On Tuesday, September 20, the US Department of Transportation’s Surface Transportation Board (STB) issued a statementdenying 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.
Article 1: An Overview of the Crude-by-Rail project
(Click for a PDF version.)
Preface:
According to the proposed Valero crude-by-rail project, 100 rail cars a day of Bakken crude oil will be delivered to the Benicia Valero refinery every day, 365 days a year. As each rail car of Bakken crude oil has been shown to have the explosive power of two million sticks of dynamite,1 we believe that citizens of Benicia should be aware of and understand the risks associated with the project as only one crude by rail accident in Benicia, or elsewhere associated with this project, will negatively impact Benicia, forever.
Public Information As the proposed Valero crude-by-rail project, if implemented, will touch and impact many lives here in Benicia and beyond, we have decided to write a series of articles as public information to help the public understand the risks associated with the current engineering design of the Bakken crude by rail oil offloading facility and storage. This first article is a general overview of the Valero crude by rail project covering general risks and design concerns that will be viewed in more depth in later articles.2
Key Points Due to Bakken crude being a more volatile compound than regular crude oil, the transportation and storage of Bakken crude has special logistical considerations and should be treated differently than regular crude. The Bakken rail cars will be positioned within a few feet of local businesses. Local businesses and public areas are located within the blast zone of the rail cars. Millions of gallons of Bakken crude will be stored in existing tanks, which are spaced very close together and are located within a few hundred feet of Benicia residents, and in relatively close proximity to Robert Semple Elementary School.
Bakken crude oil is about as explosive as gasoline
Bakken crude oil (Bakken crude) comes from the Bakken formation, which is one of the largest contiguous deposits of oil and natural gas in the United States. The Bakken formation is an interbedded sequence of black shale, siltstone and sandstone that underlies large areas of northwestern North Dakota, northeastern Montana, southern Saskatchewan and southwestern Manitoba.3 Due to this rock structure, Bakken contains a considerable amount of volatile gases, which make Bakken crude about as flammable and explosive as gasoline.4 This simply means that unlike regular crude oil, for safety Bakken should be transported and stored in manner similar to other highly flammable liquids such as gasoline.
Fig. 1 Overview of the proposed crude-by-rail offloading and storage locations (Click to enlarge)
An aerial view of the proposed Valero crude by rail project
Figure 1 illustrates an overview of the proposed crude-by-rail offloading and storage locations.5 As is illustrated in figure 1, the proposed offloading location of the rail cars containing the Bakken crude would be located adjacent to the Valero property line parallel to East Channel road. The Valero refinery property line is separated from East Channel road by Sulfur Springs Creek, which is a small creek. Sulfur Springs Creek is not a buffer zone but is rather a wildlife habitat that is accessible to the public and is used by people for recreational and educational purposes.
As illustrated in the upper right corner of figure 1, when the rail cars arrive, they would be positioned in a line parallel to East Channel road in a location a few feet adjacent to the Valero property fence line, and positioned within a few feet of Sulfur Springs Creek, East Channel road, and existing parking lots and their associated businesses that front East Channel road.
As also illustrated in figure 1, the offloaded Bakken crude would be piped to existing crude storage tank farm located as shown in the lower right corner of figure 1. The tank farm contains crude storage tanks that appear to be between 100 and 220 feet across, and are capable of storing several millions of gallons of Bakken crude. As shown, the proposed Bakken crude tank farm is located within a few hundred feet from Benicia homes.
Moreover, a review of figure 1 shows that there is a buffer zone of undeveloped land (shown as light green lines for color and light gray for black and white) on the west and south sides of the refinery (except for the tank farm on the south-east corner). The proposed locations for the volatile Bakken crude to be shipped, offloaded, stored, and processed on the site are located on the sides of Valero refinery with the least buffer distance to adjacent non-Valero businesses, on the north side (along the East Channel road) and the south-east tank farm extension. Because of this, the design seems to be a step backwards in terms of land use planning, at the expense of the safety of Benicia citizens and local business.
The Bakken crude offloading facility proposal positions rail cars very close to other onsite explosive fuel sources and offsite local businesses
Figures 2A-C, illustrate the location and general design of the proposed Bakken crude offloading facility. Figure 2A shows an aerial view of Valero’s proposed Bakken crude offloading facility,6 figure 2B shows the plan view of the proposed facility, and figure 2C shows an aerial view of the proposed facility and its proximity to Benicia businesses, such as Conco, Praxair, Insight glass, and other businesses. As illustrated in figures 2A-2C, the rail cars delivering the Bakken crude would be positioned within about 200 feet of these and other local businesses that front East Channel road.
