Greens Want SoCal Oil-Rail Project Reined In

Moreover, crude from North Dakota's Bakken region is highly volatile, and transporting it long distances through densely populated areas is dangerous, the groups say. Several trains carrying Bakken crude have derailed and exploded, such as the July 2013 disaster in Lac-Mégantic, Canada, which killed 47 people.

Since the Bakersfield Crude Terminal will receive around two 100-car trains of crude each day, the risk of disaster is significant, the groups say.

Project leaders for the terminal submitted construction permits for a rail-to-pipeline transfer facility and two 150,000-barrel storage tanks to the district in May 2012. A month later, the groups say, project manager Michael Emst contacted Kristopher Rickards, senior air quality engineer for the district, and asked Rickards to help the company avoid public notice of the storage tanks by recalculating expected emissions to keep it under 20,000 lbs. a year.

Rickards complied, and the district approved the permits for the project with an estimated 19,992 lbs of emissions per year, "just eight pounds under the threshold for Clean Air Act major source permits," the complaint states.

Almost two years later, project leaders submitted applications for permits for four sump tanks and a 2,000 gallon oil-water separator. Though these additions pushed emissions over the major source permitting threshold, the district approved the permits "rather than finding that the Bakersfield Crude Terminal had piecemealed its permit applications to circumvent Clean Air Act New Source Review in 2012," according to the complaint.

The groups claim the district knew it had discretionary authority to approve the permits, but opted not to perform full CEQA analysis on the grounds that emissions would be reduced to below-threshold levels and because it had no authority over the project's other impacts.

When the district issued public notice of the sump tank project in May 2014, several environmental groups, including the plaintiffs, submitted comments expressing fear of potential catastrophe from an oil train derailment and the project's harmful effects on the region's already poor air quality, the complaint states.

Bakersfield Crude Terminal withdrew the project in August, but resubmitted it roughly a month later with modifications reducing total emissions to 20,501 lbs. per year. The company asked the district to expedite approval, as delays were costing it $108,000 in lost profits each day, and the district complied by issuing an "authority to construct" permit for the oily water sewer system on Sept. 23, according to the complaint.

"Despite previously determining that its approval of the sump tanks and oil water separator was discretionary ... and despite determining that, even though the facility's emissions were now over the major source Clean Air Act threshold, it was not required to issue a major source permit, the air district issued the authority to construct permits as 'ministerial' permits, therefore not triggering review under CEQA. On that basis, the air district issued the permits without public notification, comment period, process, or environmental review," the complaint states.

Air Quality District counsel Annette Ballatore-Williamson said that the environmental groups had "grossly misrepresented" the district's involvement in the facility.

"This terminal was approved by Kern County a couple of years ago pursuant to full CEQA review," she told Courthouse News.

Attorney Forsyth said that is incorrect. She said the CEQA review "consisted of an unintelligible notice of exemption from CEQA. This project has never undergone review."

Ballatore-Williamson said project leaders submitted an application for a storage tank project, then canceled the application, modified the design and resubmitted it with pollution emissions reduced to less than half a pound day.

Since emissions were so minimal, the storage tank project was the equivalent of a minor building permit, she said.

Ballatore-Williamson also took issue with the implication that the district and the project leaders conducted business in secret by seeking to avoid public notice.

"The only way not to trigger public notice is to be able to reduce emissions to the point that there is no public health concern, and that's what they did," she said.

When to issue public notice for a project is regulated under state law, and is not under the district's control, she added.

She agreed that large-scale transportation of volatile crudes is a serious issue.

"Unfortunately, I think they are bringing attention to the issue by going about this the wrong way," she said. "I wish we [the district] had authority over that because of the air pollution in the Valley, but we don't. Our hands are tied."

The environmentalists seek declaratory judgment that the district violated CEQA by issuing the sewer system construction permits without performing environmental analysis.

They ask that the project approvals be vacated until the defendants can prepare a environmental impact report that complies with CEQA.

They also want an injunction preventing the defendants from carrying out any part of the project until they fulfill all of the CEQA requirements.

Elizabeth Forsyth with Earthjustice of San Francisco represents all the groups except Communities for a Better Environment, which is represented by in-house counsel A. Yana Garcia of Oakland.

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