that “a game changer for me” because the rail company involved was UP, the company that Valero would use, and the rail cars that punctured were newer, supposedly safer models.

“The railroad industry has not kept up with safety standards,” Strawbridge said.

Councilman Mark Hughes commended Valero for its safety record, but added: “That said, bad things do happen. At this point, there is too much uncertainty (for) me.”

The Valero refinery currently receives its oil via marine shipments and pipeline. The oil company applied in 2012 for a permit to build a rail transfer station on its refinery grounds to allow it to receive oil via train. Officials said it would help the refinery remain competitive in a changing oil industry.

The Benicia planning commission denied Valero’s request earlier this year, citing safety issues for up-rail cities, as well as concerns about negative impacts to a creek in Benicia and to the city’s nearby industrial park. The denial also included concern about the possibility of an explosion at the refinery.

Valero appealed that decision to the City Council. It also asked the federal Surface Transportation Board to issue a ruling saying that Benicia does not have the right to deny Valero’s request to build a rail transfer station. The oil company argued that federal interstate commerce regulations preempt cities from saying yes or no on rail-related projects.

In a statement issued Tuesday, the Surface Transportation Board denied Valero’s request, pointing out that Valero is not a railroad company, so it could not claim federal pre-emption protection for its transfer station project. The board issued further “guidance,” however, warning that cities cannot unreasonably interfere with rail transportation.

Several city council members said they were waiting for the transportation board’s comments before deciding on Valero’s request. The council instructed city staff to come back with a list of findings to support their denial. Several council members cautioned that those findings should focus on safety concerns at the Benicia site rather than risks to rail cities, saying that locally focused findings would be easier to defend in court if Valero sues the city.

A similar hearing is set for Thursday in San Luis Obispo County, where Phillips 66 is proposing a rail transfer station at its refinery that will allow it to ship crude oil via train, some of it likely through Sacramento and other northern California cities.

Benicia City Attorney Heather McLaughlin, Benicia City Council, Benicia City Manager, Benicia Planning Commission, Crude By Rail, Environmental Impacts, Federal pre-emption, Local land use authority, Local Regulation, On-site impacts, Surface Transportation Board, Valero Benicia Refinery, Valero Crude By Rail

City staff again recommends approval of Valero Crude By Rail – Council can vote on Tues, Sept 20

By Roger Straw, September 15, 2016

New staff report again recommends overturning Planning Commission’s unanimous decision

oil tank carsOn Thursday, City of Benicia staff released the agenda for the crucial and perhaps decisive September 20 meeting of the Benicia City Council.

A staff report accompanying the agenda stands by the staff’s previous positions on Valero’s oil train proposal, recommending on p. 10 that Council approve Valero’s appeal, reject Benicia’s Planning Commission decision, and approve the Crude By Rail project.

The staff report fails to quote the City’s own strong defense of local land use authority as stated in its recent legal brief before the federal Surface Transportation Board (STB), and attaches the brief seemingly as an afterthought, the 10th among 10 attachments.

Although City staff follows protocol, offering Council four alternative courses of action including approval, denial, re-working the environmental report and continuing discussion – it’s recommendation is unenlightened, a repeat of previously heard pro-oil-train postures of Valero and the City’s paid consultants.

The one indication that staff is giving Council real alternatives is that they include a ready draft of a resolution to deny the project, a professional courtesy not afforded to Benicia’s Planning Commission last February.

That said, eight of the ten attachments that accompany the staff report  lean heavily in favor of Valero and against opponents. A new memo by Valero Benicia executive Don Cuffel disputes the findings of environmental expert Dr. Phyllis Fox. In the memo, Cuffel touts his own experience and authority, then launches into a 6-page attack on Dr. Fox, characterizing her arguments as based on “ideology or on heated rhetoric.”

The City’s release of Cuffel’s September 13 memo at this late date will no doubt make it difficult if not impossible for Dr. Fox to rebut and defend herself and her positions prior to the September 20 meeting of Council.

The agenda also attaches a second September 13 memo commissioned by Valero that claims Benicia’s Sulphur Springs Creek is perfectly safe from potential environmental impacts, and that the “proposed project meets the requirements and intent of the City of Benicia’s stream setback ordinance.”

