Category Archives: Surface Transportation Board

Benicia City Attorney Heather McLaughlin, Benicia City Council, California Attorney General Kamala Harris, Crude By Rail, Federal pre-emption, Surface Transportation Board, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

CRAIG SNIDER: An interesting evening at City Hall last night

Nextdoor_logoRepost from Nextdoor, Benicia CA

An interesting evening at City Hall last night

By Craig Snider, April 19, 2016

It was an interesting evening at City Hall last night.

According to Valero, and the “City’s” Valero-funded contract attorney; the City of Benicia has no right to deny the project, because Valero is a “shipper” and when a shipper uses a train to ship their goods, under federal law, nobody can stop them. That’s it in a nutshell.

In other words, if Valero wanted to ship nuclear waste to their refinery and store it there, the City can do nothing to stop them. End of discussion.

Someone needs to tell the citizens of Oakland to stop wasting their time fighting the Utah coal proposal since that city is apparently powerless to prevent a coal exporter from setting up shop and shipping coal out of the Port of Oakland.

Fortunately, our Attorney General and many other knowledgeable attorneys have informed the Council that this interpretation is wrong. A shipper’s rights do not trump State, County, or City zoning laws.

Unfortunately (for those of us that are tired of this issue), three City Council members agreed to postpone the decision until an “opinion” can be obtained from the Federal Surface Transportation Board which may or may not choose to offer their opinion regarding our situation.

Their opinion, if they offer it, is just that. And the City Council will still have to weigh the merits of the various arguments on either side of this issue and choose.

And in either case, a suit will likely follow.

Crude By Rail, Federal pre-emption, Local Regulation, Surface Transportation Board, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail, Valero request for delay

BREAKING: Benicia City Council approves Valero’s request to delay

By Roger Straw, April 19, 2016, 10:20 pm

Benicia City Council approves Valero’s request to delay

Valero will seek a declaratory order from the federal Surface Transportation Board

After posing questions and hearing additional testimony from a Union Pacific railroad executive, Valero executives, and the City’s contract attorney, Bradley Hogin, Benicia’s City Council members offered their opinions and took a 3-2 vote to approve a “continuance” until September 21, to allow Valero to petition the Surface Transportation Board (STB) for a declaratory order in search of clarity on the federally pre-empted limits on a city when considering a land use permit for a refinery’s crude by rail proposal.

Valero surprised everyone when its attorney asked for the delay at the Council’s March 15 meeting.

Council members Alan Schwartzman, Mark Hughes and Christina Strawbridge voted in favor of delay, stating that they needed clarifying information from the STB in order to make an informed decision.  Council member Campbell and Mayor Patterson voted against delay, stating that Council already has sufficient information to make a decision now, and that nothing would be gained by an STB opinion that could still be challenged in court.

During the continuance, (if I understand correctly), public comment will remain closed.  Nevertheless, it is likely the City will receive additional written comments and add them to the official record, as it has done in the past.

After the STB acts to deny Valero’s petition, or should it accept the petition and issue an opinion, the Council will reconvene hearings and vote whether or not to certify the environmental report and whether to approve or deny the land use permit for the project.

Benicia City Council, Crude By Rail, Federal pre-emption, Local Regulation, Public Comment, Public Health, Public permitting, Public Safety, Surface Transportation Board, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

BENICIA CITY COUNCIL AGENDA for Apr 18 includes pro-Valero Staff Report and 11 attachments

By Roger Straw, April 17, 2016

Council Agenda for Apr 18 – staff documents in support of Valero

Don’t fail to notice the significance of the Agenda for the Benicia City Council hearing on Monday, April 18. The Agenda was published on April 13 without any mention that there was a strongly worded staff report supporting Valero. The agenda has 11 attachments, linked below.

