Valero Benicia Crude By Rail: No news is, well, a bit of news

By Roger Straw, September 2, 2016
[UPDATE as of Sept. 19, 2016 10AM PDT – still nothing from the STB.]
The Latest …STB logoEvery day, I check the Surface Transportation Board’s website, watching to see if they post a decision on Valero’s end run to delay the proceedings. Nothing yet. [If you go to their website, under E-Library, go to Decisions & Notices, or Filings, and search for “valero” under Case Title.]

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…

  1. 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
  2.  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.

In April on a 3-2 vote, ignoring the advice of city manager and staff, the City Council granted Valero’s request for a delay.  As part of the motion, the Council “approved continuing discussion on this item to September 20.”

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.