Category Archives: Benicia Planning Commission

Air pollution, Benicia CA, Benicia City Attorney Heather McLaughlin, Benicia City Council, Benicia city staff, Benicia Planning Commission, California Attorney General Kamala Harris, Crude By Rail, Derailment, Environmental review, Explosion, Federal pre-emption, Federal Regulation (U.S.), Fire, Local Regulation, Public Health, Public permitting, Public Safety, Surface Transportation Board, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

EAST BAY EXPRESS: Benicia Oil-by-Rail Battle Hinges on Legal Controversy

Repost from the East Bay Express

Benicia Oil-by-Rail Battle Hinges on Legal Controversy

Opponents of oil-by-rail shipments want the city to block a proposed Valero facility, but Valero says the city lacks this power.
By Jean Tepperman
mg_ecowatch_3827.jpg
Andres Soto said Benicia shouldn’t wait on federal regulators to reject Valero’s oil-by-rail project. BROOKE ANDERSON

An oil-by-rail facility that Valero wants to build at its Benicia refinery has been stalled by opponents concerned about environmental impacts and safety issues for over three years now. But Valero and an attorney working on contract for the City of Benicia claim that the city cannot stop the project because federal railroad law preempts the city’s powers. Project opponents say this is a flawed interpretation of federal law, however, and that Valero’s new oil facility should be cancelled.

Valero’s original proposal was presented in 2013 as a simple plan to build a couple of rail spurs from the main railroad line to the company’s refinery, and the city announced its intention to approve the plan without doing an environmental impact review. A torrent of opposition greeted this announcement, however. As a result, the city was forced to conduct three environmental impact reviews and hold public hearings. Then, last February, Benicia’s planning commission unanimously reversed approval for the project. Now the oil facility is pending a final decision by the city council.

Supporters say the crude-by-rail project is necessary to preserve Valero’s — and Benicia’s — economic viability and the nation’s energy independence. Opponents say it will cause increased air pollution and environmental destruction, and that expanding oil-by-rail transportation increases the risk of catastrophic accidents like explosions and fires due to derailment.

But according to Bradley Hogin, a contract attorney advising the city, the federal government’s authority over railroads means that local governments are not allowed to make regulations that affect rail traffic — even indirectly. And when they’re deciding on a local project, cities are not allowed to consider the impact of anything that happens on a rail line, claims Hogin. The legal doctrine Hogin is referring to is called federal preemption.

But other attorneys call Hogin’s interpretation of federal laws “extreme” and say that the city has every right to block the project if it so chooses. Environmentalists have also pointed out that Hogin has represented oil companies against environmental and community groups in the past. Project opponents say Hogin is biased in favor of Valero, and is not giving the city accurate legal advice. When asked if Hogin’s previous work suggests that he could be biased, Benicia City Attorney Heather McLaughlin said no. “I think he has had great experience in the refinery industry and I think that’s been helpful for us,” she said.

Hogin’s legal argument that cities are preempted from influencing oil-by-rail projects has major national implications. As the shipment of crude oil via railroad has grown in recent years, so have the number of derailments, oil spills, fires, and explosions, including the 2013 explosion that killed forty-seven people in Lac Megantic, Quebec. As a result, communities across North America have demanded that local authorities stop rail shipments of crude oil through their towns. In addition to Benicia, San Luis Obispo County is currently in the midst of a battle over crude by rail.

“Hogin is making a case that would affect cities across the nation dealing with crude by rail,” said Marilyn Bardet, a founder of Benicians for a Safe and Healthy Community. “They [are trying] to create a legal precedent here.”

Many lawyers, including California Attorney General Kamala Harris, say the exact extent of federal preemption of local authority is still being worked out in the courts. In her legal opinion on the Valero project’s environmental review, Harris cited several cases in which local governments were allowed to implement health and safety regulations involving railroads.

Several lawyers submitted opinions and testified in Benicia City Council hearings held on April 4 and 5 challenging Hogin’s interpretation. And in one of the hearings, Berkeley City Council member Linda Maio told her Benicia counterparts that the city council has the right to make its own land-use decisions. “This is in your town and you’ve been elected to see to the health and safety of your citizens,” said Maio.

Valero and its critics have been arguing about the extent to which Benicia’s authority is preempted by federal law since last summer. After the planning commission rejected Valero’s project in February, the company showed up at the March city council meeting with a surprise request: that the council delay voting on the project until Valero has a chance to make an appeal to the federal Surface Transportation Board (STB), which regulates railroads.