  • Crude By Rail Staff Report 4-18-2016 FINAL.pdf (This 19-page document includes 42 questions raised by Council members with staff responses, all supporting Valero’s proposal.  Staff concludes with “Staff’s recommendation for the Valero Crude by Rail Project FEIR and Use permit has not altered.”)
  • Attachment 1- Memo Surface Transportation Board Process (2-page memo by Benicia’s consulting attorney Brad Hogin, defining STB Declaratory Orders, and laying out procedures of the STB. Hogin points out that the STB does sometimes institute “declaratory order proceedings based on petitions filed by parties that are not rail carriers.”)
  • Attachment 3- MRS Response Letter to Fox Comments (8-page letter by the City’s consultant, Marine Research Specialists, defending its “Quantitative Risk Analysis” against criticism by Dr. Phyllis Fox.)
  • Attachment 2 – ESA Response Memo to Fox Comments (5-page letter by the City’s consultant, ESA, defending its against criticism by Dr. Phyllis Fox on air quality and flooding.)
  • Attachment 4 – Barkan Memo (4-page letter on crude by rail statistics by Christopher P.L. Barkan, professor at the University of Illinois at Urbana-Champaign. This is actually a very interesting document, with several tables of figures in response to questions about derailments, spills and explosions.)
  • Attachment 5- Andrew Chang Response Letter (4-page letter defending its report on fiscal and economic impacts.  Admits to no errors or overstatements.)
  • Attachment 6- SLO References to Preemption  (52 pages from the San Luis Obispo environmental report, concluding with the findings for denial.)
  • Attachment 7 -SEA-3, Inc. Surface Transportation Board Decision (7-page STB denial of a declaratory order petition, with guidance.)
  • Attachment 8 – Project Train Valero Property Diagram (1 page with two drawings showing the length of a 50-car crude oil train and the proposed unloading rack on Valero’s property.)
  • Attachment 9 – October 1, 2013 Council Report for Hogin’s Contract (2 page amendment providing for additional funds beyond $50,000 for consulting attorney Hogin to work on Valero Crude by Rail.  Glowing statements are made about his qualifications.  An attached Statement of Qualifications is not included in this PDF.)
  • Attachment 10- Public Comments Submitted April 7-12 2016 (Index on p. 1 shows letters from the City of Berkeley, Communities for a Better Environment, Benicians for a Safe and Healthy Community and 15 individuals, every one of which oppose Valero’s proposal.  In addition, the document shows a sample of an “identical letter” and lists several individuals there with no indication whether they submitted such an identical letter or some other letter.)
  • Attachment 11 – Speakers List for April 18 (This is the City’s  lists of individuals who filled out a comment card, including those who have not had an opportunity to speak and will be called on during the April 18, 2016 meeting, and those who already had a turn to speak during the April 4th or April 6th meetings, and will not be eligible to speak again.
Benicia City Council, Benicia city staff, California Attorney General Kamala Harris, Crude By Rail, Environmental Impacts, Interstate Commerce Commission Termination ACT (ICCTA), Surface Transportation Board, Valero Benicia Refinery, Valero Crude By Rail

VALLEJO TIMES-HERALD: Attorney general letter disagrees with Valero, Benicia city staff

Repost from the Vallejo Times-Herald
(Also appearing in the East Bay Times, the San Jose Mercury News, the Santa Cruz Sentinel and the Monterey Herald)

Attorney general letter disagrees with Valero, Benicia city staff

By Irma Widjojo, 04/15/16, 5:43 PM PDT

Benicia >> The Office of Attorney General Kamala Harris has sent a strongly worded letter to the City of Benicia regarding Valero Benicia Refinery’s proposed crude by rail project.

In the letter, dated Thursday, Harris’ office disagrees with the city staff and Valero’s conclusion that Interstate Commerce Commission Termination ACT, or ICCTA, prohibits the city from taking rail-related impacts into account while deciding on the project.

The issue of preemption has been the crux of the discussion regarding the project. In March, the Planning Commission has denied the use permit application and declined to certify the project’s Environmental Impact Report, or EIR.

In its appeal, Valero states that it agrees with the city staff’s conclusion that the city is legally prohibited from making that decision based on the 11 “unavoidable and significant” rail-related impacts, which were included in the report.

In the letter written by Deputy Attorney General Scott Lichtig, the office said the conclusion is incorrect.

“… ICCTA does not preempt or constrain the city’s discretionary decision-making authority where, as here, the city is exercising that authority with respect to a project taken by an oil company that is not subject to the jurisdiction of the Surface Transportation Board,” the letter states.

In 2014, the office also sent a letter to the city urging it to correct “deficiencies” in the draft EIR.

“In fact, for Benicia to turn a blind eye to the most serious of the project’s environmental impacts, merely because they flow from federally regulated rail operations, would be contrary to both state and federal law,” according to the most recent letter.

On Monday, or if necessary Tuesday, the city council is set to meet to make a decision on Valero’s appeal and its request to postpone the decision making until the company receives a possible declarative order from the State Transportation Board regarding the issue of preemption in the project.

Many public members have spoken in support or opposition to the project in the beginning of the month, and the public comment session will continue on Monday.

When everyone is heard, Valero will have five minutes to make its case, followed by questions from the council before it makes its decision.

Valero is seeking the permit to build infrastructure on site to allow the company bring in two 50-car trains a day carrying up to 70,000 barrels of North American crude oil. The company’s oil is now being transported into the city by marine vessels and pipeline.

Each meeting is set for 7 p.m. at City Hall, 250 E. L St.