Category Archives: Surface Transportation Board

Benicia City Council, Benicia Planning Commission, Crude By Rail, Federal pre-emption, Local Regulation, Surface Transportation Board, Valero Crude By Rail

SACRAMENTO BEE: Benicia nixes Valero’s plan to run crude oil trains through Sacramento, Davis and Roseville

Repost from the Sacramento Bee

Benicia nixes Valero’s plan to run crude oil trains through Sacramento, Davis and Roseville

By Tony Bizjak, September 20, 2016 10:25PM

A train carrying 98 tankers of crude oil passes through midtown Sacramento.
A train carrying 98 tankers of crude oil passes through midtown Sacramento. Jake Miille

The Benicia City Council on Tuesday unanimously rejected a controversial plan by the Valero Refining Co. to ship crude oil trains through Sacramento and other Northern California cities to its bayside refinery.

The 5-0 vote, taken after four years of bitter debate, represents a victory for environmentalists and offers relief to Sacramento-area leaders who said the oil trains would put local residents and habitat at risk of a catastrophic oil spill and fire.

The Valero proposal, if approved, would have sent up to two 50-car crude oil trains rolling daily through Roseville, downtown Sacramento, Davis and other rail cities, as well as along mountainsides in the Feather River Canyon.

“I’m over the moon,” Yolo County Supervisor Don Saylor said Tuesday night. “The community of Benicia, in the crosshairs of history, made one of those decisions that will make a difference for the country. They stood up and said the safety of our communities matters.”

Sacramento County Supervisor Phil Serna said he believed letters and legal briefs from local leaders, as well as lobbying by Sacramento-area activists, played a role in persuading the Benicia council to say no to that city’s biggest employer. “I’m very pleased,” he said.

A coalition of environmental groups, including Benicia-area residents, Stand.earth, and the Natural Resources Defense Council, issued a statement Tuesday night calling the decision “a victory for the right of communities to say no to refineries’ dangerous oil train projects.”

Valero officials expressed disappointment with the decision. The company had previously said it likely would challenge an adverse decision in court, but it did not indicate Tuesday what its next steps will be.

“After nearly four years of review and analysis by independent experts and the city, we are disappointed that the city council members have chosen to reject the crude by rail project,” company spokesman Chris Howe wrote. “At this time we are considering our options moving forward.”

Increased oil train shipments in the United States and Canada in the last five years have led to a serious of crashes and explosions, including one that killed 47 people in a small Canadian town three years ago. Federal officials have issued new safety regulations, but officials in many rail cities have said the government has not gone far enough to ensure safer shipments.

A Benicia environmental impact report last year concluded that the trains would pose significant health and safety risks along the rail line, but also concluded that a harmful spill would be a rare event.

Benicia City Council member Christina Strawbridge said she made up her mind this summer after a Union Pacific crude oil train derailed in Mosier, Ore., causing an explosion and fire that forced evacuations in the area. She called that “a game changer for me” because the rail company involved was UP, the company that Valero would use, and the rail cars that punctured were newer, supposedly safer models.

“The railroad industry has not kept up with safety standards,” Strawbridge said.

Councilman Mark Hughes commended Valero for its safety record, but added: “That said, bad things do happen. At this point, there is too much uncertainty (for) me.”

The Valero refinery currently receives its oil via marine shipments and pipeline. The oil company applied in 2012 for a permit to build a rail transfer station on its refinery grounds to allow it to receive oil via train. Officials said it would help the refinery remain competitive in a changing oil industry.

The Benicia planning commission denied Valero’s request earlier this year, citing safety issues for up-rail cities, as well as concerns about negative impacts to a creek in Benicia and to the city’s nearby industrial park. The denial also included concern about the possibility of an explosion at the refinery.

Valero appealed that decision to the City Council. It also asked the federal Surface Transportation Board to issue a ruling saying that Benicia does not have the right to deny Valero’s request to build a rail transfer station. The oil company argued that federal interstate commerce regulations preempt cities from saying yes or no on rail-related projects.

