Lynne Nittler’s Testimony to Benicia Planning Commission Feb. 9, 2016

Posted: February 12, 2016 in Rail Transport of Oil
Tags: , ,
Lynne Nittler organized the Davis carpools to Benicia.

Lynne Nittler organized the Davis carpools to Benicia.

Dear Planning Commission Members,

Thank you for this opportunity to address you.  I am Lynne Nittler from Davis.

The Planning Department Staff Report suggests the only recourse for uprail residents facing “significant and unavoidable impacts” is to contact our congressional representatives and ask them to pass legislation for our safety.  Staff also suggests that the Planning Commission write such a letter on our behalf.

I want to outline how responsive our CA and Congressional representatives have been in the last two and a half years, and how involved we have already been at the legislative level.    It is partly because of that involvement that the uprail group from Davis asks you to not certify the EIR and to deny the Valero Crude-by-rail Project.

Following are six pertinent statements:

  1. In the FEIR, the City of Benicia admits having no say over what the Railroad does, including details of the Valero deliveries in Benicia as well as any control over the dangers and difficulties the trains of crude oil cause to uprail communities, watersheds, and habitat vital to all Californians. Control is relinquished under federal preemption…

2.      Our state passed S.B. 861 June 20, 2014 with the following reasonable oil train regulations that call for: a) a tax on each barrel of oil to pay for training emergency firefighters for this elevated level of danger, b)  worst case emergency plans to be filed, and c)  proof of sufficient liability (Reminder: the Railroads involved in the Lac Megantic accident did not have sufficient liability, went bankrupt immediately after the accident, and left the public to cover costs of 1-2 billion.)   The response from the railroads was to sue the state of CA for ignoring federal preemption!   (*See update below. On June 18, 2015 the challenge was dismissed because the case was not “ripe for review.”)

  1. Our state passed S.B.730 into law (9/18/15) requiring two crew on every train carrying crude oil traveling in CA. (Technically, the act adds Section 6903 to the Labor Code, relating to railroads). This is especially important because of our high risk rail sections.  This map shows in red the high risk rail sections for every rail route into CA.  It is a map prepared for the Office of Spill Prevention and Response showing also earthquake faults and the placement of haz mat teams which indicates how sparse they are in the many remote areas of CA many of which are also hazardous.   Be patient as the map comes up slowly on your computer.

Access the 20 page report prepared by a special interdepartment task force on crude-by-rail for the Benicia DEIR and released June 10, 2014.  The map is p. 20.

  1. Our elected Congressional representatives from this region (John Garamendi who sits on the Transportation Committee, Mike Thompson who represents Benicia, Doris Matsui, and George Miller wrote a letter to the Department of Transportation on July 1, 2014 urging the stabilization of Bakken crude oil in towers to remove the natural gases and thus reduce the volatility of the crude oil and also advocating the implementation of stronger rail cars and positive train control technology. They did not get results, but see item 6.
  1. volatilityJohn Garamendi’s current legislation H.R. 1679 Bakken Crude Stabilization Act (3/27/15) that authorizes Bakken crude oil to be transported by rail only if it has a Reid vapor pressure of not more than 9.5 pounds per square inch (the maximum volatility set by the New York Mercantile Exchange for crude oil futures contracts) where often Bakken crude ranges between 11.7 and 14.4 psi. This is not a panacea as indicted in this chart from the Office of Spill Prevention and Response.  This bill is stalled since March 2015.
  1. The long-awaited new safety regulations under PHMSA (Pipeline and Hazardous Materials Safety Administration) under DOT (Department of Transportation) addressing a) thicker shields of new tank cars, b) phase out of old cars over 3 years, c) required distributed power braking by 2021, and  d) speeds of 50 mph max with 40 mph in urban areas are at best minimal and slow to come into effect.  They were released May 1, 2015.  Many of us commented on these safety regulations during the public review period about the same time as your DEIR review in late 2015.

An analyst in Office of Spill Prevention and Response under the Governor predicted:

Current fireball accident rate is about 1 every 2 months.  I would expect that to continue thru the phase-out period.  Presumably the thicker shells will reduce the number of punctured cars (but maybe only a little) and the thermal protection will reduce the number of cars that split open from the fire heat.  Thus, five years from now I would expect the rate of accidents to reduce somewhat and the # of cars rupturing to probably drop from an average of 12 to maybe 8.  Obviously, there is still a substantial risk to our communities.

The same analyst in the Office of Spill Prevention and Response, under the Governor’s Office of Emergency Services concludes his summary of the May 1, 2015 federal rules, “There is no safe way to transport crude by rail, despite these regulations or any forseeable federal regulations.”

Considering the above 6 items, I conclude:

  1. Benicia has admitted having no control over the transport of the crude oil through our state, surrendering to federal preemption of the railroads in every case. Note:  All of our government-level agencies have stated in letters to Benicia how mitigation is possible without triggering federal preemption.
  2. State and Congressional legislators can take only small steps to make people and the environment – including our watershed – safe, and the railroads have thwarted even those steps.
  3. The Department of Transportation is slow and minimally effective in taking action to protect people and our vulnerable lands by regulating the railroads.
  4. According to one expert whose job is to prevent and respond to spills, there is no safe way to transport crude by rail.

Understanding these drawbacks, and remembering that while you sit on the Benicia Planning Commission you are also California residents, what conclusion will you reach in deciding whether to bring crude-by-rail into our state, knowing you will have no control over the long stretches of high risk routes the trains must take to reach Benicia and knowing how many cities and towns will be impacted as the trains pass through their centers. Presently, only your city and San Luis Obispo County have the power to make this decision that seriously affects so many of others – your neighbors – who will carry the cumulative risk and the daily impacts with no mitigations even considered.  While you evaluate the economic impact for your own community, consider also the trail of ghg emissions, hazardous risk, air quality degradation, and threat to wildlife the same project leaves all the way to the borders of California and beyond.

I repeat my opening plea.  Please do not certify this version of the EIR, which means you must deny the Valero project for the present.

Thank you for your consideration,

Lynne Nittler


 *III. Recent Litigation
A. Challenge to California’s S.B. 861 Dismissed

In a previous article, we discussed the industry challenge to California’s oil train legislation then pending before the United States District Court for the Eastern District of California in Association of American Railroads v. California Office of Spill Prevention and Response.[65] In that case, the Association of American Railroads, Union Pacific Railroad Company, and BNSF Railway Company had argued that California’s S.B. 861 is preempted by federal law, including most prominently the Federal Railroad Safety Act (FRSA) and the Interstate Commerce Commission Termination Act (ICCTA).[66] Most notably, the railroads argued that the California law’s oil spill contingency planning requirements are preempted by the FRSA, and that the law’s financial responsibility requirements are preempted by the ITTCA.[67]

On June 18, 2015, the court granted the defendants’ motion to dismiss. The court refused to reach the merits of the case, finding instead that the dispute was not ripe for review. Specifically, the court found that because compliance with the forthcoming regulations would be within the plaintiff’s control, and because the lack of implementing regulations meant the railroads had not been coerced into compliance, the plaintiffs could not establish “a concrete plan to violate the law.”[68] Similarly, the court held that the plaintiffs failed to establish a genuine threat of prosecution, finding that letters from the state to the railroads discussing enforcement timelines were general statements, “not sufficiently imminent” threats.[69]

The railroads did not file a notice of appeal within the 30-day deadline.

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