It is interesting that public comment on the proposal has officially been closed, and yet Valero’s latest memos are attached to the official Council agenda.  Would the City have given such prominence to an afterword by Dr. Fox?  Did staff choose to attach the recent critiques of Benicia structural engineer Amir Firouz or Benicia engineer C. Bart Sullivan, who have pointed out on-site impacts that have nothing to do with rail-related dangers?  Of course not.  When does manufactured rebuttal by the project applicant come to a close here?

Valero plays hard ball, of course, and has done so throughout the more than three years of procedings.  One can only guess at the behind-the-scenes pressure applied by Valero to City staff and supposedly impartial City consultants.  Who knows why our City Manager, Assistant City Manager and Principal Planner have chosen to leave our employ in recent weeks?

Opponents of the project have been waiting and watching for signals from Benicia’s new interim City Manager Steve Salomon. It is disappointing, if not alarming, to witness staff’s new (old) approach on Valero’s dirty and dangerous proposal. The lone holdovers on senior staff are City Attorney Heather McLaughlin and Community Develolpment Director Christina Ratcliffe. These two will be responsible, along with Council members, if Valero gets its way.

One can only hope that City Council members have taken note of the recent derailment disaster in Mosier, Oregon, the consistent input of outside experts, local structural engineers, California’s Attorney General and outside attorneys, and make a decision – finally on September 20 – to be done with Valero’s foolish proposal.

There is ample evidence of off-site and on-site factors that are sufficient for denial of this project. An entirely inadequate environmental review should not be certified, and a permit should not be granted.

(For a full listing of links to the staff report and attachments, see Benicia City Council: Sept. 20 agenda & attachments.)

****

attend2016-09-20x

Please attend the Tuesday, September 20 City Council meeting. Arrive early if you want a seat – some  will arrive as early as 5pm for this 7pm meeting! City Hall, 250 East L Street, Benicia.

Benicia City Attorney Heather McLaughlin, Benicia City Council, Benicia city staff, Benicia Planning Commission, Crude By Rail, Surface Transportation Board, Valero Crude By Rail

Valero Benicia Crude By Rail: No news is, well, a bit of news

By Roger Straw, September 2, 2016
[UPDATE as of Sept. 19, 2016 10AM PDT – still nothing from the STB.]
The Latest …STB logoEvery day, I check the Surface Transportation Board’s website, watching to see if they post a decision on Valero’s end run to delay the proceedings. Nothing yet. [If you go to their website, under E-Library, go to Decisions & Notices, or Filings, and search for “valero” under Case Title.]

Opponents of Valero’s dirty and dangerous proposal are trying to plan for the City Council’s September 20 meeting when Crude By Rail will again be on the agenda, but…

  1. no one knows at this time whether the STB will have issued an advisory or declined to do so, and if so, what the STB advice will be, and
  2.  no one is sure exactly what procedures will guide Council and the public in either case!

The latest guidance from City Attorney Heather McLaughlin is complicated, a bit confusing, and perhaps inconclusive.  In response to Benicia resident Marilyn Bardet’s inquiry, McLaughlin wrote on 8/30:

I am sorry but I have to give you the lawyerly “it depends” answer at this point. It will depend if we get an answer from the STB. If we don’t get an answer, the Council already closed the public comment. They would have to take action to re-open the hearing. If we do get an answer, the Council would have to open the public hearing to allow comment only on the new information from the STB. The Council discussion is a continuance from the last appeal hearing. They specifically continued the item to September 20th.

Then on 8/31, McLaughlin added:

If the STB responds in time for the meeting on the 20th, the Council would open the hearing for comments as it relates to the STB response. Public comments would have to relate to the response. I can imagine a range of public comments along the lines of the STB’s response means the EIR must be redone, or that the EIR is good enough, or that some aspect of it must be redone, or that some permit condition should be applied to address the STB response. As long as comments relate to the STB response, then the comment is ok. Comments on the EIR or permitting that do not relate to the STB response would not fit in since the hearing for general comments has already happened.

Quickie Background…

Last February, after 3 years of study, public and expert comments and lengthy hearings, Benicia’s Planning Commission voted unanimously to deny Valero Crude by Rail. Valero immediately appealed the decision to Benicia’s City Council.