In a statement issued Tuesday, the Surface Transportation Board denied Valero’s request, pointing out that Valero is not a railroad company, so it could not claim federal pre-emption protection for its transfer station project. The board issued further “guidance,” however, warning that cities cannot unreasonably interfere with rail transportation.

Several city council members said they were waiting for the transportation board’s comments before deciding on Valero’s request. The council instructed city staff to come back with a list of findings to support their denial. Several council members cautioned that those findings should focus on safety concerns at the Benicia site rather than risks to rail cities, saying that locally focused findings would be easier to defend in court if Valero sues the city.

A similar hearing is set for Thursday in San Luis Obispo County, where Phillips 66 is proposing a rail transfer station at its refinery that will allow it to ship crude oil via train, some of it likely through Sacramento and other northern California cities.

Crude By Rail, Local land use authority, Surface Transportation Board, Valero Benicia Refinery, Valero Crude By Rail

BREAKING: BENICIA CITY COUNCIL DENIES VALERO CRUDE BY RAIL!

By Roger Straw, September 21, 2016

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We did it! Opponents of Valero’s oil train proposal gathered in City Hall on the night of Benicia’s historic vote to STOP crude by rail. September 20, 2016. Photo by Emily Jovais

Surprise unanimous vote – no to oil trains

Valero’s dirty and dangerous proposal to bring in Bakken and Tar Sands crude oil on trains from North Dakota and Canada is dead.

Opponents of the proposal worried and wondered for months whether a 3rd swing vote could be found on Benicia’s 5-member City Council.  On Tuesday night, the wondering came to a sudden fairy tale conclusion: a unanimous vote to deny the land use permit and stop the project dead in its “tracks.”

beniciacitycouncil_2016-09-20
Benicia City Council, September 20, 2016. Photo by Constance Beutel.

Benicia’s City Council vote follows a February unanimous vote of its Planning Commission vote to deny the project.  Valero appealed the February decision to the Council, then received a six month delay to request backing from the federal Department of Transportation’s Surface Transportation Board (STB).

On Tuesday night, following a motion to deny by Council member Tom Campbell and seconded by Mayor Elizabeth Patterson, Council members Christina Strawbridge, Alan Schwartzman and Mark Hughes all expressed mounting concerns about on-site health, safety and environmental concerns.  City staff was directed to revise it’s resolution to deny the project, and to return for a final vote on October 4. [NOTE: A revised version of the resolution was presented at yesterday’s Council meeting, taking into account yesterday’s STB decision.  The revised version is not yet available in digital format on the City’s website.]

Which brings us to the OTHER SURPRISING, BREAKING NEWS:

Earlier on Tuesday, the Surface Transportation Board issued a statement denying Valero’s petition for a declaratory order. On  May 31, Valero submitted a petition asking the STB to rule that the Benicia Planning Commission’s unanimous February 11 decision denying Valero’s oil train proposal is preempted by federal law. Yesterday, the STB denied Valero’s petition for declaratory order.

“The Board finds here that there is no preemption because the Planning Commission’s decision does not attempt to regulate transportation by a “rail carrier.” The Board’s jurisdiction extends to rail-related activities that take place at transloading (or, as here, off-loading) facilities if the activities are performed by a rail carrier, the rail carrier holds out its own service through a third party that acts as the rail carrier’s agent, or the rail carrier exerts control over the third party’s operations.8 The record presented to the Board in this case, however, does not demonstrate that Valero is a rail carrier or that it is performing transportation-related activities on behalf of UP or any other rail carrier at its off-loading facility.”

Citing arguably similar case law, the STB repeatedly points out that Valero is not a “rail carrier” and that Valero would not be “performing offloading under the auspices of a rail carrier.”

Further, the STB rules that “Valero has not demonstrated that the Planning Commission’s decisions unreasonably interfere with UP’s common carrier operations.”  Under federal law, “accordingly, this situation…does not reflect undue interference with ‘transportation by rail carriers’ within the Board’s jurisdiction.”

