Valero wins one; attorneys wrangle; opponents get testy
Catching up on recent events
Sorry, I had to take a little break. When the Benicia City Council voted 3-2 to put off a decision on Valero’s crude by rail proposal (CBR), it was just a bit too much.
I was deeply discouraged by the majority’s need for yet more information. Three Council members wish to hear from the federal Surface Transportation Board (STB) before making the decision whether to permit a rail offloading rack on Valero property – a project that would foul California air and endanger lives and properties from here to the border and beyond, a project that would clearly contribute to the ongoing effects of global warming.
So I was one discouraged 3½ year supposedly-retired volunteer. I was in no shape last week to send out my Friday newsletter.
Here, as best I can summarize, is news from the last 2 weeks:
Valero wins one
You will recall that Valero appealed the Planning Commission’s unanimous February decision on crude by rail to not certify the environmental report and to deny the land use permit. Then at the Benicia City Council’s opening hearing on the appeal on March 15, Valero surprised everyone by asking for a delay in the proceedings so that it could ask for guidance from the federal Surface Transportation Board (STB).
City staff recommended against Valero’s request, rejecting the proposed delay as unnecessary and risky, given that the City and Valero could end up with a “stale” environmental report that requires yet another time-consuming revision and more hearings.
Opponents also argued against the delay, noting that the request would be carefully framed by Valero in its own favor, submitted for review to an industry-friendly STB, and result in a judgement that would still be subject to final review in a court of law. Opponents also pointed out the possibly that the delay was a Valero political tactic, given that this is an election year with three members of City Council up for re-election.
At the most recent City Council hearing on April 19, contract attorney Bradley Hogin disclosed that he was not involved in the staff decision to recommend against the delay, and that he disagreed with his employers. Given every opportunity by Council members, Hogin argued at length in favor of the delay. During verbal questioning, Council did not give similar opportunity to Hogin’s bosses to argue against the request for delay.
And guess what, 3 members of Council were convinced by the pleasant instruction of their outside attorney Hogin that we would do well to hear from the STB before rushing (3 years into the process) to judgement.
Win one for Valero. Council will resume consideration in September.
The attorneys wrangle
We are asked to believe that the big issue here after 3 years of environmental review has nothing at all to do with the earth or the health and safety of you, me, our neighbors or the lands and wildlife.
Supposedly, according to Valero’s attorney and contract attorney Hogin, it’s all about “federal preemption.” Supposedly, our city officials have no legal authority to impose conditions or mitigations or deny a permit in this case.
However, according to California’s Attorney General and environmental attorneys, “federal preemption” does not prohibit City government from making such land use decisions based on local police powers and the legal requirement to protect public health and safety. Federal preemption protects against state and local authorities regulating railroads. A refinery, says our Attorney General, is not a railroad. Go figure.
Anyway, Valero’s attorney has written several letters on preemption and taking issue with the Attorney General. The Attorney General has written several letters, sticking by its argument. Environmental attorneys have written several letters making similar arguments.
In addition to the letters, Valero’s attorney and Mr. Hogin have testified at length under questioning by City Council members. Environmental attorneys have been given only 5 minutes each to speak at hearings, with little or no back and forth questioning from City Council members.
Everyone I have talked to expects this decision to end up in court, whether or not the STB issues a ruling, and regardless of which way they rule.
Benicians for a Safe and Healthy Community gets testy
Like me, I suspect, members of our local opposition group, Benicians for a Safe and Healthy Community (BSHC) were highly disappointed and discouraged by the Council vote to delay for Valero and the STB.
In interviews and online statements that followed the April 19 Council vote, some BSHC members were quick to presume that the 3 Council members who voted for delay would also support Valero when it comes to a final vote in September.
Of course, a 3-2 vote favoring Valero in September is not the only possible outcome. Some would say that the next 5 months might best be spent respectfully reminding Council members of facts of the case, and encouraging them to make the right decision.
Those of us who have spent countless hours opposing Valero’s dirty and dangerous proposal have known all along that it is an uphill battle, that the odds are against us, that big business prevails all too often against the interests of health, safety and clean air. But look what happened at our Planning Commission. There is hope.