That didn’t sound right to Benicia resident Andres Soto, who works for Communities for a Better Environment, an environmental group opposed to the project, so Soto called the STB and talked to staff attorney Gabriel Mayer. In a report Soto submitted to the city council, he wrote that Mayer told him that the STB is not the final authority on federal preemption, and that the state and federal courts serve that purpose.

Soto also said that the STB deals with disputes among railroads, and since Valero is not a railroad, it’s unlikely the agency would take its case. Many speakers at last week’s hearings urged the city council to deny Valero’s bid for a delay and reject the project immediately.

But project supporters emphasized the economic benefits of bringing crude oil by rail to Benicia. Berman Olbadia of the Western States Petroleum Association, an oil industry lobbying group, said that Valero creates jobs and generates tax revenue. Michael Wolf, of Ageion Energy Services, said that oil by rail reduces California’s dependence on foreign oil.

Later, however, Greg Karras, senior scientist at Communities for a Better Environment, said North American crude would create serious new problems that the environmental reviews for the Valero project did not address. Canadian tar sands produce very heavy oil with an extra load of toxic chemicals, said Karras. In addition, refining tar sands oil would dramatically increase the refinery’s emissions of carbon dioxide, the main pollutant causing global warming. The other major type of North American crude from North Dakota’s Bakken fields produces highly explosive oil. Trains carrying Bakken crude have been involved in a number of fires and explosions.

People from “uprail” communities have also turned out at Benicia hearings to oppose the Valero project. “The oil trains will pass through our downtown and pass my house,” said Frances Burke, a resident of Davis. “We will have the fumes and particulate matter from increased daily trains. I’m also a potential victim of a deadly accident, explosion, or derailment.”

Benicia resident Bardet said the project site is especially dangerous because the crude-oil-offloading tracks would be “adjacent to crude oil storage tanks and Sulphur Springs Creek, in a flood-plain zone and active fault zone, and also directly across from the industrial park along East Channel Road.” According to Bardet, derailment or fire involving flammable crude oil could have catastrophic results.

College student Jaime Gonzalez said the project would further proliferate fossil fuels, which accelerate climate change, and that future generations will bear more of the burden. “The consequences would fall on the shoulders of my generation,” he said.

Hearings will continue April 18 and 19 in Benicia, and the city council will then decide whether to wait for Valero’s federal appeal, or vote to approve or deny the project.

Benicia City Council, Benicia Herald, Benicia Planning Commission, Crude By Rail, Derailment, Explosion, Federal pre-emption, Local Regulation, Public permitting, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

ROGER STRAW: STOP Valero’s dirty and dangerous Crude By Rail proposal

By Roger Straw, April 13, 2016
[Editor: The following article was submitted to the editor of the Benicia Herald, referencing recent pro-Valero letters published there.  – RS]

STOP Valero’s dirty and dangerous Crude By Rail proposal

The latest flurry of pro-crude-by-oil letters published in the Benicia Herald contained unwarranted attacks on local opponents of Valero’s Crude By Rail project. The claims were false, self-serving and blind to the factual realities of pollution and safety hazards that should result in denial of Valero’s proposal.

On Sunday, Valero employee John Lazorik attacked opponents repeatedly, discounting the public’s legitimate fear of increasing pollution and catastrophic explosions, referring to the overwhelming opposition as “irrelevant,” and claiming to know that our motivations are impure. In four different sections of his full page letter, he dismissed and belittled the tireless work of Planning Commissioner Steve Young, writing off his probing questions and detailed inquiry as “soundbites” and calling him a “ringleader for promoting disrespect.” Mr. Young respectfully disagreed with staff, pointed out the fatal flaws of the environmental report and disagreed with arguments that would weaken the City’s ability to provide for the public’s health and safety. All five of the other Planning Commissioners studied the documents, heard testimony, and offered their own similar critiques, resulting in a unanimous vote against the project. Benicia Herald readers – and our City Council – should read Mr. Lazorik with a pretty big dose of skepticism.

On Wednesday, Valero employee Duayne Weiler wrote that “90 percent of the negative pushback by mostly those outside of Benicia has been on rail traffic outside the refinery.” This is simply not true – on two counts. Just look at the 1200 Benicia residents’ signatures on a petition and listen to the testimony of 32 Benicia residents who spoke opposing the project at last weeek’s hearings. LOCAL Benicians began organizing to oppose Valero’s dirty and dangerous project in 2013. I was there – I’m one of the small group of Benicia friends who gathered to discuss it in March of that year, and who have persevered. Secondly, note that we have ALWAYS focused on pollution as well as explosive derailments, and have ALWAYS pointed out local onsite hazards as well as uprail hazards. Our local efforts were joined later on by outside forces who care about their communities and a healthy climate. The presence and testimony of outsiders is something I am personally grateful for and proud of. Our local work has been proven and strengthened by the voices of residents, experts and officials in Sacramento, Davis, the Bay Area, throughout California and beyond.

