Category Archives: Environmental review

Crude By Rail, Dr. Phyllis Fox, Environmental review, Final Draft Environmental Impact Report (FEIR), Valero Benicia Refinery, Valero Crude By Rail

Expert Dr. Phyllis Fox blasts letters submitted last week by Benicia consultants

By Roger Straw, April 18, 2016

DR. PHYLLIS FOX: Expert blasts letters submitted by Benicia consultants

The Benicia Independent is in receipt of a late-breaking letter from well-known environmental expert Dr. Phyllis Fox, in which Fox rebuts letters submitted by the City of Benicia’s consultants last week.  Consultants MRS and ESA  submitted letters on April 11 and April 12 attacking Dr. Fox’s previous comments.

The Fox letter was submitted less than an hour ago today and is not yet posted on the City’s website.

Fox writes, “I have reviewed the letters by MRS and ESA that respond to my 4/4/16 Comments on Valero’s Appeal of Planning Commission’s Denial of the Valero Crude-by-Rail Project. The MRS and ESA responses are notable for their lack of support for numerous assertions. With few exceptions, they present no supporting calculations nor citations to specific pages in the EIR, reports, or web links. Thus, they present no new evidence and fail to respond to my comments.”

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, Crude By Rail, Environmental Impacts, Environmental review, Uprail communities, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

COUNCIL HEARINGS: List of 77 speakers – articulate, informed opposition to Valero Crude By Rail

By Roger Straw, April 8, 2016

Council Hearings this week: 77 informed, articulate and often passionate speakers critical of of Valero Crude By Rail

pubcommentOPENThis past week, the Benicia City Council heard public testimony for and against Valero’s Crude By Rail proposal – mostly against.  Video of these comments can be found on the City’s website.

On the two dates combined, Council heard 77 highly critical comments calling for outright rejection of Valero’s proposal or at the very least a much revised and recirculated environmental report. Only 16 speakers favored Valero’s proposal.

On Monday, April 4, Council heard from 52 speakers.  41 were highly critical or completely opposed to Valero’s proposal, and only 11 spoke in favor.  Of the 11 in favor, most either work for or provide services for Valero.

Here is a listing of the 41 who spoke in opposition on April 4, followed by a listing of 36 such speakers on April 6:

MONDAY, APRIL 4  (41 who spoke in opposition)

  • 8 elected and appointed officials from beyond Benicia
    • 1 State of California elected official: Alex Pater, representing Benicia’s State Senator Lois Wolk
    • 4 from uprail communities
      • Don Saylor, Yolo County Supervisor and Sacramento Area Council of Governments past Board chair
      • Matt Jones, Yolo Solano Air District, representing 7 air districts: Butte, Feather, Placer, Sacramento, Shasta, and Yolo-Solano
      • Eric Lee, City of Davis planner
      • Laurie Lipman, representing Ellen Cochrane, Sacramento Unified School District Board
    • 3 from the East Bay
      • Linda Maio, Berkeley Vice Mayor
      • Jesse Arreguín, Berkeley City Councilmember
      • Alejandro Soto-Vigil, representing Berkeley City Councilmember Kriss Worthington
  • 18 residents from uprail communities of Sacramento, Davis and Dixon:
    • Chris Brown, Chris Brown Consulting, Sacramento, representing 30 who rode the bus from uprail communities tonight
    • Maura Metz, Davis
    • Jean Jackman, Davis
    • Maria Cornejo-Gutierrez, Dixon
    • Laurie Lipman, 350 Sacramento
    • JoEllen Arnold, Sacramento
    • Jan Rein, Sacramento
    • Rob Lain, Sacramento
    • Estevan Hernandez, South Sacramento
    • Kathleen Williams-Fossdahl, Davis
    • Jaime Gonzales, Sacramento, Board of Directors, California Student Sustainability Coalition
    • Carol Warren, Dixon, slides of her neighborhood along the tracks
    • Don Mooney, Davis, Environmental attorney
    • Samantha McCarthy, Davis, lives very near the tracks
    • Frances Burke, Davis, lives very near the tracks
    • Elizabeth Lasensky, Davis, powerpoint: From Davis to Benicia: Our Lives Are on the Line”
    • Lynne Nittler, Davis. Notes.  Powerpoint: Oil by Rail Safety in California Report by the state’s Interagency Rail Safety Working Group
    • Rodney Robinson, Davis
  •  3 residents from other communities:
    • Bill Pinkham, Richmond
    • Steven Hallett, Vallejo
    • Deborah Tallin, Lafayette
  • 12 residents of Benicia
    • Marilyn Bardet, Benicians for a Safe & Healthy Community
    • Petition Roll - copies of originals (600px)
      Demonstration roll of local petitions collected by Benicians for a Safe and Healthy Community

      Andrés Soto, Benicians for a Safe & Healthy Community (While Mr. Soto spoke, members of BSHC unfurled a demonstration “scroll” of original hand-signed petitions that stretched 4 times the length of the aisle in Council Chambers (see FACEBOOK video). As he concluded speaking, Mr. Soto submitted for the public record BSHC’s list of 4,081 signatures of opponents of the project.)