It seems to me that the presumption of a negative outcome can only serve to harden Council members’ attitudes and opinions. But I may be wrong.
Some will continue to argue that Council members should be made to feel the public’s disappointment, that outrage and pessimism is understandable, and that an obvious implication is that unhappy voters will have their say in November.
I’m convinced that hardball politics and small-town respect for decision makers will need to co-exist over the next few months. Come September, we shall see.
BOMB TRAINS – THE SCARIEST THREAT YOU DIDN’T KNOW ABOUT
They’re explosive. Pervasive. And their movements are cloaked in secrecy. Their nickname? Bomb trains. And they roll through the heart of Chicago.
A train carrying hazardous material, potentially crude oil, heads south through Chinatown’s Ping Tom Memorial Park, photographed at dusk on March 15, 2016. PHOTO: JON LOWNENSTEIN
BY Ted C. Fishman, April 25, 2016 9:35 A.M.
They could not look more ominous. The long coal-black tubes announce themselves by their distinctive shape and color, their markings too small to read from the street. The 30,000-gallon tank cars roll, sometimes 100 at a time, in trains of up to one mile in length. Their cargo? Crude oil—as much as three million gallons per train. Nearly all of it is light sweet Bakken crude, a type that is particularly explosive. In whole, these trains constitute likely the biggest, heaviest, and longest combustibles to ever traverse America, and they do so routinely. More pass through Chicago than any other big metro area. Their blast potential has earned them a terrifying nickname: bomb trains.
Stand long enough at 18th and Wentworth, on the traffic bridge that separates the newer sections of Chinatown from the largely residential South Loop, and you will spot the tank cars wending their way across neighborhoods on the Near South and West Sides, past playgrounds, schoolyards, and row after row of houses. An estimated 40 of these trains cut through the metro area weekly. There’s no public information on exact routes or timetables; revealing their paths, the logic goes, might aid potential saboteurs, a real risk in an age of terrorism.
Until recently, crude on the rails was relatively rare. But since 2008, when Bakken oil began rolling out of newly active fields in the United States—North Dakota is the biggest producer—and toward Eastern refineries, the number of oil tank car shipments has grown 50-fold. That’s pushed the number of accidents up, too. According to U.S. government data, from 1975 to 2012, an average of 25 crude oil spills from tank cars occurred on the rails each year. In 2014, that number rose to 141. Most incidents are minor, such as small leaks. But in cases of a major derailment, the result can be catastrophic, even fatal (see “Terrifying Incidents,” below).
Chicago found that in the last three years there were 17 derailments of crude oil trains in North America significant enough to generate news coverage. In eight of them, the tank cars blew, sending fireballs hundreds of feet into the air, filling the sky with black mushroom clouds. In the most severe cases, the flames produced are so hot that firefighters almost inevitably choose to let them burn out, which can take days, rather than extinguish them. (The Wall Street Journal calculated that a single tank car of sweet crude carries the energy equivalent of two million sticks of dynamite.) Even when there are no explosions, the spills can wreak havoc on the environment: five of the 17 accidents resulted in the pollution of major waterways, affecting thousands of people across the continent.
Chicago is particularly vulnerable. As the Western Hemisphere’s busiest freight hub, the city has become a center for crude oil traffic, too. High volumes, combined with a densely populated urban setting, have watchdogs such as the Natural Resources Defense Council alarmed. Henry Henderson, the NRDC’s Midwest program director, sums up the threat this way: “Trains with highly explosive materials are traveling through the city on aging tracks in cars that are easily punctured, which can result in devastating explosions.”
Many of these trains cut through what were once industrial rail yards in the city and suburbs. Over the last 35 years, however, much of that property has turned into residential and commercial clusters. “You should assume that if you live in the Chicago area, near a railroad track, that there are trains carrying Bakken crude oil,” says Jim Healy, a member of the DuPage County Board.
Though Chicago has so far been spared a crude oil train crash, the potential of one presents a horrifying picture. One particular nightmare is emblazoned in the minds of first responders, and regulators. On July 6, 2013, a runaway crude oil train, which had been left unattended, sped through the center of the small Quebec town of Lac-Mégantic. Sixty-three cars derailed. Forty-seven people were killed, some literally incinerated while they drank at a bar.
