Category Archives: Valero Crude By Rail

Benicia City Council, Benicia city staff, Benicia Planning Commission, Crude By Rail, Local land use authority, Local Regulation, Surface Transportation Board, U.S. Department of Transportation, Valero Benicia Refinery, Valero Crude By Rail

Benicia Mayor outlines possible outcomes for City Council on Sept 20

Repost of an E-Alert by Benicia Mayor Elizabeth Patterson, September 18, 2016
[Editor: I would expect considerable discussion on Tuesday to center on whether to continue waiting for a Surface Transportation Board response to Valero’s end run around local permitting authority. Valero has been openly urging Council to continue to delay making a decision.  City staff and the Mayor are certainly expecting a motion to delay; 3 of the 4 possible scenarios outlined below center on continuation. (Don’t miss the quote from Christopher Hart, chairperson of the National Transportation Safety Board, and Mayor Patterson’s question, at the bottom of this E-Alert.)  – RS]

elizabethpatterson
AN E-ALERT FROM YOUR MAYOR,
ELIZABETH PATTERSON
Benicia, California

 

The Tuesday Council meeting’s main item is the decision on Valero Crude by Rail EIR and Land Use Permit. The complete packet is online here.

The following are potential scenarios for action:

  1. Valero could submit a formal written request for continuation of the appeal in order for the Federal Surface Transportation Board to render a decision on federal preemption of local land use authority. This request would be considered under the Open Government Ordinance as “new and substantial information” and the Council would decide whether or not this request is new and substantial. If the council votes in the majority, the consideration for delay for STB decision would be on the next agenda. The council would then have to decide whether to proceed or not with the action on the current agenda which is the appeal of the Planning Commission denial of the project. Staff is recommending approving the appeal.
  2. No request in writing for continuation but during the council consideration of the Valero appeal, Valero could request a “point of order” and ask for council consideration of continuing the delay. Council again would have to act on the point of order before proceeding to the agenda item. There could be the same outcome as in #1.
  3. No request for continuation by Valero and consideration of the appeal of the denial by the Planning Commission. A councilmember could request a continuation but council cannot continue the item without Valero’s consent – so a council member could ask for a continuation and if Valero agrees the consideration of continuation would have to be at the next meeting. See #1 for steps.
  4. No request for continuation by anyone. The council will hear staff report – there is no public comment on this item unless there is demonstrably new and substantial information (see above for steps by council for consideration). So the decision can be as follows:
    1. motion and second to deny appeal and thus let stand Planning Commission denial of the land use permit with or without prejudice (with means a new application of the same project must wait one year; without means no such restriction. A modified project would be considered a new application).
    2. motion and second to consider certification of Final Environmental Impact Report followed by a motion to deny appeal.
    3. motion to certify the FEIR and grant the appeal and approve the land use permit.
“We’ve been lucky thus far that derailments involving flammable liquids in America have not yet occurred in a populated area,” Hart [current head of the National Transportation Safety Board] said. “But an American version of Lac-Mégantic could happen at any time. Instead of happening out in the middle of a wheat field it could happen in the middle of a big city.”
The Bakken oil train explosion in Lac-Mégantic, Quebec, Canada, killed 47 people. As these safety issues are ignored, dismissed, or continued to be studied, an important question remains: How long until that luck runs out?
Benicia City Council, Benicia city staff, Benicia Planning Commission, Crude By Rail, Local land use authority, Local Regulation, Valero Benicia Refinery, Valero Crude By Rail

Benicia City Council: Sept. 20 agenda & attachments

By Roger Straw, September 15, 2016
Note: Find a full listing of links to the staff report and attachments below, and my summary and analysis here: “City staff again recommends approval of Valero oil trains – Council to vote on Tues, Sept 20.”  – RS

Yesterday, the City of Benicia released its agenda for the upcoming City Council meeting, including materials related to the continuation of Council discussions on Valero Crude By Rail.  See Item 15.A. on page 7.

Next Tuesday, our City Council can take a FINAL vote on Valero’s dirty and dangerous oil train proposal.

The report by Community Development Director Christina Ratcliffe gives City Council members four alternative courses of action and supplies every document needed to accomplish each alternative:

    1. Deny Valero’s appeal of the Planning Commission’s unanimous decision – thereby denying the project and stopping crude by rail in Benicia.
    2. Uphold Valero’s appeal and approve oil trains in Benicia.
    3. Send the Environmental Impact Report (EIR) back to City staff for yet another go-round.
    4. Take no action until after the federal Surface Transportation Board weighs in.