In another letter on Wednesday, John Potter wrote of “vitriol and fabrications that have been a part of this…process.” When a permitting process as profoundly significant as this one goes public, there are bound to be raised voices and individuals who transgress the bounds of civility – on both sides. But to characterize the entire opposition to Valero Crude By Rail in this way is to play dirty politics. The work of local organizers has been studious, detailed, fact-based and direct.

Mr. Potter concludes with a statement supporting the oft-repeated and as yet unsubstantiated claim that City Council may not consider issues beyond Valero’s borders due to federal law. Opponents have indeed raised serious questions about uprail impacts, as has the environmental report. There are, however, enough significant local, onsite hazardous impacts to allow Council to withhold a permit. To deny the project based on these onsite issues would indirectly protect our uprail neighbors from the pollution and catastrophic risks associated with Valero’s proposal. We believe that the City’s supposed inability to consider railroad hazards beyond Valero’s border could itself be considered an important reason to deny the permit.

Everyone should plan to attend next Monday’s City Council meeting, 7pm at City Hall. Anyone who has not yet spoken may do so at that time. And our silent presence will stand as a strong signal to Council members to do the right thing: STOP Valero’s dirty and dangerous Crude By Rail proposal.

Roger Straw
Benicia

Benicia City Council, Benicia city staff, Benicia Planning Commission, Benicians for a Safe and Healthy Community, Crude By Rail, Derailment, Final Draft Environmental Impact Report (FEIR), Valero Benicia Refinery, Valero Crude By Rail

CAL STATE EAST BAY: Crude oil by rail a possibility in Benicia

Repost from The Pioneer, Cal State East Bay
[Editor:  Excellent, balanced coverage.  Be sure to see new quotes from Benicia Principal Planner Amy Million, Benicia resident Beverly Edmonds, Benicia Economic Development Manager Mario Giuliani, Andrés Soto of Benicians for a Safe and Healthy Community and Valero’s PR Manager Sue Fisher Jones.  – RS]

Crude oil by rail a possibility in Benicia

By Kali Persall and Vanessa Pineda, Managing Editor and Contributor, April 6, 2016
Photo by Kali Persall/The Pioneer

A controversial proposal by the Valero oil refinery that would bring in thousands of tons of crude oil a day has some Benicia residents seriously questioning whether it’s time to peel the “It’s Better in Benicia” bumper stickers from the backs of their cars and relocate.

Originally proposed in 2013, the project would bring 70,000 barrels of crude oil into the Benicia oil refinery facility by roughly 100 railroad tank cars daily. It would not increase the amount of crude currently brought to the refinery through pipeline and marine vessels, but instead would replace 81 percent of the oil imported by ship. According to Valero, the refinery can process up to 170,000 barrels of oil per day.

Trains have been known to derail, and in cases where crude oil was on board, have killed people, ruined the environment and destroyed the value of entire towns. Benicia residents are divided on whether the transportation developments are necessary and worth the risk to the environment.

The Benicia City Council heard Valero’s appeal for the project on March 15, which was initially rejected the city planning commission, after four nights of hearings and public comment, on Feb. 11 where over 145 people signed up to speak, according to Amy Million, principal planner of the city. The planning commission reviewed the final Environmental Impact Report (EIR) before unanimously concluding that the potential risks to the environment in the event of a derailment or unloading accident were too significant to justify approval.

After hearing Valero’s appeal a month later, the city council is currently deliberating whether or not to approve the crude by rail project.

Three proposed possible train routes between the Southern California border, Roseville and Benicia would follow the Union Pacific railroad and pass through various cities throughout the state before arriving in Benicia. According to the Revised Draft EIR, project-related train traffic on the train routes would generate nitrogen oxide emissions that could turn into ozone, which could exceed air quality standards in air districts along the routes. This is considered one of the 11 significant unmitigatable impacts on which the planning commission based its decision to deny the proposal.

Nitrogen Oxide (NOx) is a poisonous gas and air pollutant that is emitted by automobiles, industrial sources and fuels that contain nitrogen, such as oil, according to the United States Environmental Protection Agency. When mixed with volatile chemicals in the presence of sunlight, it can form ozone, also known as smog; a gas that can cause serious respiratory damages when inhaled. According to the EPA, ozone can cause coughing, throat irritation and even reduce lung function, and is one of two pollutants that pose the greatest threat to human health in this country.