In March, as Valero presented its appeal to the City Council, the refinery’s attorney surprised everyone by asking for a delay so that it could ask the federal Surface Transportation Board (STB) for a declaratory order favoring Valero’s proposal. Valero’s petition asks the STB to clarify whether the Interstate Commerce Commission Termination Act, or ICCTA, prohibits the city from taking rail-related impacts into account while deciding on the project.

In April on a 3-2 vote, ignoring the advice of city manager and staff, the City Council granted Valero’s request for a delay.  As part of the motion, the Council “approved continuing discussion on this item to September 20.”

After a delay of its own, Valero submitted its petition to the STB on May 31. On Jun 10 the STB granted an extension for public comments until July 8.  The STB has received multiple letters pro and con on Valero’s petition. Among the many letters is a response by the City of Benicia to Valero’s petition, in which the City asserts local land use permitting authority.

No one knows if – and when – the STB will give an opinion; and if the STB does weigh in, no one knows to what extent they will support Valero or uphold local land use permitting authority.

For complete background on the Appeal and STB, see the Benicia Independent’s APPEAL PAGE.  For public comments and City transcripts, see the Benicia Independent’s PROJECT REVIEW PAGES.  All things Valero CBR can also be found on the City of Benicia website.

 

Benicia City Council, Benicia city staff, Benicia Planning Commission, Crude By Rail, Local land use authority, Local Regulation, Surface Transportation Board, U.S. Department of Transportation, Valero Benicia Refinery, Valero Crude By Rail

Benicia Mayor outlines possible outcomes for City Council on Sept 20

Repost of an E-Alert by Benicia Mayor Elizabeth Patterson, September 18, 2016
[Editor: I would expect considerable discussion on Tuesday to center on whether to continue waiting for a Surface Transportation Board response to Valero’s end run around local permitting authority. Valero has been openly urging Council to continue to delay making a decision.  City staff and the Mayor are certainly expecting a motion to delay; 3 of the 4 possible scenarios outlined below center on continuation. (Don’t miss the quote from Christopher Hart, chairperson of the National Transportation Safety Board, and Mayor Patterson’s question, at the bottom of this E-Alert.)  – RS]

elizabethpatterson
AN E-ALERT FROM YOUR MAYOR,
ELIZABETH PATTERSON
Benicia, California

 

The Tuesday Council meeting’s main item is the decision on Valero Crude by Rail EIR and Land Use Permit. The complete packet is online here.

The following are potential scenarios for action:

  1. Valero could submit a formal written request for continuation of the appeal in order for the Federal Surface Transportation Board to render a decision on federal preemption of local land use authority. This request would be considered under the Open Government Ordinance as “new and substantial information” and the Council would decide whether or not this request is new and substantial. If the council votes in the majority, the consideration for delay for STB decision would be on the next agenda. The council would then have to decide whether to proceed or not with the action on the current agenda which is the appeal of the Planning Commission denial of the project. Staff is recommending approving the appeal.
  2. No request in writing for continuation but during the council consideration of the Valero appeal, Valero could request a “point of order” and ask for council consideration of continuing the delay. Council again would have to act on the point of order before proceeding to the agenda item. There could be the same outcome as in #1.
  3. No request for continuation by Valero and consideration of the appeal of the denial by the Planning Commission. A councilmember could request a continuation but council cannot continue the item without Valero’s consent – so a council member could ask for a continuation and if Valero agrees the consideration of continuation would have to be at the next meeting. See #1 for steps.
  4. No request for continuation by anyone. The council will hear staff report – there is no public comment on this item unless there is demonstrably new and substantial information (see above for steps by council for consideration). So the decision can be as follows:
    1. motion and second to deny appeal and thus let stand Planning Commission denial of the land use permit with or without prejudice (with means a new application of the same project must wait one year; without means no such restriction. A modified project would be considered a new application).
    2. motion and second to consider certification of Final Environmental Impact Report followed by a motion to deny appeal.
    3. motion to certify the FEIR and grant the appeal and approve the land use permit.
“We’ve been lucky thus far that derailments involving flammable liquids in America have not yet occurred in a populated area,” Hart [current head of the National Transportation Safety Board] said. “But an American version of Lac-Mégantic could happen at any time. Instead of happening out in the middle of a wheat field it could happen in the middle of a big city.”
The Bakken oil train explosion in Lac-Mégantic, Quebec, Canada, killed 47 people. As these safety issues are ignored, dismissed, or continued to be studied, an important question remains: How long until that luck runs out?