    • Madeline Koster
    • Teresa Ritz
    • Carol Thompson
    • Bart Sullivan
    • Rick Stierwalts
    • David Jenkins, Benicia Industrial Park business owner
    • Kathy Kerridge, Benicia Community Sustainability Commission member
    • June Mejias
    • Pat Toth-Smith
    • Kat Black, Chairperson, Benicians for a Safe and Healthy Community

WEDNESDAY, APRIL 6  (36 who spoke in opposition)

On Wednesday, April 6, Council heard from 41 speakers. 36 were highly critical or completely opposed to Valero’s proposal, and only 5 spoke in favor. Of the 5 in favor, most either work for or supply services for Valero.

Here is a listing of the 36 who spoke in opposition on April 6:

  • 7 experts, attorneys and organizers
    • Valerie Love, Clean Energy Campaigner, Center for Biological Diversity
    • Elly Benson, Attorney, Sierra Club
    • Ethan Buckner, Extreme Oil Campaigner, STAND (formerly ForestEthics)
    • Greg Karras, Senior Scientist, Communities for a Better Environment
    • Roger Lin, Attorney, Communities for a Better Environment
    • Diane Bailey, Executive Director, Menlo Spark (formerly Senior Scientist, Natural Resources Defense Council)
    • Rachael Koss, Attorney, Adams Broadwell Joseph & Cardozo, representing Safe Fuel and Energy Resources California (SAFER)
  • 1 Benicia city official
  • 6 Benicia business  owners, including 3 from Benicia’s Industrial Park, 2 from the Arsenal District and 1 from downtown
    • Giovanna Sensi-Isolani, owner of Fiber-Frolics, downtown Benicia
    • Jack Ruszel, owner, Ruszel Woodworks, Benicia Industrial Park (adjacent to the tracks, no access if blocked in emergency)
    • Hadieh Elias, owner, principal and professional engineer, ESE Consulting Engineers, Inc., in Benicia’s Arsenal District
    • Amir Firouz, principal and structural enginner, ESE Consulting Engineers, Inc., in Benicia’s Arsenal District
    • Ed Ruszel, Ruszel Woodworks, Benicia Industrial Park (adjacent to the tracks, no access if blocked in emergency)
    • Jennifer Kalika Stanger, M.D., family physician in Vallejo, lifetime Benicia resident
  • 22 residents, including 20 from Benicia and 2 from other communities. (Note that 7 of the above listed April 6 speakers are also from Benicia, making a total of 29 Benicians.)
    • Allan Miller, Davis
    • Nancy Finley, Benicia
    • Constance Beutel, Benicia
    • Dona Rose, Benicia
    • Shiela Clyatt, Benicia
    • Larnie Fox, Benicia
    • Eric Ferry, El Sobrante
    • Charles Coleman, Benicia
    • Judi Sullivan, Benicia
    • Dan Smith, Benicia
    • Michelle Rowe-Shields, Benicia
    • Phyllis Ingerson, Benicia
    • Roger Straw, Benicia, The Benicia Independent
    • Jan Cox-Golovich, Benicia
    • Barbara Pillsbury, Benicia
    • Jenette Wolf, Benicia
    • Tom Ruszel, Benicia
    • Rebekah Ramos, Benicia
    • Lisa Reinertson, Benicia
    • Steve Jones, Benicia
    • Craig Snider, Benicia
    • Ruby Wallis, Benicia
Benicia City Council, Crude By Rail, Environmental review, Federal pre-emption, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

BENICIA HERALD: Crude by Rail hearings approaching climax

Repost from the Benicia Herald
Front page headline story in today’s Benicia Herald (not online, no link)
[Editor: This article quotes an unnamed speaker, (Joe Miesch), who stated of Benicia Planning Commissioners, “I was told that a number of them placed anti-Crude by Rail signs on their front lawns.”  This claim is false as far as I know.  I regret that Mr. Miesch and the Benicia Herald spread this unsubstantiated claim.  – RS]

Crude by Rail hearings approaching climax

By Elizabeth Warnimont, April 8, 2016

In the second of three currently-scheduled public hearings at City Hall Wednesday, speakers presented further thoughts and concerns to the City Council regarding Valero Benicia Refinery’s Crude by Rail (CBR) project. The next hearing, continued from Wednesday, will be held on Monday, April 18.

Many of the speakers Wednesday offered further clarification regarding long-standing issues like federal preemption, or presented further detail regarding things like vicinity, crude oil properties and accident statistics. While a few individuals presented heart-felt support of Valero and the project, public opinion continues to appear heavily weighted toward denying the permit.

Compared with the previous session Monday, this one brought forth more information regarding the flaws in the Environmental Impact Report (EIR) and perhaps less new information regarding the legal preemption issue. A prevalent theme was the broader importance and impact of what would be perceived by some as a community victory over “big oil.”