The catastrophic 2013 derailment in the Quebec town of Lac-Mégantic PHOTO: PAUL CHIASSON/THE CANADIAN PRESS
Emergency responders in the Chicago area say they are confident any derailment here could be managed before it reached neighborhood-destroying levels. “Crude is not the threat that everyone says it is,” says Gene Ryan, chief of planning for Cook County’s Department of Homeland Security and Emergency Management. Ryan and a group of first responders looked closely at 29 major accidents across North America and found that “even though the crude is full of all kinds of volatile materials, the cars did not completely blow apart and hit homes,” he says.
But in a city as dense as Chicago, it takes only one freak incident to have a titanic effect on the urban landscape. Just last year, on March 5, on a stretch of track near Galena, Illinois, 21 BNSF Railway train cars carrying 630,000 gallons of Bakken crude derailed and tumbled down an embankment. Five of them burned for three days. At the time, James Joseph, director of the Illinois Emergency Management Agency, told the Chicago Tribune: “We’re fortunate this occurred where it did, in a remote area, and there were no homes around it.”
Experts believe the train was likely headed for Chicago, 160 miles to the east.
Historically, oil in America moved from south (think Texas and Louisiana) to north mostly through pipelines, the safest conduits for it. When newly deployed technologies such as horizontal drilling and hydraulic fracturing—or fracking—opened access to sources of oil in North Dakota and elsewhere in the West, few pipelines were in place to move the crude to the refineries back east that could handle it. (A proposed pipeline for Bakken crude running from Stanley, North Dakota, to Patoka, Illinois, has faced political and jurisdictional challenges.) With limited alternatives, oil producers and refiners turned to railroads. In 2014, trains carried 11 percent of the nation’s crude oil.
So what paths do these tank cars take? The exact routes are state secrets. But assuming 40 trains, carrying three million gallons of crude oil each, pass through the Chicago area weekly, that means more than 17 million gallons roll through the city daily. It’s an inexact count, and the NRDC has continued to push to get accurate information. “A lot of people don’t know their residences are adjacent to hazardous cargo,” says Henderson. “The issue should be subject to public discussion, but the public has been cut off from it.”
Using freight maps and firsthand reporting, the West Coast environmental advocacy group Stand has assembled a national map of the most common crude oil train routes and created an interactive website that allows users to determine how far any U.S. location is from these routes. For example, according to the site, half of Chicago’s Bridgeport neighborhood, home to 32,000 people and U.S. Cellular Field, falls squarely within a half-mile “evacuation zone,” established by the U.S. Department of Transportation for areas vulnerable to crude oil train explosions. Stretch that to the one-mile “impact zone” and you include the Illinois Institute of Technology, University of Illinois at Chicago, and Cook County Juvenile Court.
It’s not just Chicago proper that sees traffic from crude oil trains. They cut through Joliet, Naperville, Barrington, Aurora, and dozens of other suburbs. “I can look outside my office and see them passing through downtown,” says Tom Weisner, Aurora’s mayor. “About 120,000 tanker cars a year now come through our city.”
Last April, the U.S. Department of Transportation ordered a maximum speed for crude oil trains of 40 miles an hour in populous areas. The majority of railroads run them 10 miles slower than that, an acknowledgment, in effect, that the trains aren’t invulnerable. Most often, it is a flawed track, wheel, or axle that leads to a derailment, which can then cause tank cars to rupture.
Bakken crude was first shipped using tank cars designed for nonhazardous materials and ill suited to its volatility. (Most tank cars are owned not by the railroads but by the oil producers and refiners, such as Valero Energy and Phillips 66, that ship crude.) Those first-generation tank cars, called DOT-111s, have almost all been subjected to new protections, including having their shells reinforced with steel a sixteenth of an inch thicker than used in earlier models. Federal regulations passed in 2015 mandate that by 2025 haulers must replace all cars with new models featuring even thicker steel shells and other safety measures.
Railroads know the dangers. In addition to the human and environmental costs, one terrible accident could put a railroad company out of business. Montreal, Maine & Atlantic Railway, which ran the train that devastated Lac-Mégantic, could only cover a fraction of its hundreds of millions of dollars in liabilities and went bankrupt.
