Category Archives: Federal pre-emption

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 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.

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.

VALLEJO TIMES-HERALD: Public comments on Valero’s appeal

Repost from the Vallejo Times-Herald
[Editor:  Many thanks to the Vallejo Times-Herald and reporter Irma Widjojo for her late-night service to our communities, covering hearings on this incredibly important issue of statewide and national significance. We can only wish the major news outlets in the Bay Area and Northern California were so inclined.  Oh, and … great photo!  – RS]

Public comments on Valero’s appeal

By Irma Widjojo, 04/05/16, 6:28 PM PDT
Irma Widjojo - Times-HeraldMembers of Benicians for Safe and Healthy Community unravel a scroll of signed petitions against Valero Benicia Refinery 's proposed crude-by-rail project during the group's public comment slot Monday night at the Benicia City Council Chambers.
Members of Benicians for Safe and Healthy Community unravel a scroll of signed petitions against Valero Benicia Refinery ‘s proposed crude-by-rail project during the group’s public comment slot Monday night at the Benicia City Council Chambers. Irma Widjojo — Times-Herald

Benicia >> About 50 people spoke Monday night to voice their opinion on Valero Benicia Refinery’s proposed project as the public comment period of the appeal hearing began.

Like previous public comment periods on the issue, the Benicia City Council Chambers was packed for the hearing, causing a number of people to be asked to listen from the overflow areas.

The City Council is being asked to consider the Planning Commission’s decision to deny Valero’s use permit application for the crude-by-rail project and to not certify the project’s Environmental Impact Report, or EIR.

Elected officials from surrounding areas, representatives from governmental and other agencies and spokesmen for organized groups were allowed to speak first at the meeting.

About 30 people came by a chartered bus from Sacramento and the “uprail” cities to oppose the project and spoke.

A local grassroots organization Benicians for Safe and Healthy Community also used a visual prop during its address in the form of a scroll of papers containing more than 4,080 signatures of those who are against the project.

At a March hearing, an attorney working with Valero on the project said the company intends to send a request for an opinion from the Surface Transportation Board on the issue of federal preemption in relation to the project.

At the end of the hearing, later in April, the council will also decide if it will wait to make a decision on the appeal after the Surface Transportation Board, or STB, returns with a declarative order.

The staff has recommended for the council not to wait because the agency’s decision can be appealed in court and waiting would risk for the EIR to become stale.

Those who support the project are urging the council to wait, while the other side ask for a decision to be made at the end of the hearing.

“Too much money and time have been spent on this process,” a speaker said. “Let’s not postpone it further.”

At stake is the ability for the refinery to 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.

Those who supported the project say Valero has been a good neighbor in Benicia and that the project is needed for the company to remain competitive.

The refinery said the $50 million project would result in about 120 temporary construction jobs and 20 full-time jobs, as well as generate tax revenues for the city.

However, those who are against the project said the risks outweigh the benefits.

In fact, the project EIR states that there are 11 “significant and unavoidable” impacts, though staff and Valero have said they cannot be mitigated because they are rail related and are preempted by federal laws.

The Planning Commission, however, disagreed, and denied the project.

Public comment will resume Wednesday at 7 p.m. at City Hall, 250 E. L St., and the hearing will then continue April 18 and 19, if necessary.