The agenda includes the staff report and 10 attachments, as follows:

  1. Draft Resolution FEIR
  2. Exhibit A-1 Statement of Overriding Considerations
  3. Exhibit B MMRP (Mitigation Monitoring and Reporting Program)
  4. Draft Resolution Use Permit , Project Approval
  5. Draft Resolution Use Permit, Project Denial
  6. Valero Submittal – Clarifiation and Rebuttal Cuffel 091316 (Rebuttal of Dr. Phyllis Fox’ expert analysis)
  7. Valero Benicia Sulfur Springs Setback Evaluation Memo (Note this is a huge PDF file, which may appear blank on your screen, displaying content off to the right.)
  8. Hogin Memo STB Process (Previously submitted 4/8/16)
  9. Valero’s Petition to STB for Declaratory Order FILED May 31, 2016
  10. City of Benicia STB Reply July 7, 2016

For a Benicia Independent analysis, see City staff again recommends approval of Valero oil trains – Council to vote on Tues, Sept 20.

Crude By Rail, Local Regulation, Public permitting, Public Safety, Valero Benicia Refinery, Valero Crude By Rail

Benician C. Bart Sullivan sends letter to Cal. Attorney General

By Roger Straw, September 2, 2016
[Editor:  This post originally appeared with an error that has since been corrected.  C. Bart Sullivan is not an attorney.  The error was our own, not that of Mr. Sullivan.  We apologize for our error.  – RS]

Local Benicia engineer C. Bart Sullivan petitions Attorney General Kamala Harris, points out serious flaws in Valero CBR design

On August 9, local Benicia engineer C. Bart Sullivan wrote the following letter asking for help from California Attorney General Kamala Harris.  Sullivan’s comments focus on the lack of adequate safety setbacks and potential catastrophic dangers within Valero’s facility and nearby facilities in the Benicia Industrial Park should the plan be approved.

This approach is highly significant, showing that even if federal law prevents the City of Benicia from denying a permit based on rail impacts (a highly disputed contention), there are nonetheless enough significant and serious flaws in Valero’s onsite engineering designs to allow the City to refuse the permit and deny the project.

Text of Mr. Sullivan’s letter follows.  Mr. Sullivan has allowed the Benicia Independent to reprint this letter with the understanding that it is “his personal opinion, informational only, and is not to be construed as legal advice.”

August 9, 2016

California Attorney General Kamala D. Harris
Office of the Attorney General
1300 “I” Street
Sacramento, CA 95814-2919

RE: Valero – Crude By Rail Project

Dear California Attorney General Harris:

Benicia needs your help. I am deeply concerned about the safety of the Valero Crude by Rail Project and the oral dismissal of your legal advice to the city of Benicia by the city contract attorney, Bradley R. Hogin, Esq.

Based on the fact that Valero is the largest private employer in Benicia, the city staff is in favor of the project, and due to the oral legal advice provided by Mr. Hogin implying the futility of any action by the city, from my perspective, it appears that Benicia City Council will vote to approve the project.

From my personal expertise as an engineer with refinery experience, and based on expert opinions of professional engineers who have reviewed the proposed project design, Valero’s proposed crude-by-rail project design is extremely dangerous. Specifically, the engineering design does not allow for sufficient safety setbacks (the distance between the rail cars and oil storage tanks, etc.) to mitigate the likelihood of a chain reaction explosion within the refinery. Thus, due to the massive explosive potential of each rail car and the close proximity of the rail cars to other explosive fuel sources, it is highly likely that an explosion of only one rail car within the refinery will escalate into larger explosions extending beyond Valero property and into the city of Benicia.

Therefore, because of the lack of safety setbacks and the number of proposed rail cars entering the facility on a daily basis, the likelihood of catastrophic explosions at the refinery in Benicia puts hundreds, if not thousands, of Benicia residents directly in harm’s way. Unfortunately, the city has no way to mitigate this terrible danger, let alone mitigate other safety and health issues such as additional health impacts from the predicted increase in local air pollution.

Valero has categorically asserted that Benicia City Council cannot look to these unmitigable health and safety issues to deny the project due to the law of federal preemption. Based on Valero’s assertion, I wanted to bring comments from Mr. Hogin and Mr. John Flynn, Esq., Valero’s attorney, to your attention.1

In his testimony to the Benicia City Council, Mr. Hogin,  advised that the city had no recourse under federal preemption to deny the project, summarily dismissed your letter of April 14, 2016, and did not provide the city with any legal advice on how to challenge the project under Constitutional law. For example, Mr. Hogin did not provide any legal advice concerning how the proposed project could be challenged under the 10th Amendment or the Dormant Commerce Clause (DCC) using the rational basis test for the legitimate noneconomic purpose of protecting the health and safety of Benicia residents.

For your convenience, the following are recorded oral statements by Mr. Hogin and Mr. Flynn. I am deeply troubled by these statements, which I consider to be biased legal advice given to the Benicia city council April 18, 2016.

During the Benicia City Council meeting, Monday April 18, 2016, Mr. Hogin stated:

“The Attorney General letter really missed the point. The issue here is whether a City can regulate rail impacts indirectly by imposing requirements on a shipper that address rail impacts, as opposed to impacts from the shipper’s facility, and the Attorney General opinion really doesn’t discuss that.

The Attorney General opinion only discusses cases where cities were addressing impacts from a transloading facility that was owned and operated by a private party.

