Stopping oil trains is right thing for Benicia and planet
San Francisco Chronicle EDITORIAL, April 15, 2016
California’s efforts to lead on global climate change will come down to a local decision next week. Will the Benicia City Council allow 100-car oil tanker trains a day to roll into the Valero Refinery? The council should vote no to keep the state — and the world — on track toward reducing climate-warming fossil fuels.
Like the battle in Oakland to keep a port developer from shipping trainloads of Utah coal to China, the Benicia battle is emotional, divisive and very, very local. Since discussions between the city and refinery began in 2013, townspeople have packed the City Council chambers for each crucial vote in the permitting process.
Valero’s refinery, its stacks and cooling towers visible for miles, spreads across the northern edge of Benicia, a riverside town of 28,000 in Solano County. Valero is the source of jobs and a significant portion of the city’s tax base. Yet, drive through the streets and you will see “Stop Crude by Rail” signs everywhere.
This local decision counts because Benicia is a link in the global oil market. Oil trains would transport crude from the Bakken oil shale in North Dakota, as there are no pipelines from that region to deliver petroleum to refineries. Currently, Valero brings in most of the crude it refines via oceangoing tanker, which will continue regardless of the vote on the permit to retrofit the refinery for rail delivery.
Because of the small city’s important role in addressing global climate change, California Attorney General Kamala Harris has interceded twice in the permitting process. In 2014, at the urging of mayors of California cities along the rail lines, she required the city to redraft the environmental impact report to address rail safety and environmental impacts.
Last week, in a letter to the city, she disagreed with Valero’s view (also held by city consultants and staff) that Benicia was legally prohibited from denying the permit because federal rail transport law preempts local authority. Not so, the AG said: Federal law applies to railroads, not refineries. “Under federal law, the City retains its authority to take discretionary action to approve or deny Valero’s Project.”
The City Council must use its legal authority to do the right thing for Benicia — and the planet. Deny the permit.
Attorney General Harris: Benicia Has Power to Reject Oil Facility
By Jean Tepperman, April 15, 2016
California Attorney General Kamala Harris
In a strongly-worded letter sent Thursday to City of Benicia officials, California Deputy Attorney General Scott J. Lichtig wrote that Valero, the City of Benicia’s planning staff, and an outside attorney advising the city have all incorrectly interpreted the law, and that Benicia has the duty to regulate land use, and must weigh in on a proposal to expand a controversial Valero oil facility.
As the Express reported earlier this week, 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 its 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.
But Valero and Bradley Hogin, a contract attorney advising the city, have claimed that 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. The legal doctrine Hogin is referring to is called federal preemption. Assuming the city is preempted from blocking it’s oil-by-rail project, Valero has asked the Benicia City Council to delay consideration of the project while it seeks an opinion from the Surface Transportation Board, the federal agency that regulates railroads.
The Attorney General’s letter sent yesterday included a simple response to this interpretation of the law: “we disagree.”
The letter from Harris’s office not only disagreed with Valero and Hogin’s legal opinions, but also stated that to the contrary, the California Environmental Quality Act (CEQA) actually requires the city to consider indirect impacts of the project.
“A failure to include all of a project’s potential environmental impacts . . . or to disregard that information in making a decision like the one regarding Valero’s [project], not only would defeat the purpose of CEQA, but would be an abuse of discretion,” Lichtig wrote.
Harris’ letter explained at some length that federal authority over railroads applies only to railroads. The Surface Transportation Board, the federal agency that regulates railroads, “preempts state or local regulation only if the activity at issue is performed by a rail carrier,” the letter said.
Because Valero is proposing to build the project on its own land — rail spurs and related equipment to connect its refinery to the main railroad line — the Surface Transportation Board has no jurisdiction, Harris concluded.
The attorney general’s letter “clearly shows that Valero’s request for a delay was a distraction, designed to delay the inevitable vote to deny this project,” commented Andres Soto of Benicians for a Safe and Healthly Community.
The city council is planning to reconsider the Valero project on April 18 and 19. Opponents expect the letter to strengthen their case that the council should immediately vote to deny project approval, rather than wait on the federal Surface Transportation Board to weigh in, as Valero has requested.
“This letter has immense implications for similar oil-train fights in San Luis Obispo and around the country, where the issue of federal preemption has been at the forefront of local permitting battles,” wrote Ethan Buckner of STAND.earth, another organization that is opposing the Valero crude-by-rail project.
Attorney general letter disagrees with Valero, Benicia city staff
By Irma Widjojo, 04/15/16, 5:43 PM PDT
Benicia >> The Office of Attorney General Kamala Harris has sent a strongly worded letter to the City of Benicia regarding Valero Benicia Refinery’s proposed crude by rail project.
In the letter, dated Thursday, Harris’ office disagrees with the city staff and Valero’s conclusion that Interstate Commerce Commission Termination ACT, or ICCTA, prohibits the city from taking rail-related impacts into account while deciding on the project.
The issue of preemption has been the crux of the discussion regarding the project. In March, the Planning Commission has denied the use permit application and declined to certify the project’s Environmental Impact Report, or EIR.
In its appeal, Valero states that it agrees with the city staff’s conclusion that the city is legally prohibited from making that decision based on the 11 “unavoidable and significant” rail-related impacts, which were included in the report.
In the letter written by Deputy Attorney General Scott Lichtig, the office said the conclusion is incorrect.
“… ICCTA does not preempt or constrain the city’s discretionary decision-making authority where, as here, the city is exercising that authority with respect to a project taken by an oil company that is not subject to the jurisdiction of the Surface Transportation Board,” the letter states.
