Category Archives: On-site impacts

City staff again recommends approval of Valero Crude By Rail – Council can vote on Tues, Sept 20

By Roger Straw, September 15, 2016

New staff report again recommends overturning Planning Commission’s unanimous decision

oil tank carsOn Thursday, City of Benicia staff released the agenda for the crucial and perhaps decisive September 20 meeting of the Benicia City Council.

A staff report accompanying the agenda stands by the staff’s previous positions on Valero’s oil train proposal, recommending on p. 10 that Council approve Valero’s appeal, reject Benicia’s Planning Commission decision, and approve the Crude By Rail project.

The staff report fails to quote the City’s own strong defense of local land use authority as stated in its recent legal brief before the federal Surface Transportation Board (STB), and attaches the brief seemingly as an afterthought, the 10th among 10 attachments.

Although City staff follows protocol, offering Council four alternative courses of action including approval, denial, re-working the environmental report and continuing discussion – it’s recommendation is unenlightened, a repeat of previously heard pro-oil-train postures of Valero and the City’s paid consultants.

The one indication that staff is giving Council real alternatives is that they include a ready draft of a resolution to deny the project, a professional courtesy not afforded to Benicia’s Planning Commission last February.

That said, eight of the ten attachments that accompany the staff report  lean heavily in favor of Valero and against opponents. A new memo by Valero Benicia executive Don Cuffel disputes the findings of environmental expert Dr. Phyllis Fox. In the memo, Cuffel touts his own experience and authority, then launches into a 6-page attack on Dr. Fox, characterizing her arguments as based on “ideology or on heated rhetoric.”

The City’s release of Cuffel’s September 13 memo at this late date will no doubt make it difficult if not impossible for Dr. Fox to rebut and defend herself and her positions prior to the September 20 meeting of Council.

The agenda also attaches a second September 13 memo commissioned by Valero that claims Benicia’s Sulphur Springs Creek is perfectly safe from potential environmental impacts, and that the “proposed project meets the requirements and intent of the City of Benicia’s stream setback ordinance.”

It is interesting that public comment on the proposal has officially been closed, and yet Valero’s latest memos are attached to the official Council agenda.  Would the City have given such prominence to an afterword by Dr. Fox?  Did staff choose to attach the recent critiques of Benicia structural engineer Amir Firouz or Benicia engineer C. Bart Sullivan, who have pointed out on-site impacts that have nothing to do with rail-related dangers?  Of course not.  When does manufactured rebuttal by the project applicant come to a close here?

Valero plays hard ball, of course, and has done so throughout the more than three years of procedings.  One can only guess at the behind-the-scenes pressure applied by Valero to City staff and supposedly impartial City consultants.  Who knows why our City Manager, Assistant City Manager and Principal Planner have chosen to leave our employ in recent weeks?

Opponents of the project have been waiting and watching for signals from Benicia’s new interim City Manager Steve Salomon. It is disappointing, if not alarming, to witness staff’s new (old) approach on Valero’s dirty and dangerous proposal. The lone holdovers on senior staff are City Attorney Heather McLaughlin and Community Develolpment Director Christina Ratcliffe. These two will be responsible, along with Council members, if Valero gets its way.

One can only hope that City Council members have taken note of the recent derailment disaster in Mosier, Oregon, the consistent input of outside experts, local structural engineers, California’s Attorney General and outside attorneys, and make a decision – finally on September 20 – to be done with Valero’s foolish proposal.

There is ample evidence of off-site and on-site factors that are sufficient for denial of this project. An entirely inadequate environmental review should not be certified, and a permit should not be granted.

(For a full listing of links to the staff report and attachments, see Benicia City Council: Sept. 20 agenda & attachments.)



Please attend the Tuesday, September 20 City Council meeting. Arrive early if you want a seat – some  will arrive as early as 5pm for this 7pm meeting! City Hall, 250 East L Street, Benicia.

Additional comments by environmental expert Dr. Phyllis Fox

By Roger Straw, April 19, 2016

Additional comments by environmental expert Dr. Phyllis Fox

The Benicia Independent is in receipt of an April 18, 2016 letter by Attorney Rachael Koss of Adams, Broadwell, Joseph and Cardozo, representing Safe Fuel and Energy Resources California (SAFER).

The letter introduces an additional 9-page analysis by environmental expert Dr. Phyllis Fox, “ROG and Benzene Emissions from Unloading Rack Operations.”  (ROG refers to Reactive Organic Gases.)

Dr. Fox’s new study includes sections on “Railcar Fugitive Emissions At Unloading Racks” and “Other Unloading Emissions” along with several tables.

This letter was submitted to the City of Benicia within the last hour, and had not yet been posted on the City’s website at the time of this posting.