The big railroads hauling crude in the United States and Canada have spent heavily on new technology to make their lines safer, including an Association of American Rails app called AskRail, which identifies the contents and location of rail cars carrying hazardous materials. What railroad companies cannot yet do is reroute trains away from the populous areas whose growth their lines once spurred. There simply isn’t the infrastructure in place to do so.
And while the American Association of Railroads reports that rail companies have spent $600 billion since 1980 improving their current routes, even well-maintained tracks remain vulnerable. Department of Transportation accident data shows that broken rails were the main cause of freight derailments from 2001 to 2010. What’s more, the Federal Rail Administration, the agency charged with overseeing the integrity of America’s tracks, says it can only monitor less than 1 percent of the federally regulated rail system annually due to a shortage of manpower.
“There’s a lackadaisical attitude among people, including officials, about infrastructure that is not up to the threats against it, even as the threats are manifesting,” says Henderson. “You saw that in Flint, Michigan, and in other places with drinking water. And now with crude oil trains, which deal with very serious materials moving [on a system] not adequate to protect people from mistakes.”
10 Terrifying incidents
With crude oil rail shipments growing 50-fold in the last eight years, the number of accidents has risen too. Below, 10 of the most damaging. —Katie Campbell
JULY 6, 2013
Lac-Mégantic, Quebec
In the worst recent accident, 63 cars on a runaway train derailed in the heart of this Canadian town. The resulting blast and flames killed 47 residents and destroyed 30 buildings in the small downtown.
NOVEMBER 8, 2013
Aliceville, Alabama
Outside this tiny Southern town, 25 cars spilled nearly 750,000 gallons of oil into surrounding wetlands, creating an environmental nightmare.
DECEMBER 30, 2013
Casselton, North Dakota
After two trains collided, 18 cars on the one carrying crude oil spilled nearly 400,000 gallons.
FEBRUARY 13, 2014
Vandergrift, Pennsylvania
Enroute from Chicago, a train went off the track and crashed into a downtown industrail building.
Lynchburg PHOTO: STEVE HELBER/AP
APRIL 30, 2014
Lynchburg, Virginia
A train from Chicago derailed near a pedestrian waterfront area, sending three cars—and 30,000 gallons of oil—into the James River.
FEBRUARY 16, 2015
Mount Carbon, West Virginia
After 27 cars went off the track during a snowstorm and exploded, the fire burned for four days.
Galena PHOTO: MIKE BURLEY/AP/TELEGRAPH HERALD
MARCH 5, 2015
Galena, Illinois
A train likely headed to Chicago derailed on a remote stretch of track, sending cars down an embankment. Even though the cars had been reinforced with half an inch of steel, the fire burned for three days.
MARCH 7, 2015
Gogama, Ontario
Just one month after a derailment in the same area, five cars fell into the Makami River, leaking oil into waterways used by locals for drinking and fishing.
MAY 6, 2015
Heimdal, North Dakota
Five cars exploded and spilled nearly 60,000 gallons of oil. Fire crews from three nearby towns were called to help fight the blaze.
JULY 16, 2015
Culbertson, Montana
Twenty cars toppled from the track, with three spilling a total of 35,000 gallons of oil, forcing 30 people to evacuate.
Benicia council calls a timeout on oil train issue
Special to the Enterprise by Elizabeth Lasensky, April 24, 2016
On Tuesday night, a majority of the Benicia City Council voted to allow the Valero refinery a continuance on hearings on its oil train project request. Valero wants the delay to petition the federal Surface Transportation Board for clarification on federal pre-emption and indirect pre-emption of its project.
Although Valero is an oil refinery, now calling itself a “shipper,” the crude oil will be traveling in rail cars on Union Pacific tracks. However, the project itself will be on Valero property within the city of Benicia.
The Surface Transportation Board’s website states this about its oversight:
“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.”
Federal pre-emption dates to the founding of the railroads. Only the federal government has regulatory authority over railroads. Cities and states cannot create regulations regarding railroads.
The majority of the Benicia City Council members commented that they did not have enough information on pre-emption to move forward with a vote on the environmental impact report and the use permit. Benicia Mayor Elizabeth Patterson attempted to point out that there is sufficient evidence to know how the STB would rule and that the council should move forward. In her view, there are other issues and projects on which city staff need to spend time.