Fifty nine letters opposing the project were published in the final EIR, many containing concerns about the harmful effects that rail transportation could have on the environment. Valero’s crude by rail project was proposed shortly after a 74-car freight train carrying crude oil derailed in Lac-Megantic, Quebec, a town of roughly 6,000. Forty-seven people were killed and nearly 6 million liters of oil seeped into the land, water and atmosphere during the fire that ensued, according to the Montreal Gazette. Many residents are worried that a similar disaster could occur in Benicia, a city of roughly 28,000.

“I have a two-year-old grandchild and I worry how this will affect him,” said 16-year Benicia resident Beverly Edmonds, 67. “Will he be living in this lovely place or a toxic, decimated shell of a town or will his health be affected by toxic fumes or the effects of a rail disaster?”

According to Mario Giuliani, the city’s economic development manager, oil refineries were the city’s saving grace when the Benicia Arsenal, a military reservation next to the Suisun Bay, closed down due to lack of funding and employment opportunities in the early 1960’s. According to the city of Benicia, the arsenal was a staging area for several wars and employed thousands of people before its closure in 1964. With the displacement of so many people, the town suffered a major economic downturn according to Giuliani.

According to The Benicia Herald, Humble Oil bought some of the vacant former arsenal land in 1967. Not long after, it changed hands again when it sold to the Exxon Oil Company. The refinery’s presence brought in the oil industry and anchored the economy in Benicia, replacing many, if not all or more, of the jobs that were lost after the arsenal closure, according to Benicia city officials. Valero bought the refinery from Exxon in 2000 and currently provides over 400 jobs. According to the EIR, the project would create 20 permanent full-time jobs and 120 temporary jobs.

From the $3 million in property taxes that the refinery pays the city annually, the city only keeps 24 cents on the dollar and the rest goes to the county, schools and other programs in the area, explained Guiliani.

According to Sue Fisher Jones, public affairs manager of Valero, the Benicia refinery is one of only two in California to earn the Voluntary Protection Program “Star Site” designation, which recognizes organizations that have implemented health and safety programs that successfully control occupational hazards. The refinery earned its title in 2006 and has since passed two recertification audits. The other refinery with this designation is the Valero located in South Los Angeles.

“I have lived in Benicia since 2003 (worked at Valero since 2005) and have never experienced a community Shelter-in-Place,” Jones told The Pioneer. Shelter-in-place is an emergency response plan in which people hunker indoors to avoid hazardous air pollution.

A Facility Profile Report by the EPA revealed that Valero released 1,068,877 pounds of chemicals into the environment in 2014. The total amount released in the United States for that year was 3.4 billion pounds.

Andrés Soto, spokesperson and steering committee member for Benicians for a Safe and Healthy Community (BSHC) helped form the organization around the time of Valero’s proposal in 2013. BSHC opposed the project from the beginning and recommended that it be reviewed under the California Environmental Quality Act (CEQA) which requires agencies to identify the potential significant environmental impacts of their projects in an EIR.

The EIR looks at all the potential scenarios and issues of a project and evaluates whether the applicants are equipped to handle them. For example, in the case of a derailment, emergency response teams benefit by knowing what specific type of crude oil is being transported in order to better tackle the specific situation. “The dirtier, the heavier the crude, the more sulfur, creating more noxious emissions,” explained Soto. Valero declined to release the specific type of crude oil to be transported, labeling it a trade secret, according to the EIR.

Giuliani believes that those who don’t support the project don’t necessarily oppose Valero specifically, but oppose the oil refinery process itself. “If they had proposed to bring water in instead, no one would’ve cared,” he said.

Citizens are also concerned about the effect the project will have on the value of property. According to an article in the San Jose Mercury News, a fire at the Richmond Chevron Refinery in August 2012 caused a 14.62 percent drop in property taxes. A 2006 study by Stephen Farber from the University of Pittsburgh confirmed that housing markets are sensitive to real or perceived risks associated with being located close to a site that contains hazardous material, such as a refinery.

Photo by Kali Persall/The Pioneer

“My husband and I probably have another ten good years,” said Edmonds. “At some point we will need to move to something much smaller and easier to care for, or to a retirement home. The money we get from our house will be essential for that.”

Benicia City Council, Benicia Planning Commission, Crude By Rail, Davis CA, Dixon CA, Federal pre-emption, Local Regulation, Public permitting, Sacramento Area Council of Governments (SACOG), Sacramento CA, Valero Benicia Refinery, Valero Crude By Rail, Yolo County

DAVIS ENTERPRISE: Benicia hears oil-train concerns from Davisites

Repost from the Davis Enterprise
[Editor:  I know Lynne as a strong advocate against Valero’s Crude By Rail proposal.  Her fair-minded coverage of both sides of the debate in this article is amazing and admirable.  A good overview of the hearing on Monday.  – RS]

Benicia hears oil-train concerns from Davisites

By Lynne Nittler, April 06, 2016

BENICIA — Davis was well-represented at a Benicia City Council hearing Monday for Valero Oil’s crude-by-rail project. Of the approximately 48 people who spoke, 12 came from Davis or Dixon, and another six were from Sacramento.