Another emerging theme Wednesday, one that has been present throughout the hearing process but was previously dwarfed by other issues, was the respect and appreciation that residents, and even members of environmental groups and cities and counties outside of Benicia, have for Valero, the vital role the company has played in Benicia’s economy and the integrity and professionalism of its employees.

“Valero is a good neighbor,” said one speaker. “I have a high regard for Valero as a neighbor. I don’t doubt the competence and integrity of our neighbors who work there, but I do believe the EIR is flawed and the Council should stand by your Planning Commission and their opinions.”

The overall tone of the session was relatively mellow. Perhaps because most issues of high concern have already been so thoroughly examined, as the hearings draw to a close, more speakers Wednesday expressed the broader quality-of-life aspects.

“I’m going to talk to you from my heart today,” one speaker began. “We have to think about the future of the community for our children and our grandchildren.

“Oil is not the future,” she continued. “Valero will (eventually) leave Benicia, and our staff should be deciding what the future is going to be for Benicia. Where we are going to get the money.

“You need to be leaders of the future. Lead us into a clean and healthy future.”

“We shouldn’t have to live in fear,” another speaker said. She and several others Wednesday stated that they lived or worked within the “blast zone,” meaning that in the event of a derailment and explosion, they would be incinerated.

“I have lived in Benicia for 37 years,” one speaker stated. “My family has always felt safe. My grandchildren will attend Robert Semple school in a few years. The school is well within the blast zone, as well as our home. How does one deal with the very real thought of a blast occurring at any given time, and the loss of lives that would occur? There will be no peace of mind. This is not what I would choose for our city.”

One speaker suggested that Valero could elect to become a part of society’s transition away from fossil fuels and actually lead the community in that transition.

“We are on the front lines of a global struggle to either make a swift and equitable transition to renewable energy, or to pay the increasingly dire costs of not doing so sooner,” the speaker began. “Many of us here would favor positive incentives to get Valero and other petroleum interests to take leadership in transitioning us to renewable energy.

“Don’t let anyone tell you we can’t do it,” the speaker concluded. “We must do it.”

New information

At one point during the hearing, Mayor Elizabeth Patterson inquired of City Attorney Heather McLaughlin how the Council could address any new information, specifically “new impacts” presented by one speaker in particular. McLaughlin indicated that she and City staff would address that issue.

“The question is whether or not we need to address it in the EIR,” McLaughlin clarified.

Another apparently new piece of information was presented by Greg Karras, senior scientist with Communities for a Better Environment. Citing his expertise and more than 30 years experience in refinery pollution prevention engineering (credentials presented in writing), Karras offered that the project “is essentially about changing the refinery’s basic feed stock. The project details require that the refinery shift from getting oil it can only get by pipeline or ship, to oil it can only get in project volume from sources in the Bakken, tar sands and Alberta, delivered by rail.”

Yet another new twist actually had nothing to do with the merits of Valero’s application. One 30-year resident accused the Planning Commission of impropriety, and another had some equally harsh words for Council members.

“I question the objectivity of some Planning Commission members,” the first resident stated. “I was told that a number of them placed anti-Crude by Rail signs on their front lawns. A public official who puts a sign on his or her front lawn is a strong advocate and demonstrably biased. Those advocates should not be making major policy decisions. (They) should have recused themselves from voting on the measure.”

“The City Council and the City staff have a responsibility to safeguard the citizens and the community fairly, without favoring one business over the others,” another speaker began. “The staff has been accommodating towards this Valero project from the beginning, starting with a draft mitigated negative declaration that the staff brought to the Planning Commission in June, 2013. The Planning Commission disagreed and asked for a draft EIR. The staff did not issue a request for a proposal for a consultant to prepare the EIR, which is customary, but instead without consulting the Commission or the public, retained ESA (Environmental Science Associates), the same consultant that prepared the EIR for Valero.

“The draft EIR hearings revealed many deficiencies. The City staff again retained the same consultant, ESA, to revise the EIR, instead of a new consultant.”

One of the last people to address the Council Wednesday night identified herself as a Benicia resident and a physician who treats many patients from Benicia at her practice in Vallejo.

“I’m worried about my family. I know this is a difficult decision, but if there’s one thing I’ve learned in my work as a physician, (it is this:) I have the honor of being with people at the ends of their lives, as they are looking back. One thing I see over and over is people who regret the decisions that they made for money, that they made for work, and wish they had made more that supported their families and their communities.

“We (in Benicia) are good people. We’re good neighbors. I see presentations like this and I get worried. I’m worried about my sister in Sacramento. I want us to be good neighbors.”

The next hearing on the Crude by Rail application will be Monday, April 18 at 7 p.m. at Council Chambers, City Hall, 250 East L St. Proceedings also stream live on Benicia TV, Comcast and AT&T. For more information visit the City of Benicia web site at ci.benicia.ca.us or call them at 746-4200.