An Open Letter to Benicia City Councilmembers – About the Surface Transportation Board

Dear Councilmembers:

The bombshell request by Valero at your meeting on March 15, to have you issue a continuance of the Public Hearing of Valero’s appeal of the Benicia Planning Commission’s denial of Valero’s dangerous Crude By Rail project is out of order, without justification and should be denied out right.

Valero seeks a Declaratory Order and a Temporary Retraining Order AGAINST the City of Benicia from the federal Surface Transportation Board because of the lawful decision by the Benicia Planning Commission. Do not fall for this red herring. It is merely a distraction.

I was as stunned as you were to hear this request, and immediately presumed Valero had something up its sleeve that I had not anticipated. But now that I have researched the STB’s authority and activities, and spoken to a staff attorney for the STB itself, I am convinced more than ever that Valero’s request is the wrong question in the wrong forum at the wrong time. It is merely a distraction.

I went to the STB website and identified the agency’s specific duties and jurisdiction. Having read this, I then decided to contact the STB’s Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC). I called the OPAGAC and spoke to a staff attorney, Mr. Gabriel Mayer.

I discussed the possibility of Valero requesting the DO/TRO for its Crude By Rail project. Mr. Meyer informed me that the staff would examine the request, if received, and analyze whether it was an issue the staff or Board would decide, if at all. In any event the STB is not the final authority on federal pre-emption. The state and federal courts serve that purpose.

See below for copies of the STB Overview and ABOUT the Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC). I advise you to research this yourself. Do not rely on staff or the consultants.

“The Surface Transportation Board is an independent adjudicatory and economic-regulatory agency charged by Congress with resolving railroad rate and service disputes and reviewing proposed railroad mergers.”

While the Overview of the STB does identify that “The agency has authority to investigate rail service matters of regional and national significance”, my conversation with Mr. Meyer indicated it is specifically related to rail projects or projects that occur on railroad property, not off rail issues. Mr. Meyer further indicated there are many cases relative to the facts as I presented them to him. He sent me links to an STB decision from a case in Alexandria, VA, and Florida East Coast Ry Co v City of West Palm Beach, also attached.

Mr. Meyer also indicated that since Valero would be making that request, not Union Pacific AND because the project is entirely on Valero property within the City of Benicia’s sole jurisdiction, he could not foresee circumstances in which the STB would issue the DO/TRO.

Surely Valero knows this, so why would Valero even suggest such a ludicrous proposition? On this I will not speculate, but I can foresee what would happen if you DID decide to issue the continuance.

First, you be abrogating your responsibility to defend Benicia’s interest by submitting to a dubious authority to define Benicia’s local land use authority as a favor to a major corporation.

Second, because Valero has clearly lost the hearts and minds of Benicians and the vote of the Planning Commission, forestalling the project decision allows Valero to protect any councilmembers running for office who may be project supporters from the public wrath in November should they approve the project prior to the election.

Third, it sets a dangerous precedent of rewarding applicants who forum shop for an outside agency to exert its will over our community. You are under no obligation to grant this request and do not even need to take a vote on it. A hearing on this request for a continuance would just delay the inevitable – a hearing on the merits of the Valero Dangerous Crude By Rail Project itself. If Valero felt it needed this determination from the STB, it should have done so months ago. Why haven’t they asked California Attorney General Kamala Harris?

For Benicia’s sake, on April 4th, deny the request for a continuance, start public testimony on the project and make the right decision for Benicia’s future health and safety.

Overview of the STB
http://www.stb.dot.gov/stb/about/overview.html

The Surface Transportation Board is an independent adjudicatory and economic-regulatory agency charged by Congress with resolving railroad rate and service disputes and reviewing proposed railroad mergers. 

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. 

Created on January 1, 1996 by the ICC Termination Act of 1995, the Board is the successor to the former Interstate Commerce Commission (1887-1995) and was administratively aligned with the U.S. Department of Transportation from 1996 to mid-December 2015. The STB Reauthorization Act of 2015 established the STB as a wholly independent federal agency on December 18, 2015.
The STB staff is divided into the following offices.

• The Office of the General Counsel provides legal advice to the STB and defends agency actions that are challenged in court…
• The Office of Economics performs three primary functions: data gathering and reporting, economic and policy analysis in support of Board decisions, and applied economic analysis, most notably the development of the STB’s costing system. The Office of Economics audits Class I railroads.
• The Office of Environmental Analysis is responsible for undertaking environmental reviews of actions proposed before the agency, according to the national Environmental Policy Act and other environmental laws, and making environmental recommendations to the board.
• The Office of the Managing Director handles agency administrative matters, such as facility, budget, and personnel management.
• The Office of Proceedings researches and prepares draft decisions.
• The Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) serves as the public’s point of contact to the STB as well as the agency’s outreach arm. It works with members of Congress, the public and the media to answer questions and provide information about the STB’s procedures, regulations and actions. The office houses the Rail Customer and Public Assistance Program, which provides an informal venue for the private-sector resolution of shipper-railroad disputes, and also assists Board stakeholders seeking guidance in complying with Board decisions and regulations. The office also oversees all aspects of rail operations subject to the agency’s jurisdiction to ensure that such operations are consistent with each carrier’s statutory responsibilities. This office maintains the STB library.

ABOUT the Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC)
http://www.stb.dot.gov/stb/about/office_ocps.html

The Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) serves as the STB’s primary contact point with the public. The office interacts with members of Congress, executive agencies, state and local governments, news media, stakeholders, and other interested persons to provide information and informal guidance as to the STB’s procedures, regulations, and actions. OPAGAC also serves as the agency’s compliance arm, overseeing the actions of transportation carriers subject to the agency’s jurisdiction to ensure that these carriers are operating in compliance with their statutory responsibilities.

Office staff members are thoroughly knowledgeable about the STB and its processes, as well as the operational components of the rail industry. They are available to answer questions about the STB’s official decisions, pending cases, and the laws that we implement. OPAGAC does not provide opinions about how the STB Members will vote on a particular case, or when a case will be decided. 

OPAGAC houses the STB’s Rail Customer and Public Assistance Program. Initiated in 2000, the Program provides an informal venue for the private-sector resolution of shipper-railroad disputes, and also assists Board stakeholders seeking guidance in complying with Board decisions and regulations. At no cost to parties, the Program facilitates communication among the various segments of the rail-transportation industry, and encourages solutions to railroad operational and service issues without the use of litigation or the Board’s formal processes.