The speakers voiced their opposition to the oil company’s proposal to expand its refinery and accept 100 rail cars daily full of North American crude oil on a route that comes directly through downtown Davis.

The hearing continues with more public testimony tonight plus April 18 and 19 at the City Chambers in Benicia.

The evening began with a rally of those opposed to the project counter-balanced by a gathering of Valero workers and supporters of the project. A busload of 23 people from Sacramento stopped to pick up seven more in Davis, arriving just as the hearing began in the packed chambers.

Officials were allowed to speak first, beginning with Yolo County Supervisor Don Saylor, who also represented the Sacramento Area Council of Governments. He traced Yolo County’s effort over the past three years to communicate the serious safety concerns and to offer possible mitigation measures that were acknowledged but not addressed in the EIR.

He said 500,000 of the 2.4 million residents in the SACOG area — the counties of Yolo, Sacramento, Sutter, Yuba, Placer and El Dorado — live in the blast zone of the railroads, i.e., within a quarter-mile radius of the tracks. Of those, 260,000 are residents, 200,000 work in the area and 28,000 are students.

While acknowledging that Valero and its jobs are important, Saylor emphasized that this project “requires a shared commitment to protecting public safety.” He said the project should not be approved until the safety concerns are resolved.

Matt Jones of the Yolo Solano Air Quality Management District represented all seven districts that have responded jointly in writing to three versions of the environmental impact report for the Valero project. He said the EIR documents the impacts correctly, but fails to offer or respond to any mitigations, even when the Sacramento Metropolitan AQMD offered staff time to work out an off-site mitigation plan.

Jones reminded the Benicia council that San Luis Obispo County is examining a similar crude-by-rail proposal, and Phillips 66 has voluntarily offered such off-site mitigations.

Eric Lee, a city of Davis planner, made a plea for Benicia council members to uphold the decision of their Planning Commission, which voted on Feb. 11 not to certify the final environmental impact report and denied Valero’s permit.

He added that Davis believes that legally, the local jurisdictions are not pre-empted by federal rail regulations and that up-rail cities are entitled to have their comments addressed in the EIR.

He concluded by saying that the city of Benicia has a legal obligation to safeguard the public.

“I continue to be concerned about the Valero crude-by-rail project regarding the significant air quality impact,” state Sen. Lois Wolk, D-Davis, wrote in a letter to the Benicia council, read by her representative, Alex Pader. Wolk recommended specific steps, and if said they cannot be met, then the project should not move forward.

She reminded the council members that her own obligation is to protect the public from harm, which she has done with two pieces of legislation on oil-train safety, and said their obligation to safeguard the public is no less.

Marilyn Bardet, spokeswoman for Benicians for a Safe and Healthy Community, encouraged the council members to use their ethical judgment, and read all the material from the past years, plus what is pouring in now, to inform themselves at this crucial juncture in the decision-making process. She urged them to uphold the decision of the Planning Commission.

After a break, a mix of speakers pro (12) and con (16) spoke for up to five minutes each.

One Valero proponent said America has a tremendous thirst for oil; therefore, don’t we have a responsibility to produce it?
Jasmine Powell, a resident of Benicia, said Valero never risks its outstanding safety record as indicated by its high OSHA ratings.

Michael Wolfe, senior vice president of an engineering services firm, said California crude is increasingly scarce and Alaskan crude is running out as well. Valero is seeking to purchase North American oil to avoid importing more foreign oil. California already imports more foreign crude than any other state, Wolfe said.

Seven other Valero workers and supporters spoke of their trust in Valero’s high safety standards.

On the other side, Frances Burke of Davis spoke of the Planning Commission’s work as “epic,” and made an eloquent plea for the up-rail communities not to be dismissed as collateral damage.

Don Mooney , an environmental lawyer from Davis, said in his 25 years in environmental law, he had not seen a case with more uniform opposition, where so many have stood opposed for the same reasons.

Katherine Black simply read the list of officials and organizations opposing the project for five minutes, including all seven air quality management districts, all 22 cities and six counties who belong to SACOG, the California Office of Spill Prevention and Response and the California attorney general.

The Benicia City Council will hear more testimony tonight.