Figure 2A, An aerial view of Valero’s proposed Bakken crude offloading facility (click to enlarge)Figure 2B, the plan view of the proposed facilityFigure 2C, an aerial view of the proposed facility and its proximity to Benicia businesses, such as Conco, Praxair, Insight glass, and other businesses
The distance between the local business and the rail cars is critically close considering the potential power of a Bakken crude rail car explosion
Each rail car being used to deliver Bakken crude is designed to hold about 34,000 gallons of crude oil.7 Due to their shape and construction, rail cars can explode in pretty much any direction, so it is good to look at the case where the car explodes like a bomb, radially. Figure 3 shows a mapping of radiant heat from a rail car explosion.8 Each dotted circle represents the thermal energy that would be produced from an explosion of just one of the rail cars holding Bakken crude.
Figure 3, a mapping of radiant heat from a rail car explosion, showing Sulfur Springs Creek, East Channel road, and nearby businesses. (click to enlarge) fronting East Channel road are within the blast radiuses
Figure 3 also shows that Sulfur Springs Creek, East Channel road, and businesses fronting East Channel road are within the blast radiuses (blast zones), which could lead to serious injury or death for people located in and around those businesses, adults and children enjoying Sulfur Springs Creek, and people traveling along East Channel road adjacent to the rail cars. For example, expert Phyllis Fox states in her report to the city of Benicia, that “….based on this analysis, individuals along East Channel Road and Industrial Way within the thermal radiation 5 and 10 kW/m2 circles would suffer serious injuries and fatalities….”9
In addition, because of the close proximity, the adjacent onsite storage tanks, rail cars, and other facilities are within the blast zones. For example, figures 2A-C and 3 show that crude storage tanks 1739, 1720, 1716, 1718, and 1719 are within the blast zones. Because of the close proximity between the rail cars and the tanks, a blast from a rail car filled with Bakken crude would likely damage and/or ignite the fuel in at least one of those tanks which could lead to catastrophic chain reaction onsite explosions which would likely extend outside the Valero property line.
The current proposed design does not consider vulnerability to external attacks
Unfortunately, due to today’s terrorist activities, terrorism and acts by individuals on society must be considered when designing a project that if attacked could lead to significant injury or death of citizens. Here, as illustrated in figures 2A-2C, the location of the proposed facility and position of offloading rail cars is directly adjacent to a public street, East Channel road. As such, due to the relatively fragile construction of the rail cars and their explosive power when loaded with Bakken crude, the rail cars are vulnerable and easy targets to attack from persons positioned outside the refinery. For example, it would be easy for a person to position himself or herself on East Channel road and fire a weapon at one or more of the rail cars. Please note that a consequence of this added vulnerability would likely include countermeasures to restrict access to areas adjacent to the offloading facility thereby eroding civil liberties of Benicia businesses and residents to access public and private areas of the city.
Figure 4, a closer aerial view of the Bakken crude storage tanks. (click to enlarge)
Due to the change from regular crude to Bakken crude, the Bakken Storage tanks are spaced very close together and too close to the public for public safety:
Figure 4 provides a closer aerial view of the Bakken crude storage tanks. The storage tanks range from about 100 feet to about 220 feet in diameter and are spaced about 200 feet apart. These tanks were originally designed and spaced to hold regular crude oil. Due to the change in oil from regular crude oil to much more volatile Bakken crude, these storage tanks do not seem to be spaced far enough apart to mitigate the effects of a Bakken crude explosion. For example, according to a report from “World Academy of Science, Engineering and Technology” to mitigate the effects of an explosion the safe recommended distance between tanks holding gasoline is between 181 meters to 904 meters (594 feet to 2,966 feet).10
Further, one of the accident scenarios mentioned in the environmental impact report (EIR), a thermal tear, could result in injuries and fatalities at the nearest residence at Lansing Circle, approximately 2,000 feet northwest of the northern end of the Project site. An accident at Tanks S-1701 to S-1708, which would store the imported crude oil, could additionally result in injuries and fatalities in the Hillcrest neighborhood, about 1,000 feet from the nearest residence on Hillcrest Avenue.11 These accident scenarios should be considered.
What to do now:
If you are concerned about Valero’s crude-by-rail project, please contact the Benicia city council members to voice your concern. The contact information for the city of Benicia city council may be found at http://www.ci.benicia.ca.us.