By making this decision, the council chose to ignore three years of work and a unanimous opposition decision by its own Planning Commission; public comments by many of their own residents; countless hours of staff time; testimony by up- and down-rail elected officials, agencies and citizens; comments and recommendations by experts from various air quality boards; opinions by lawyers from several nonprofit agencies; and expert comments from the office of California Attorney General Kamala Harris.
Based on their questions and comments, it was apparent that those council members had not read the EIR and the subsequent public comments. Rather, they chose to accept the opinion of the city’s contract attorney in lieu of doing their homework.
By allowing Valero this delay to submit a petition to the Surface Transportation Board, the council has opened the door to abdicating its authority to determine its own land-use policy within the city boundaries. The EIR likely will become stale and all the work that went into that document might need to be redone. Further, any opinion offered by the STB still could be challenged in court.
Whether or not an opinion has been made by the STB, the Benicia City Council will reconvene hearings on Sept. 21. Two members insist they must have this information to make a decision and want to reconsider what to do if the decision is not returned by this date.
Up- and down-rail communities, agencies and activists will be closely following the process.
— Elizabeth Lasensky is a Davis resident and oil train activist.
Northern California towns lack resources to handle oil train fires, spills
By Jane Braxton Little, April 23, 2016 7:49 AM
HIGHLIGHTS
• Lassen County town has no reliable water supply for firefighting
• Crude oil transport by rail grew 1,700 percent in 2015
• Federal government providing hands-on response training
A BNSF train carrying dozens of tank cars crosses an 80-year-old trestle heading south to Union Pacific Railroad tracks through the Feather River Canyon. Jane Braxton Little
WESTWOOD – BNSF Railway trains carrying crude oil and other hazardous materials rumble through this Lassen County community every day – past homes, churches and a scant block from the downtown commercial center.
If a tank car were to derail and explode, Westwood Fire Chief Forest Duerksen would take the only action he’s equipped for: Evacuation. Of all 1,000 residents.
Westwood Fire Chief Forest Duerksen CQ stands next to the BNSF Railway tracks, a stone’s throw from the fire station in this Lassen County community. Jane Braxton Little
Westwood has no consistent source of water, and the closest trailers with enough foam to extinguish a large blaze are a full four hours away, he said: “We’d just have to get everybody out and go from there.”
Rural officials like Duerksen have been worried for decades about the chlorine, ammonia, propane and crude oil transported through their northern California communities by BNSF and Union Pacific Railroad. But a dramatic surge in production in oil fields in the Midwest and Canada increased the volume from about 10,000 railroad tank cars in 2008 to nearly half a million in 2014. In 2015, the U.S. Energy Information Agency reported a 1,700 percent increase in crude oil transportation by rail.
That’s slowed significantly in the last year, a change generally attributed to a drop in the price of oil. But emergency responders worry that the volume will swell again when crude oil prices rise. In recent weeks, many have observed an increase in the number of tank cars on trains running south toward Sacramento and San Francisco.
That could be a precursor to the half-mile long oil trains planned for travel through Northern California to Benicia. Valero Refining Co. has proposed building a rail loading station that would allow importing oil on two 50-car trains a day to the city 40 miles northeast of San Francisco.
The trains would run through Roseville, downtown Sacramento, West Sacramento, downtown Davis, Dixon and other cities. East of Roseville, the route is uncertain. Trains could arrive via Donner Summit, Feather River Canyon, or through the Shasta and Redding areas.
WE’D JUST HAVE TO GET EVERYBODY OUT AND GO FROM THERE.
Westwood Fire Chief Forest Duerksen
On Tuesday, the Benicia City Council postponed until September a decision on Valero’s appeal of a February planning commission recommendation that unanimously rejected the proposal.
Accidents have mounted with the increase in the number of trains transporting oil around the country. A 2013 oil train explosion in Lac-Megantic, Quebec, haunts firefighters across the continent. The fire and detonation of multiple tank cars carrying Bakken crude oil killed 47 people and destroyed dozens of buildings.
