Repost from the Davis Enterprise FORUM

Benicia council calls a timeout on oil train issue

On Tuesday night, a majority of the Benicia City Council voted to allow the Valero refinery a continuance on hearings on its oil train project request. Valero wants the delay to petition the federal Surface Transportation Board for clarification on federal pre-emption and indirect pre-emption of its project.

Although Valero is an oil refinery, now calling itself a “shipper,” the crude oil will be traveling in rail cars on Union Pacific tracks. However, the project itself will be on Valero property within the city of Benicia.

The Surface Transportation Board’s website states this about its oversight:

“The agency has jurisdiction over railroad rate and service issues and rail restructuring transactions (mergers, line sales, line construction and line abandonments); certain trucking company, moving van and non-contiguous ocean shipping company rate matters; certain intercity passenger bus company structure, financial and operational matters; and rates and services of certain pipelines not regulated by the Federal Energy Regulatory Commission.

“The agency has authority to investigate rail service matters of regional and national significance.”

Federal pre-emption dates to the founding of the railroads. Only the federal government has regulatory authority over railroads. Cities and states cannot create regulations regarding railroads.

The majority of the Benicia City Council members commented that they did not have enough information on pre-emption to move forward with a vote on the environmental impact report and the use permit. Benicia Mayor Elizabeth Patterson attempted to point out that there is sufficient evidence to know how the STB would rule and that the council should move forward. In her view, there are other issues and projects on which city staff need to spend time.

By making this decision, the council chose to ignore three years of work and a unanimous opposition decision by its own Planning Commission; public comments by many of their own residents; countless hours of staff time; testimony by up- and down-rail elected officials, agencies and citizens; comments and recommendations by experts from various air quality boards; opinions by lawyers from several nonprofit agencies; and expert comments from the office of California Attorney General Kamala Harris.

Based on their questions and comments, it was apparent that those council members had not read the EIR and the subsequent public comments. Rather, they chose to accept the opinion of the city’s contract attorney in lieu of doing their homework.

By allowing Valero this delay to submit a petition to the Surface Transportation Board, the council has opened the door to abdicating its authority to determine its own land-use policy within the city boundaries. The EIR likely will become stale and all the work that went into that document might need to be redone. Further, any opinion offered by the STB still could be challenged in court.

Whether or not an opinion has been made by the STB, the Benicia City Council will reconvene hearings on Sept. 21. Two members insist they must have this information to make a decision and want to reconsider what to do if the decision is not returned by this date.

Up- and down-rail communities, agencies and activists will be closely following the process.

Repost (lead-in only) from Argus Media

Benicia seeks federal guidance on Valero rail

Houston, 21 April (Argus) — Officials in Benicia, California, have delayed a decision on an embattled Valero rail project proposal for up to five months to seek clarification from federal regulators.

The Benicia city council on 19 April voted to delay a decision until as late as 20 September as they seek an opinion from the Surface Transportation Board on whether federal rail regulations preempted local control over land use involving a proposed 70,000 b/d railed crude unloading facility at Valero’s 170,000 b/d refinery in the city.

“That is a precious decision-making ability that we have as a city and I wouldn’t give that up easily,” Benicia mayor Elizabeth Patterson, a project opponent, said before voting against the decision during the meeting. “I will go down fighting.”  (continued…)

Repost from the Vallejo Times-Herald

Benicia: Valero crude oil by rail decision delayed to September

BENICIA — The public will have to wait until at least late summer for a possible resolution on Valero Benicia Refinery’s controversial crude-by-rail project, after the City Council voted 3-2 to postpone a decision to Sept. 20.

Vice Mayor Mark Hughes, Councilwoman Christina Strawbridge and Councilman Alan Schwartzman said they need more information to make any decision on the project, while Mayor Elizabeth Patterson and Councilman Tom Campbell said they are ready to move forward.

In December 2012, the refinery submitted an application seeking permission to build infrastructure to bring two 50-car trains a day carrying up to 70,000 barrels of North American crude oil into Benicia. The issue has sparked intense debate in the Solano County city amid growing environmental and safety concerns surrounding crude-by-rail traffic nationwide.

The issue of postponement was raised when Valero submitted the request last month during the first day of the appeal hearing. An attorney representing the company said the refinery is seeking to send a request for a declaratory order from the Surface Transportation Board, or STB, on the issue of federal pre-emption in regards to the project.

“I’m really frustrated with the whole pre-emption issue,” Schwartzman said following Tuesday’s vote. “If there’s an opportunity to narrow down that pre-emption issue, then gosh darn it, I want that opportunity. Let’s ask (Surface Transportation Board) and get some type of feedback. I know this is an emotional issue … but in my mind, at this particular point, there’s a lot of uncertainty.”

Much of the discussion during the Planning Commission hearing on the project revolved around federal pre-emption.

City staff and Valero asserted that the city is legally prohibited from imposing any mitigation measures on rail-related impacts, or denying the project because of those reasons. However, the commission unanimously voted to deny the project and declined to certify its environmental report citing vagueness in the law.

The report indicates that all 11 “significant and unavoidable” impacts are rail-related.

Valero officials said they plan to send the request to STB in 30 days, and estimated that an order will be issued within six months.

If no response is received by Sept. 20, the council would decide if it would wait further or make a decision based on current information.

“We are glad that the council took up our recommendation to seek more info from STB,” said Chris Howe, Valero’s health, safety and environment director.

Patterson and Campbell, who opposed the postponement, also said they were going to vote to deny the permit use application based on the information given. While Patterson said she was not going to vote to certify the project’s environmental impact report, Campbell said he would.

Meanwhile, state Attorney General Kamala Harris’ office sent a strongly worded letter to the city earlier this month saying it disagrees with the city staff and Valero’s conclusion that the Interstate Commerce Commission Termination ACT, or ICCTA, prohibits the city from taking rail-related impacts into account while deciding on the project.