Footnotes:
1 Bomb trains – the scariest threat you didn’t know about (retrieved 9/17/16 from http://www.chicagomag.com/Chicago-Magazine/May-2016/Bomb-Trains/) 2 Most of the information for this article may be found at http://www.ci.benicia.ca.us/index.asp?SEC=B7EDC93A-FFF0-4A14-9B1A-1C8563BC256A. 3 Bakken formation: News, Map, videos and information sources (retrieved 9/17/2016 from http://geology.com/articles/bakken-formation.shtml) 4 Why Bakken Oil Explodes. (retrieved 9/17/16 from http://www.sightline.org/2014/01/21/whybakken-oil-explodes) “The PHMSA findings were corroborated by the industry-oriented Bakken Shale blog, calling it “flammable like gasoline.” The “flash point”—the lowest temperature at which ignition can occur—is lower for Bakken oil than for lower grade crude oils, which means that Bakken crude is particularly flammable. The post also warns that when flammable gases are dissolved in oil, the oil should be “degasified” before transportation.” 5 Nov. 2013 Valero Ap., Figure 2-2 6 Valero crude by rail project plans (retrieved 9/17/16 from http://www.ci.benicia.ca.us/vertical/sites/%7BF991A639-AAED-4E1A-9735-86EA195E2C8D%7D/uploads/Project_Plans_ONLINE_VERSION.pdf) 7 DOT-111 tank car (retrieved 9/17/16 from https://en.wikipedia.org/wiki/DOT-111_tank_car) 8 Figure 7A. Comments on Valero’s Appeal of Planning Commission’s Denial of Valero Crude-by-Rail Project by Dr. Phyllis Fox, Ph.D., PE, April 4, 2016. 9 Comments on Valero’s Appeal of Planning Commission’s Denial of Valero Crude-by-Rail Project by Dr. Phyllis Fox, Ph.D., PE, April 4, 2016. Page 31. 10 World Academy of Science, Engineering and Technology International Journal of Chemical, Molecular, Nuclear, Materials and Metallurgical Engineering Vol:8, No:2, 2014 11 Comments on Valero’s Appeal of Planning Commission’s Denial of Valero Crude-by-Rail Project by Dr. Phyllis Fox, Ph.D., PE, April 4, 2016. Page 27.
New staff report again recommends overturning Planning Commission’s unanimous decision
On 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.
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.
Opponents of Valero’s dirty and dangerous proposal are trying to plan for the City Council’s September 20 meeting when Crude By Rail will again be on the agenda, but…
no one knows at this time whether the STB will have issued an advisory or declined to do so, and if so, what the STB advice will be, and
no one is sure exactly what procedures will guide Council and the public in either case!
The latest guidance from City Attorney Heather McLaughlin is complicated, a bit confusing, and perhaps inconclusive. In response to Benicia resident Marilyn Bardet’s inquiry, McLaughlin wrote on 8/30:
I am sorry but I have to give you the lawyerly “it depends” answer at this point. It will depend if we get an answer from the STB. If we don’t get an answer, the Council already closed the public comment. They would have to take action to re-open the hearing. If we do get an answer, the Council would have to open the public hearing to allow comment only on the new information from the STB. The Council discussion is a continuance from the last appeal hearing. They specifically continued the item to September 20th.
Then on 8/31, McLaughlin added:
If the STB responds in time for the meeting on the 20th, the Council would open the hearing for comments as it relates to the STB response. Public comments would have to relate to the response. I can imagine a range of public comments along the lines of the STB’s response means the EIR must be redone, or that the EIR is good enough, or that some aspect of it must be redone, or that some permit condition should be applied to address the STB response. As long as comments relate to the STB response, then the comment is ok. Comments on the EIR or permitting that do not relate to the STB response would not fit in since the hearing for general comments has already happened.
Quickie Background…
Last February, after 3 years of study, public and expert comments and lengthy hearings, Benicia’s Planning Commission voted unanimously to deny Valero Crude by Rail. Valero immediately appealed the decision to Benicia’s City Council.
In March, as Valero presented its appeal to the City Council, the refinery’s attorney surprised everyone by asking for a delay so that it could ask the federal Surface Transportation Board (STB) for a declaratory order favoring Valero’s proposal. Valero’s petition asks the STB to clarify whether the Interstate Commerce Commission Termination Act, or ICCTA, prohibits the city from taking rail-related impacts into account while deciding on the project.
After a delay of its own, Valero submitted its petition to the STB on May 31. On Jun 10 the STB granted an extension for public comments until July 8. The STB has received multiple letters pro and con on Valero’s petition. Among the many letters is a response by the City of Benicia to Valero’s petition, in which the City asserts local land use permitting authority.
No one knows if – and when – the STB will give an opinion; and if the STB does weigh in, no one knows to what extent they will support Valero or uphold local land use permitting authority.
For complete background on the Appeal and STB, see the Benicia Independent’s APPEAL PAGE. For public comments and City transcripts, see the Benicia Independent’s PROJECT REVIEW PAGES. All things Valero CBR can also be found on the City of Benicia website.
On Thursday, City of Benicia staff released the 
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