Repost from the Vallejo Times-Herald
[Editor:  Vallejo Times-Herald reporter Irma Widjojo gets BenIndy’s Media Award for enduring all four late-night hearings, and for her four news reports.  See FRIDAY’s final report below and TUESDAY: Benicia Planning Commission begins hearing to decide on crude-by-rail project, WEDNESDAY: Public comment begins on Valero Benicia Refinery’s proposed project, and THURSDAY: Passionate testimonies pour in on Valero proposed project.  – RS]

Benicia commissioners deny Valero’s crude by rail application

Benicia >> The Benicia Planning Commission has denied the use permit application by Valero Benicia Refinery to bring crude oil by rail against the recommendation of city staff.

After four late-night meetings and hours of public testimony, the commissioners unanimously voted to not certify the final Environmental Impact Report and deny the application for the project.

“We are feeling great.” said Andres Soto, spokesman for Benicians for Safe and Healthy Community, a grassroot organization in opposition of the project.

“It’s been a three-year battle. We knew we were right the whole time,” Soto said.

Valero has 10 business days, beginning Tuesday due to the holiday weekend, to appeal the decision to the Benicia City Council.

Valero officials said Friday they are evaluating the company’s option for an appeal.

“We are disappointed that the Planning Commission did not agree with the staff recommendation to certify the project EIR and approve the use permit. Most disappointing was the commissioners disregard for the opinions of a multitude of environmental and legal experts who spent over three years to evaluate this project,” said Chris Howe, Valero’s Heath, Safety and Environment director, in an email.

In December 2012, the refinery submitted the use permit application to begin construction to allow up to 70,000 barrels of North American crude oil to be transported via two 50-car trains.

Since then, the project has been met with a strong opposition from a number of Benicia residents, as well as those who live “uprail,” including Davis and Sacramento. The report states that there are 11 “significant and unavoidable” impacts related to the rail transport of the project.

Though city staff said any mitigation to these rail-related impacts are preempted by federal laws, on Thursday the commissioners disagreed with the staff’s findings, calling the law surrounding the issue “murky.”

Many attorneys representing organizations, as well as the Sacramento Area Council of Governments, said Benicia is not preempted by federal laws. One of the arguments is that the applicant for the permit is Valero Benicia Refinery, and not Union Pacific Railroad.

“If Valero doesn’t get the permit, Union Pacific will go on business as usual,” an attorney said.

She added that any mitigation required by the city for Valero’s project will not interfere with the railroad’s current business operation.

Thursday night, city staff again reasserted its position on preemption, stating that any actions by the commission taken surrounding rail-related impacts are not allowed.

“The local agency will run afoul if it adopts a regulation that will indirectly or directly affect the railroad,” said Brad Hogin, an attorney contracted by the city.

The city is also not allowed to deny the project based on these impacts, Hogin said.

A couple commissioners took issue with the staff’s opinion.

“We’re asked to find that the benefits do not outweigh the risk, but we are not allowed to do anything about it,” Commission Chair Donald Dean said. “Do you see how this is a conundrum?”

Commissioner Steve Young, who has been the most vocal during the hearing, also expressed his displeasure.

“You’re very certain in your position, and the other lawyers are very certain of their positions,” Young said. “You’re asking us to make a decision based on what is not a set law.”

They also said there are too many risks that come with the project, citing inadequate methods of assessing the greenhouse gas emission and traffic impacts.

“There are serious flaws with the EIR,” Commissioner George Oakes said. “And to be told at the 11th hour that we have no options on the rail impacts, it’s not nice. … What are we really talking about here? Is it the additional profits for a couple of companies?”

In his conclusion, Young quoted Valero General Manager Don Wilson saying that Valero will not close the refinery if the permit was not approved.

Valero has contended that the project would benefit Benicia economically through the creation of jobs. The additional option to transport crude oil would also make the company more competitive and flexible in the market, officials said.

The commission also has agreed that staff will work with Dean to add the commissioners’ findings into the report.