Category Archives: Valero Benicia Appeal

Quick update on City Council meetings of April 18 and 19

By Roger Straw, April 19, 2016

Quick update on City Council meetings of Monday Apr 18 and Tuesday Apr 19

Council will meet tonightSeveral subscribers have asked what happened at last night’s City Council hearing on Valero Crude By Rail.

No vote was taken by Council. Members of the public were heard, followed by a 5-minute final comment by Valero attorney John Flynn and Valero Plant Manager Don Wilson.

Council followed this with questions for Valero and City staff. During this lengthy portion of the meeting, Council offered contract attorney Brad Hogin lengthy opportunities to defend against the recent letter of California Attorney General Kamala Harris, and to take issue with City staff’s recommendation to deny Valero’s request for a delay. (Seems when City staff agrees with Valero, Mr. Hogin does as well; but when City staff disagrees with Valero, Mr. Hogin will take up Valero’s cause.)

Council concluded the evening with questions for and answers by the traffic consultants, and their after-11pm powerpoint presentation.

Before it all started, Valero packed the hall with employees. There was a deliberate effort to position sign-bearing employees and their families in all the front and aisle seats. Valero supporters claim to have arrived at 4pm to crowd the door, and massed to deliberately keep STOP Crude By Rail people out.  Council chambers and overflow rooms were full of folks from both sides.

When Council opened to public comment, 28 (!) of the 30 who spoke were OPPOSED to the oil train proposal. Speaker after speaker came to the mike and offered knowledgeable and carefully reasoned analyses and passionate personal testimonies asking Council to deny Valero’s request for a delay and to uphold our Benicia Planning Commission’s unanimous denial of the EIR and the project.

UPDATE: The City HAS NOW POSTED video of all the speakers on April 18 at

If I can find time, I will excerpt some of the comments by video and/or in writing.

Tonight, Tues. Apr 19, Council will continue deliberations, asking questions and possibly arriving at formal votes on Valero’s request for delay, whether to certify the environmental report, and whether to approve or deny issuance of a land use permit.

Your presence is important.  This is surely one of City Council’s most important decisions of our times.

BERKELEY MAYOR TOM BATES: Letter opposing Valero Crude By Rail

By Roger Straw, April 18, 2016

BERKELEY MAYOR TOM BATES: Letter opposing Valero Crude By Rail

The Benicia Independent is in receipt of a letter sent today to the City of Benicia by Berkeley, CA Mayor Tom Bates.  Mayor Bates writes in opposition to certification and permitting of Valero’s proposal.

Here is the complete text of Mayor Bates’ one-page letter:

Office of the Mayor

April 18, 2016

Mayor Elizabeth Patterson City Council Members Tom Campbell, Mark Hughes, Alan Schwartzman, Christina Strawbridge Principal Planner Amy Million City of Benicia Benicia, California

Dear Mayor Patterson; Council Members Campbell, Hughes, Schwartzman, Strawbridge; and Ms. Million:

I ask you to uphold the Benicia Planning Commission’s decision to withhold certification from the Valero Refining Company’s Crude-by-Rail project. I believe the risks of this dangerous rail spur far outweigh possible benefits.

I agree with Attorney General Kamala Harris and environmental and community groups and that the Interstate Commerce Commission Termination Act does not prevent the City from assessing the transportation and public-safety risks when considering the project under its land-use authority.[1] The issue is one of local land use not pre-empted by federal regulation.

Another chief reason for not approving the project is that the CEQA analysis did not assess all of the project’s potential environmental impacts, including its impacts on other cities.[3] Allowing up to two 50-car trains of crude oil a day to come into the Valero refinery exposes Benicia and other communities to major safety risks, especially given the history of train derailment in recent times, both nationally and internationally.[2] An oil spill could be catastrophic to the local environment and waterways. Moreover, the transport of crude oil will emit toxic pollutants not adequately assessed in the environmental review, thus contaminating the air breathed by your residents and those of other communities as well.

The Berkeley City Council has reviewed the issue of transporting crude oil on the freight lines in the East Bay and has gone on record in unanimous opposition to such transport because of the unacceptable level of hazardous risk, including to Berkeley. The Union Pacific tracks are embedded in our West Berkeley community where people live, work and go to school.

I ask that you not approve this rail spur until the volatile organics are removed from these crude oil shipments and the railroads are upgraded to modern standards to handle such shipments.

Tom Bates, Mayor


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.

EAST BAY EXPRESS: Attorney General Harris: Benicia Has Power to Reject Oil Facility

Repost from the East Bay Express

Attorney General Harris: Benicia Has Power to Reject Oil Facility

By Jean Tepperman, April 15, 2016
Kamala Harris
California Attorney General Kamala Harris

In a strongly-worded letter sent Thursday to City of Benicia officials, California Deputy Attorney General Scott J. Lichtig wrote that Valero, the City of Benicia’s planning staff, and an outside attorney advising the city have all incorrectly interpreted the law, and that Benicia has the duty to regulate land use, and must weigh in on a proposal to expand a controversial Valero oil facility.

As the Express reported earlier this week, Valero’s original proposal was presented in 2013 as a simple plan to build a couple of rail spurs from the main railroad line to its refinery, and the city announced its intention to approve the plan without doing an environmental impact review. A torrent of opposition greeted this announcement, however. As a result, the city was forced to conduct three environmental impact reviews and hold public hearings. Then, last February, Benicia’s planning commission unanimously reversed approval for the project. Now the oil facility is pending a final decision by the city council.

But Valero and Bradley Hogin, a contract attorney advising the city, have claimed that the federal government’s authority over railroads means that local governments are not allowed to make regulations that affect rail traffic — even indirectly. And when they’re deciding on a local project, cities are not allowed to consider the impact of anything that happens on a rail line. The legal doctrine Hogin is referring to is called federal preemption. Assuming the city is preempted from blocking it’s oil-by-rail project, Valero has asked the Benicia City Council to delay consideration of the project while it seeks an opinion from the Surface Transportation Board, the federal agency that regulates railroads.

The Attorney General’s letter sent yesterday included a simple response to this interpretation of the law: “we disagree.”

The letter from Harris’s office not only disagreed with Valero and Hogin’s legal opinions, but also stated that to the contrary, the California Environmental Quality Act (CEQA) actually requires the city to consider indirect impacts of the project.

“A failure to include all of a project’s potential environmental impacts . . . or to disregard that information in making a decision like the one regarding Valero’s [project], not only would defeat the purpose of CEQA, but would be an abuse of discretion,” Lichtig wrote.

Harris’ letter explained at some length that federal authority over railroads applies only to railroads. The Surface Transportation Board, the federal agency that regulates railroads, “preempts state or local regulation only if the activity at issue is performed by a rail carrier,” the letter said.

Because Valero is proposing to build the project on its own land — rail spurs and related equipment to connect its refinery to the main railroad line — the Surface Transportation Board has no jurisdiction, Harris concluded.

The attorney general’s letter “clearly shows that Valero’s request for a delay was a distraction, designed to delay the inevitable vote to deny this project,” commented Andres Soto of Benicians for a Safe and Healthly Community.

The city council is planning to reconsider the Valero project on April 18 and 19. Opponents expect the letter to strengthen their case that the council should immediately vote to deny project approval, rather than wait on the federal Surface Transportation Board to weigh in, as Valero has requested.

“This letter has immense implications for similar oil-train fights in San Luis Obispo and around the country, where the issue of federal preemption has been at the forefront of local permitting battles,” wrote Ethan Buckner of, another organization that is opposing the Valero crude-by-rail project.