In none of the cases where — that the Attorney General cites were any of the cities addressing rail impacts…”

Moreover, during the same Benicia City Council meeting, Mr. Flynn stated:

“As for the AG’s letter, I’m going to choose my words very carefully because I have a lot of respect for Kamala Harris and I have a lot of respect for her office, but that letter on the issue of preemption is dead wrong. Your attorney — the advice that you’ve been given by your attorney is exactly right. If you follow the advice that’s been given to you by Kamala Harris, you’ll be making a terrible mistake, a terrible legal error.

Somebody has suggested that Valero, because it’s a — it’s a refinery, doesn’t have any standing to ask for a Declaratory Order from the — from the Surface Transportation Board. That, also, is dead wrong.

You don’t have to be a railroad to get a Declaratory Order from the Surface Transportation Board, and that’s been proven on many occasions as a result of the fact that the Surface Transportation Board has, in fact, issued a number of declaratory orders as the result of requests made by nonrail carriers.

Valero is a shipper. A “shipper” is a term of art under federal law. So we do have standing to request that Declaratory Order.” (Emphasis added)

Even though Mr. Hogin briefly mentioned later in his discourse that the city could look to non-rail related impacts to deny the project, the above quoted transcript of the oral arguments do not reflect the serious and biased tone of the legal advice as orally presented to the Benicia City Council. Specifically, the oral presentation by Mr. Hogin implied that any legal recourse would be futile, and that the city of Benicia has no other option but to approve the project.

While the legal advice from both attorneys concerns me greatly, Mr. Hogin’s legal advice seems especially biased toward Valero’s position, and does not seem to be in the best interest of his client, the city of Benicia.

Thus, Mr. Hogin provided legal advice in a manner strongly advocating Valero’s position without formulating a defensible and well thought out argument for the case opposing Valero’s position for the city to consider.

Based on the above, I emphatically urge you and your staff to personally visit the city of Benicia to reiterate your position. I implore you to please help the city of Benicia realize that they have the power to protect their citizens, and without taking your advice they would be making a terrible legal error and would be breaching their duty to the people of Benicia and beyond.

Sincerely,

C. Bart Sullivan, E.E, J.D.

1 REPORTER’S TRANSCRIPT OF RECORDED PROCEEDINGS IN RE VALERO CRUDE BY RAIL PROJECT HEARING AND PUBLIC COMMENTS (http://www.ci.benicia.ca.us/vertical/sites/%7BF991A639-AAED-4E1A-9735-86EA195E2C8D%7D/uploads/City_Council_April_18_2016_Transcript.pdf)
Benicia City Council, Benicia Planning Commission, Crude By Rail, Federal pre-emption, Local land use authority, Local Regulation, Phillips 66 Nipomo Mesa refinery, San Luis Obispo County, Santa Maria Refinery, Surface Transportation Board, Valero Benicia Refinery, Valero Crude By Rail

Phillips 66 seeks six-month delay in San Luis Obispo rail spur hearing

Repost from the New Times, San Luis Obispo, CA

Phillips 66 seeks six-month delay in rail spur hearing

By Chris McGuinness, August 18, 2016

The oil company proposing one of SLO County’s most controversial projects is asking the SLO County Planning Commission to wait six months before taking up the issue again.

After months of lengthy hearings, Phillips 66 requested that a planned commission meeting on its proposed rail spur extension project scheduled for Sept. 22 be pushed back until March 2017.

The move comes as the company waits for a decision by federal regulators on another controversial proposal also involving oil-carrying trains in the Northern California city of Benicia.

Hearings for Phillips 66’s project, which would allow the company to bring in crude oil by train to its Santa Maria Refinery on the Nipomo Mesa, began in February. In a July 10 letter to county planning staff, the company said it wanted to wait until the Federal Surface Transportation Board ruled on a petition involving an oil train-related project in Benicia. The company in charge of that project, Valero, is seeking declaratory relief from the three-person federal board after the oil company’s proposal to transport 50 trains per-day carrying crude oil through the city was denied by the Benicia Planning Commission and appealed to its City Council.

At the heart of the Benicia case is the issue of pre-emption, or the extent of a local government’s authority over interstate rail transportation, which is the purview of federal government.

The same issue is at play in SLO. The hearings on the Phillips 66 project featured discussions over the county’s ability to set limits or conditions on the project.

“In the interest of efficiency of the commission as well as the planning staff, we believe it would be prudent to further continue the hearing on Phillips 66’s Rail Spur Extension Project until March 2017, so that all parties can benefit from the direction expected from the Surface Transportation Board,” the letter from Phillips read.

Andres Soto is a member of Benicians for a Safe and Healthy Community, an organization of residents who oppose Valero’s proposed project. Soto told New Times he was concerned that the impact of a decision that favored Valero would have far-reaching consequences.

“It would gut local land-use authority across the country,” he said.

Whether Phillips 66 gets the delay will be up to the SLO County Planning Commission. The commission will take up the request at the Sept. 22 meeting.