In 2014, the office also sent a letter to the city urging it to correct “deficiencies” in the draft EIR.
“In fact, for Benicia to turn a blind eye to the most serious of the project’s environmental impacts, merely because they flow from federally regulated rail operations, would be contrary to both state and federal law,” according to the most recent letter.
On Monday, or if necessary Tuesday, the city council is set to meet to make a decision on Valero’s appeal and its request to postpone the decision making until the company receives a possible declarative order from the State Transportation Board regarding the issue of preemption in the project.
Many public members have spoken in support or opposition to the project in the beginning of the month, and the public comment session will continue on Monday.
When everyone is heard, Valero will have five minutes to make its case, followed by questions from the council before it makes its decision.
Valero is seeking the permit to build infrastructure on site to allow the company bring in two 50-car trains a day carrying up to 70,000 barrels of North American crude oil. The company’s oil is now being transported into the city by marine vessels and pipeline.
Each meeting is set for 7 p.m. at City Hall, 250 E. L St.
No decision on Phillips 66 oil-by-rail proposal after fifth day of hearings
By David Sneed, April 15, 2016 10:27 AM
HIGHLIGHTS
• Planning Commission continues the discussion to May 16, when a decision is expected
• Panel considered a range of issues, including air quality, bridge safety and emergency response
• Public turnout Friday was light because no public comment was taken
Planning commissioners listen Friday during the fifth hearing on Phillips 66’s oil-by-rail proposal for its Nipomo Mesa refinery. Credit: David Middlecamp
After a fifth daylong hearing, the San Luis Obispo County Planning Commission did not come to a decision on a controversial proposed rail spur project at the Phillips 66 Nipomo Mesa refinery and scheduled a sixth and possibly final hearing for May 16.
During Friday’s hearing, the commission considered a wide range of issues associated with the project, including air quality, bridge safety, hazards, emergency response and the composition of the oil to be shipped. One of the greatest fears regarding the proposed rail spur at the Phillips 66 oil refinery is that one of the long trains supplying the refinery could derail in a fiery crash.
“What is a rail car going to do if it turns over on the (Cuesta) Grade,” asked Commissioner Jim Irving. “Is it going to blow up?”
Jim Anderson, refinery manager, said the company will use the latest, most up-to-date tankers to transport the oil according to the Department of Transportation requirements to prevent that from happening. He also said the type of crude oil the tankers will be hauling is the heavier, less flammable kind.
“These cars are the state-of-the-art according to the DOT,” he said. “We will not start this project without those cars.”
John Peirson, a consultant with Marine Research Specialists of Ventura, which prepared the project’s environmental impact report, said even with the heavier crude oil, crashes have resulted in explosions and fireballs. He also said a thinner would be added to make the oil easier to pump and transport, and that this would increase its flammability.
“It is less likely, but it is possible,” he said.
For oil train accidents, the evacuation zone along the railroad is half a mile on either side. In San Luis Obispo County, 88,377 people live within half a mile of the tracks, said Ryan Hostetter, senior county planner.
The evacuation zone is the area adjacent to the tracks in which a person is liable to be injured in the event of a fire and explosion. Of greatest risk are densely populated areas and public facilities such as schools and hospitals. For example, Sierra Vista Regional Medical Center in San Luis Obispo is near the railroad.
“These are areas where you would expect very severe consequences,” said Steve Radis, another MRS consultant. “Potentially, if you were outdoors, you could be injured, and evacuating a hospital would be a major disruption.”
The amount of crude oil transported by rail has increased 50 times since 2009. Since that time, three accidents a year involving oil cars have occurred nationally, none locally, Radis said.
In October 2015, Cal Fire conducted a simulated oil car derailment accident drill at the California Men’s Colony prison that involved 100 people. The simulation included multiple fires, creek pollution and inmate injuries, Battalion Chief Laurie Donnelly said.
It took several hours to put the oil fires out, but the most time-consuming part of the drill was treating the injured inmates.
“We did well, but we found a few areas of improvement, which is to be expected in a drill like that,” she said.
More than 50 people were in attendance Friday at the commission’s fifth hearing on the project.
Public turnout at Friday’s hearing was light compared with past hearings, which attracted hundreds of people. The light turnout was attributable to the fact that no public comment was taken.
The oil company has applied to build a 1.3-mile rail spur with five parallel tracks from the main rail line to its Nipomo Mesa refinery, an unloading facility at the refinery and on-site pipelines.
These improvements would allow the refinery to accept five trains a week for a maximum of 250 trains per year to deliver crude oil to the refinery. Each train would have three locomotives, two buffer cars and 80 rail cars carrying a total of 2.2 million gallons of crude oil.
County staff is recommending the proposal be denied. The project drew more than 400 speakers at previous hearings as well as thousands of letters and comments sent from around the state.
Opponents say the project will cause air pollution and other environmental consequences. They are also concerned about a derailment causing an oil spill and fire.
In order to reduce these environmental impacts, Phillips 66 has offered to reduce the shipments to three trains a week, or 150 per year.
Supporters say the project is needed to keep the refinery economically viable and protect its 200 jobs. They also point out that the refinery has operated safely and the state needs the oil products it will produce.
Whatever decision the Planning Commission makes will certainly be appealed to the county Board of Supervisors.
Valero’s refinery, its stacks and cooling towers visible for miles, spreads across the northern edge of Benicia, a riverside town of 28,000 in Solano County. Valero is the source of jobs and a significant portion of the city’s tax base. Yet, drive through the streets and you will see “Stop Crude by Rail” signs everywhere.
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