Repost from the Fairfield Daily Reporter

Valero taking oil-by-rail to feds; Benicia stays its course

BENICIA — More than four hours of staff and Valero testimony this week ended with the oil company asking the Benicia City Council for a delay and the city moving forward with its public hearing process.

Valero will seek an opinion from the federal Surface Transportation Board to determine if the city has any authority to require environmental impact mitigation for a proposed railway off-loading facility at its refinery.

The company wants to move crude oil on trains to its refinery in the Benicia Industrial Park. It has applied to the city for a use permit to construct the necessary off-loading facility.

Planning commissioners in February denied the use permit, stating in its resolution:

“(T)he proposed location of the conditional use and the proposed conditions under which it would be operated and maintained would not be consistent with the General Plan as it would be detrimental to the public health, safety or welfare of persons residing or working in or adjacent to the neighborhood of the use, or to the general welfare of the city as well as uprail communities.”

Valero appealed that decision to the City Council, which started its public hearing process Tuesday. The hearing was continued to April 4 to receive comments from the public. April 6 and April 19 are also dates set aside as needed.

Valero representatives told the city it would take a month or more to submit material to the federal board, and that the decision-making process could take three to six months more.

Valero officials could not be reached Thursday. A message was left seeking comment.

Essentially, the company does not believe the city has the authority to impose conditions on railway matters, which typically falls under federal authority, according to city documents.

The city, while admitting it does not have any authority about what happens on the railways themselves, believes it does have planning and land-use authority over the refinery facility.

“The issue is where does (the railway pre-emption) start, and where does it stop,” said Amy Million, principal planner for Benicia.

Pre-emption, in this case, is basically a concept in which state and local laws are pre-empted in favor of interstate commerce regulations, which are governed under federal authority.

The Surface Transportation Board was given its authority in the Interstate Commerce Commission Termination Act of 1995, which “pre-empts state and local regulation, i.e., ‘those state laws that may reasonably be said to have the effect of ‘managing’ or ‘governing’ rail transportation.’ ”

The act gives “the Surface Transportation Board exclusive jurisdiction over: (1) transportation by rail carriers and the remedies provided with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and (2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one state.”

Transportation board spokesman Dennis Watson said he could not comment on a project that had not yet been received by the agency.

The proposal is for oil to be transported on 50-car trains, twice daily, using Pacific Union tracks, which would pass through Fairfield, Suisun City, Dixon and into Benicia.

The shipments would replace about 70,000 barrels of oil currently brought in daily by ship.

The project has generated a great deal of comment. The city reports it tallied 1,800 substantive comments on the Environmental Impact Report, of which 550 discussed hazards, 260 focused on air quality and greenhouse gas emissions, 80 on transportation, 60 on biological resources, 50 on hydrology and geology and 40 on noise.