The STB ruling also provided guidance on the issue of preemption as it applies to any mitigations and conditions of approval that directly impact rail operations.  The ruling strongly restated federal preemptory powers on any mitigation measures or conditions of approval that would “regulate Union Pacific’s rail operations on its lines.”  But it went on to say, “State and local regulation is permissible where it does not unreasonably interfere with rail transportation….Localities retain their reserved police powers to protect the public health and safety so long as their actions do not discriminate against rail carriers or unreasonably burden interstate commerce. For example, local electrical, plumbing, and fire codes are generally applicable.”

The STB’s guidance continues, “State and local action, however, must not have the effect of foreclosing or unduly restricting the rail carrier’s ability to conduct its operations or otherwise unreasonably burden interstate commerce.”  And finally, “If the offloading facility were eventually to be constructed but the EIR or the land use permit, or both, included mitigation conditions unreasonably interfering with UP’s future operations to the facility, any attempt to enforce such mitigation measures would be preempted…”

The exact definition or meaning of “foreclosing or unduly restricting” and “unreasonably interfering with” was not spelled out in yesterday’s STB ruling.

Crude By Rail, Surface Transportation Board, Valero Benicia Refinery, Valero Crude By Rail

BREAKING: Surface Transportation Board rejects Valero petition

By Roger Straw, September 21, 2016

On Tuesday, September 20, the US Department of Transportation’s Surface Transportation Board (STB) issued a statement denying a Valero Benicia Refinery petition for a declaratory order. Valero’s petition asked the STB to rule that the Benicia Planning Commission’s unanimous February 11 decision denying Valero’s oil train proposal is preempted by federal law protecting the authority of rail carriers. Yesterday the STB denied Valero’s petition in no uncertain terms.

“The Board finds here that there is no preemption because the Planning Commission’s decision does not attempt to regulate transportation by a “rail carrier.” The Board’s jurisdiction extends to rail-related activities that take place at transloading (or, as here, off-loading) facilities if the activities are performed by a rail carrier, the rail carrier holds out its own service through a third party that acts as the rail carrier’s agent, or the rail carrier exerts control over the third party’s operations.8 The record presented to the Board in this case, however, does not demonstrate that Valero is a rail carrier or that it is performing transportation-related activities on behalf of UP or any other rail carrier at its off-loading facility.”

Citing arguably similar case law, the STB repeatedly points out that Valero is not a “rail carrier” and that Valero would not be “performing offloading under the auspices of a rail carrier.”

Further, the STB rules that “Valero has not demonstrated that the Planning Commission’s decisions unreasonably interfere with UP’s common carrier operations.”  Under federal law, “accordingly, this situation…does not reflect undue interference with ‘transportation by rail carriers’ within the Board’s jurisdiction.”

The STB ruling also provided guidance on the issue of preemption as it applies to any mitigations and conditions of approval that directly impact rail operations.  The ruling strongly restated federal preemptory powers on any mitigation measures or conditions of approval that would “regulate Union Pacific’s rail operations on its lines.”  But it went on to say, “State and local regulation is permissible where it does not unreasonably interfere with rail transportation….Localities retain their reserved police powers to protect the public health and safety so long as their actions do not discriminate against rail carriers or unreasonably burden interstate commerce. For example, local electrical, plumbing, and fire codes are generally applicable.”

The STB’s guidance continues, “State and local action, however, must not have the effect of foreclosing or unduly restricting the rail carrier’s ability to conduct its operations or otherwise unreasonably burden interstate commerce.”  And finally, “If the offloading facility were eventually to be constructed but the EIR or the land use permit, or both, included mitigation conditions unreasonably interfering with UP’s future operations to the facility, any attempt to enforce such mitigation measures would be preempted…”

The exact definition or meaning of “foreclosing or unduly restricting” and “unreasonably interfering with” was not spelled out in yesterday’s STB ruling.

Benicia City Attorney Heather McLaughlin, Benicia City Council, Benicia City Manager, Benicia Planning Commission, Crude By Rail, Environmental Impacts, Federal pre-emption, Local land use authority, Local Regulation, On-site impacts, Surface Transportation Board, Valero Benicia Refinery, Valero Crude By Rail

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.)

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attend2016-09-20x

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.