By modifying language on a permit to allow for oil shipments without an environmental review, one attorney says a California air quality agency “marks a very troubling turn,” with regulators “entering into backroom deals with the industry they’re supposed to be regulating.”
SACRAMENTO — Earthjustice has filed a lawsuit alleging that a California air quality agency has granted an illegal and clandestine permit allowing oil trains carrying Bakken crude to transfer their dangerously volatile cargo into oil trucks at a rail yard seven miles from downtown Sacramento.
According to the Sept. 23 complaint, an existing permit allowed only ethanol transfers at the rail yard in McClellan, California. In May, the complaint alleges, the Sacramento Metropolitan Air Quality Management District quietly modified the Inter-State Oil Company permit with language allowing crude oil transfers at a maximum rate of 20.5 million gallons per quarter.
A “very troubling turn”
Earthjustice attorney Suma Peesapati told MintPress News that the permit was modified to include oil transfers without an environmental review, public hearings, or even a public announcement. And that, Peesapati added, “marks a very troubling turn where the regulators who are supposed to be protecting us are entering into backroom deals with the industry they’re supposed to be regulating.”
The oil and ethanol shipped to McClellan are subsequently trucked to Bay Area refineries, with the closest facility being the Tesoro refinery in Martinez (about 60 miles away). The ethanol, which is used as a gasoline additive, is produced in corn-growing regions. All of the oil is coming from wells in North Dakota and eastern Montana – the Bakken shale oil region.
The oil from that region is more volatile than typical crude, and it’s being extracted so rapidly that there isn’t enough pipeline capacity to carry it away as fast as it’s pumped out of the ground. As a result, the volume of U.S. crude oil shipped by train has been skyrocketing in recent years.
The Earthjustice lawsuit, filed on behalf of the Sierra Club, warns that that the Bakken oil shipments will travel over some of California’s steepest rail grades. But the legal driver for their lawsuit doesn’t arise from the dangers posed by rail shipments.
Rather, the lawsuit is based on the failure of the Sacramento Air District to perform an environmental review before granting Inter-State a permit for the transfers. California’s Environmental Quality Act (CEQA) requires every state agency to review the environmental impacts of its decisions.
But the permit issued by the Sacramento Air District is “ministerial,” which means it was issued through a process that requires “about the same level of scrutiny as a dog license,” Earthjustice attorney Kristen Boyles told MintPress.
The allegations against the Sacramento District are similar to those levelled by Environmental Justice in its March 28 lawsuit against the Bay Area Air Quality Management District, which had granted a ministerial permit to Kinder Morgan for oil transfer operations in Richmond, California.
However, unlike the Sacramento case, the petition for a preliminary injunction against the Kinder Morgan permit is grounded in the risks of shipping Bakken crude by rail because Earthjustice wanted a quick decision suspending the permit before filing a petition demanding a CEQA review.
Earlier lawsuit thrown out
The merits of the Earthjustice petition for a preliminary injunction against the Kinder Morgan permit were never heard because San Francisco Superior Court Judge Peter Busch dismissed the petition on Sept. 5. Busch ruled that the petition missed the 180-day filing deadline specified by CEQA for permit appeals.
“How was anyone supposed to know that the clock [to appeal the July 2013 permit for Kinder Morgan] had started ticking?” said Boyles, who was one of the attorneys-of-record for the petition. “No one knew they were trans-loading oil until a local TV station followed an oil train into the Richmond rail yard and filmed them doing it.”
The civic and environmental groups represented by Earthjustice in the Richmond case – Communities for a Better Environment, Asian Pacific Environmental Network, Sierra Club, and Natural Resources Defense Council – have not decided if they would appeal the dismissal of their petition, Boyles said.
The Sacramento case, which was lodged in Sacramento County Superior Court, cannot be dismissed because of a timeliness issue. However, as in Richmond, it wasn’t until a media investigation (by the Sacramento Bee) that the public became aware of crude oil transfers at the McClellan rail yard, Peesapati said.
McClellan was home to McClellan Air Force Base up until 2001, when the base was shut down. McClellan’s population was only 443 people as of July 1. However, as the Earthjustice lawsuit points out, the business park being developed at the site of the former air base will eventually accommodate 34,000 employees who, along with nearby residents, will be exposed to toxic emissions from the transfer operations.
Toxic emissions from crude oil
The toxic compounds released into ambient air by crude oil include benzene, which is classified as a known carcinogen. Peesapati says there isn’t any doubt that benzene vapor and other toxic gases will be released by the oil trains parked at McClellan because “[t]he emissions control technology that Inter-State is using for transloading operations only pumps the emissions into [previously-emptied] railcars.”
“It takes quite some time to transfer all the oil from a train,” Peesapati continued, “so you’ll have railcars filled with crude oil vapors, baking in the sun and leaking the vapors from valves and flanges. [The Sacramento Air District] had the option of specifying an emissions-control technology that would have destroyed the toxic compounds in the emissions, but they issued a permit specifying the cheapest method available.”
Asked if it’s a stretch to describe a technology which sequesters railcar emissions temporarily as “emissions control,” Peesapati said, “That’s a question we would like them to answer. Where do they think the emissions will go when they re-load a railcar, or open it up to clean it? If the vapors are released near a community – whether it’s McClellan or somewhere else – they will endanger the residents of the community.”
The Earthjustice lawsuit is also alleging that the Sacramento Air District “used its subjective judgment” to select a method for calculating railcar emissions “that resulted in an incorrect emissions increase from the [ethanol-transfer] operation….”
Ethanol and its emissions are flammable, but grain alcohol – unlike crude oil – is hardly a “toxic stew.” The vapors released by crude oil contain many toxic constituents, such as alkanes, benzene, naphthalene, and toluene – all of which are classified as toxic or carcinogenic at parts-per-billion levels.
Most of the compounds released from crude oil to the air, moreover, are classified as volatile organic compounds. VOCs from any source promote the formation of ozone, the irritating gas in smog.
As each of California’s urban areas is implementing plans to attain state and federal air quality standards for ozone and other pollutants, MintPress asked the Sacramento Air District to confirm that its calculations led the agency to conclude that emissions from volatile, Bakken crude wouldn’t increase the city’s inventory of ozone precursors.
MintPress also asked the Sacramento Air District why, in addition to an operating permit, the agency issued Inter-State Oil a “construction permit” when the company didn’t need to “construct” anything for crude oil transfers. Additionally, MintPress asked why a construction permit would be issued for an operation which has been transferring oil into tanker trucks for almost a year.
A spokesperson for the Sacramento Air District said a review of those questions led the district to conclude that “they were too closely related to the pending litigation for us to respond at this time.”
A hearing date for the Sacramento case had not been set as of press time.