SACRAMENTO BEE: California Attorney General Kamala Harris challenges Benicia oil plan

Repost from the Sacramento Bee

California Attorney General Kamala Harris challenges Benicia oil plan

By Tony Bizjak, April 14, 2016 4:29 PM

• Harris said Benicia has the right to say no, is not pre-empted by federal law
• Two 50-car oil trains would travel daily through downtown Sacramento
• Valero spokesman: ‘We remain confident our views related to the application of federal pre-emption in this matter’

This train is a crude oil train operated by BNSF. The train is snaking its way west through James, California just outside of the Feather River Canyon in the foothills into the Sacramento Valley. Photo taken June 5, 2014 by Jake Miille
This train is a crude oil train operated by BNSF. The train is snaking its way west through James, California just outside of the Feather River Canyon in the foothills into the Sacramento Valley. Photo taken June 5, 2014 by Jake Miille

California Attorney General Kamala Harris weighed in on Benicia’s ongoing oil train debate on Thursday, arguing that the city has a legal right to reject a local refinery’s oil train plan and the obligation to review environmental risks.

The debate involves a plan by Valero Refining Co. to ship up to two 50-car trains a day of crude oil through Northern California, including through Roseville, downtown Sacramento and Davis, to its plant on Suisun Bay on the outskirts of Benicia. Valero is seeking city permits to make changes at its refinery to allow it to receive train shipments.

California Attorney General Kamala Harris addresses the California Chamber Capitol Summit in Sacramento, Calif., Wednesday, May 27, 2015.(AP Photo/Rich Pedroncelli)
California Attorney General Kamala Harris addresses the California Chamber Capitol Summit in Sacramento, Calif., Wednesday, May 27, 2015. (AP Photo/Rich Pedroncelli)

In a five-page letter Thursday, Harris repeatedly challenged Valero’s assertion – and the opinion of an attorney on hire to Benicia – that the city cannot consider any potential negative impacts of oil trains to cities along the rail line.

“We disagree that the city is prohibited from considering the project’s 11 significant and unavoidable rail-related impacts when exercising its local land use authority,” said Harris, the state’s top law enforcement official, said.

An earlier environmental impact report conducted by Benicia concluded that the trains presented significant and unavoidable risks of oil spill, environmental damage and potential loss of human life if one were to derail while en route to the refinery. Several spills and explosions in recent years, including one in which 47 people were killed, have highlighted the dangers of crude oil trains nationally.

Bradley Hogin, an environmental attorney hired by Benicia, has argued that federal interstate commerce law pre-empts the city from turning Valero’s proposal down because that decision would at least indirectly be telling the Union Pacific railroad company what it can and can’t do.

The Benicia Planning Commission earlier this year rejected Hogin’s opinion and denied Valero’s permit request. Planning commissioners said they did not want to put cities on the rail line at risk, but they also made a point of saying they also were rejecting Valero’s proposal because of local issues, such as flood and traffic concerns.

Valero appealed that decision to the Benicia City Council, which is conducting hearings, including two scheduled for next week.

Numerous attorneys representing environmental and social justice groups have argued that Hogin’s reading of the law is wrong. Sacramento-area officials have sent several letters to Benicia calling on that city to protect communities along the rail line, and a number of Sacramento and Davis residents have testified in Benicia against the plan.

The state attorney general is the highest law enforcement official to weigh in on the matter. Harris, a Democrat, is running for U.S. Senate this year.

Harris argues, in her letter, that federal pre-emption law on rail shipments does not apply because Valero is not a railroad company and is only asking Benicia for permission to make improvements at its local refinery site.

“Both Valero and city staff incorrectly argue that the city’s denial of Valero’s use permit will somehow impermissibly interfere with Union Pacific’s rail operations,” the attorney general said in her letter, written by Deputy Attorney General Scott Lichtig. “The city’s denial of Valero’s use permit is not categorically pre-empted” by federal law because it doesn’t interfere with UP’s federal rights.

In sum, the attorney general’s office said that under federal law Benicia “retains its authority to take discretionary action to approve or deny Valero’s project.”

Valero spokesman Chris Howe responded Thursday in an email to The Sacramento Bee, saying, “We remain confident in our views related to the application of federal pre-emption in this matter.”

In an email to The Bee Thursday evening, Hogin responded.

“City staff disagrees with the Attorney General’s letter,” he wrote. “Based on current law, cities do not have the authority to make permitting decisions based on impacts from rail operations. Cities may only consider local impacts that could result from a shipper’s unloading facility. The status of the permittee as rail carrier or shipper is not the deciding factor; what matters is the nature of the regulation – whether it addresses impacts from a shipper’s unloading facility, or impacts from rail operations.”

Yolo County Supervisor Don Saylor, who has acted as spokesman for the local six-county Sacramento Area Council of Governments, said the Attorney General’s analysis is consistent with SACOG’s own legal analysis. “At this point it seems clear that the significant environmental impacts and public safety risks of this expanded crude oil terminal outweigh the project benefits,” he said.

Ethan Buckner of Stand California, one of several organizations that oppose crude oil shipments, issued a statement lauding Harris.

“Attorney General Harris stood up for democracy and public safety today,” Buckner said. “Valero was hoping to cloud the issue with complicated federal law. … The City Council must now uphold the Planning Commission’s unanimous decision to reject the Valero oil train project.

“And all other cities in California and around the U.S. now know for certain that federal law does not preempt or constrain the city’s discretionary decision-making authority.”