No one was hurt in 2014, when 11 cars derailed on Union Pacific tracks in the Feather River Canyon, spilling corn down a hillside above the river that supplies drinking water to millions of people as far south as Los Angeles. The cars could easily have been carrying crude oil, with substantial environmental consequences far beyond the Feather River, said Jerry Sipe, director of Plumas County’s Office of Emergency Services.
“We were lucky,” he said.
In 2015 there were 574 railway “incidents” involving hazardous materials while in transport, according to the federal Pipeline and Hazardous Materials Safety Administration. Of these, 114 were in California, and three in Roseville, site of a large rail yard. Most were minor, and none involved fatalities.
Officials in California’s up-rail cities, including Sacramento, have raised objections to plans to expand oil train traffic, saying not enough attention is being given to safety concerns. But these large urban jurisdictions are far better equipped to respond to incidents than their counterparts in rural Northern California, where train tracks pass through some of the state’s roughest terrain.
In these rural areas, the people responding first to oil spills and accidents are generally local fire departments like Duerksen’s, one of the nation’s 20,000 all-volunteer fire organizations. Among the small rural communities along BNSF’s tracks through Northern California, the Westwood Fire Department is one of the better equipped for a hazardous materials accident.
Duerksen took advantage of a BNSF program at the railroad industry’s training and research center in Pueblo, Colo. That gave him hands-on experience in using water and foam on a burning railcar, and taught him advanced techniques for containing spills.
1,700 percent
Increase in crude oil transportation by rail in 2015
Since then, several volunteer firefighters from Westwood and communities along the BNSF line have attended the training. Quincy and other fire departments along the Union Pacific line have also sent volunteers to Pueblo.
Plumas County was recently awarded a grant to acquire an oil spill trailer with firefighting foam and 1,200 feet of “hard booms,” which can contain large quantities of hazardous materials. Sipe said it will be positioned along Highway 70 at Rogers Flat for quick deployment in the Feather River Canyon, where aging trestles and sharp curves make it among the most accident-prone rail lines in the state.
“We’re better protected now than a year ago,” Sipe said.
Despite the improvements, many fire departments remain untrained and poorly equipped. In Greenville, where the BNSF line passes directly through residential and commercial areas, none of the 25 volunteers has been to the oil-spill training in Pueblo, said Chris Gallagher, general manager of the Indian Valley Community Services District, which oversees the fire department. Four of the department’s 10 pieces of equipment have been deemed inoperable by the California Highway Patrol, he said.
“We definitely need some help,” said Gallagher.
That could come through an innovative program taking the Pueblo emergency response training on the road. Rail safety experts will travel to communities around the country providing hands-on accident preparedness to firefighters. Funded by a $2.4 million award from the Pipeline and Hazardous Materials Safety Administration, the mobile training program is expected to train about 18,000 first responders from remote rural communities in 2016.
The award is part of a $5.9 million grant to provide hazardous materials training for volunteer or remote emergency responders. Plumas County has already requested the mobile training, Sipe said.
BNSF strongly supports these programs, said Lena Kent, a company spokeswoman. Last year alone it trained 10,000 first responders, 1,500 of them in California.
Duerksen, the Westwood fire chief, said he feels much safer than he did two years ago, when the increase in oil-train traffic had emergency responders on edge. “We’re better trained and better prepared now,” he said.
But not everyone is content with the increased training and beefed-up emergency response equipment. Larry Bradshaw, a retired therapist and community activist in Westwood, is advocating for additional safety requirements for BNSF. He wants to see a high-risk rail designation extended from Greenville to Westwood, imposing a 45 mph maximum speed and increasing the number of inspections.
“We’re not prepared at all. There’s no way we can respond to a spill. The only thing we can do is evacuate,” Bradshaw said.
Sorry, I had to take a little break. When the Benicia City Council voted 3-2 to put off a decision on Valero’s crude by rail proposal (CBR), it was just a bit too much.
So what paths do these tank cars take? The exact routes are state secrets. But assuming 40 trains, carrying three million gallons of crude oil each, pass through the Chicago area weekly, that means more than 17 million gallons roll through the city daily. It’s an inexact count, and the NRDC has continued to push to get accurate information. “A lot of people don’t know their residences are adjacent to hazardous cargo,” says Henderson. “The issue should be subject to public discussion, but the public has been cut off from it.”
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