The companies proposing the Northwest's largest oil-by-rail transfer terminal at the Port of Vancouver are digging for information about two major roadblocks standing in their way: the Vancouver City Council's resolution opposing the oil terminal and the $1.3 billion plan to redevelop the city's former industrial waterfront.
The Seattle office of the Van Ness Feldman law firm, representing Tesoro Corp. and Savage Companies, has filed public disclosure requests with the city of Vancouver seeking documents connected to the City Council resolution, approved by a 5-2 vote in June. The law firm also is pursuing details related to the commercial/residential redevelopment proposed by Columbia Waterfront LLC.
Jay Derr, an attorney with Van Ness Feldman, largely declined to comment on the companies' requests for information. He said he wouldn't comment on "legal theory or strategy" and that it would be inappropriate to share information that "might be discussed with my clients."
Nevertheless, the requests, made under Washington's Public Records Act and obtained by The Columbian under the same law, could prove significant. They suggest Tesoro and Savage are hunting for evidence to undercut arguments against the oil terminal, and to bolster their own case for it. They come as opponents and proponents of the oil terminal prepare to go before the Washington state Energy Facility Site Evaluation Council, which is reviewing the companies' permit application.
In addition to aiming the resolution at the Tesoro-Savage proposal, the Vancouver City Council also has unanimously voted to intervene in the evaluation council's review, which includes legal proceedings. That intervention allows the city to present evidence against the oil terminal. "Since the hearings are a legal process, we have city attorneys working on it," City Councilor Jack Burkman said in an email to The Columbian.
Burkman, one of the council's five votes against the oil terminal, said he believes the city has "a strong case that the risk to our community is poorly understood and likely to impact neighborhoods, public safety and our economic development, all issues that would support denying the application."
Meanwhile, Columbia Waterfront LLC — which includes Tualatin, Ore.-based Gramor Development and four local investors — argues the oil terminal would be a detriment to its effort to redevelop 32 acres of waterfront property. The oil terminal would be built less than 2 miles west of the waterfront site, which is next to port and BNSF Railway tracks.
With their public-records requests, Tesoro and Savage "hope to find something to get their thing approved," said Barry Cain, president of Gramor. As to the evaluation council's ongoing review of the oil-terminal proposal, Cain said, "We'll stay in on it."
Tesoro and Savage want to build an oil-by-rail terminal receiving an average of 360,000 barrels of crude per day at the port. The oil would be stored in six above-ground tanks. Each tank would have a shell capacity of 380,000 barrels for a total storage capacity of 2.28 million barrels. The oil would be loaded onto ships bound primarily for West Coast refineries. Backers of the project say its benefits include new jobs, revenue for the port and increased U.S. energy independence. Critics cite many concerns, including oil spills, explosive oil-train derailments and climate change.
The evaluation council continues to conduct an environmental-impact review of the permit application filed by Tesoro and Savage in late August 2013. The council expects to issue a draft environmental impact statement on the oil-terminal proposal this year.
Eventually, the evaluation council will make a recommendation to the governor, who will decide whether to approve or deny the oil terminal. Opponents may appeal to the state Supreme Court.
The city of Vancouver received Derr's request for waterfront-development and related documents on Feb. 18. In his letter, Derr asked for numerous records, including:
• The ordinance adopting the development agreement for the waterfront project — and any other related agreements or changes to those agreements — between the city and any of the following parties: Columbia Waterfront LLC, Gramor, BNSF Railway, Boise Cascade Co. or the Port of Vancouver.
• Copies of the city's environmental-impact review and decision, under the state Environmental Policy Act, regarding the waterfront project.
• Copies of Vancouver's City Center Vision Plan, any transportation and planning documents associated with it, and copies of documents related to the city's environmental review of the vision plan.
• Any agreements, or changes to agreements, connected to "the road improvement project known as the 'Waterfront Access Project,' " as well as environmental analyses associated with the project.
• Any grant or funding applications or agreements related to the Waterfront Access Project.
• Any city ordinances, staff reports, environmental analyses or intergovernment agreements linked to the port's West Vancouver Freight Access project.
Emails obtained by The Columbian show that Derr and other attorneys for Tesoro-Savage made subsequent requests. One request came in March, seeking a copy of a presentation that Cain, the Gramor president, gave to the Vancouver City Council in June 2011 about the status of the waterfront project.
Another one arrived in April, seeking "updated Columbia Waterfront Tax Generation Analysis," a document by Vancouver-based E.D. Hovee & Company LLC. Derr said the companies need the documents about the waterfront project for the oil terminal's environmental impact statement. He declined to comment about other potential uses for the information.
On June 26, the city received Derr's request for public records involving the Vancouver City Council's resolution against the oil terminal. The resolution, which spells out multiple public safety and other concerns, calls on the port to cancel its lease with Tesoro and Savage; asks the evaluation council and Inslee to deny the proposed oil terminal; requests that other governments and agencies reject permits that would increase the transportation of Bakken crude oil through Clark County; and urges lawmakers and agencies to implement regulations that boost the safety of hauling oil by rail.
The June 26 request seeks:
• Copies of all documents linked to the resolution, "particularly including all internal or external communications" that occurred before the resolution was issued.
• Copies of all "communications and correspondence" about the resolution that "are dated on the date of or after the issuance of" the resolution.
The request for materials associated with the resolution also seeks communications sent from any Vancouver City Council member, and any employees of the offices of the city manager and city attorney, to other government officers, elected officials and agencies.
Derr said the request for documents linked to the resolution "speaks for itself." He declined further comment.
The city has fulfilled the requests for public documents about the waterfront project. It's now processing the requests for information about the resolution.
"This is the legal firm representing Tesoro-Savage in the (evaluation council) process," Burkman said of the records requests, "and I'm not surprised they would make requests like these to prepare for those hearings."
City Attorney Bronson Potter said the companies' request for waterfront-project documents may be part of an attempt to build a counter-argument against waterfront backers who say the oil terminal will negatively affect the site's development.
That counter-argument may be that developers of the waterfront project knew early on that the volume of freight-rail traffic near the waterfront site would increase.
Cain, the Gramor president and lead spokesman for the waterfront project, said Tesoro and Savage will find that waterfront developers and the city have been planning "to do a first-class waterfront project." They'll also find, he said, that "it was a surprise to both of us" to see plans for oil trains.
Cain said that until July 6, 2013 — when an oil-train explosion in Lac-Megantic, Quebec killed 47 people and leveled much of the small city's downtown — "we only thought oil trains were ugly." Little more than a year ago, he said, "we found out they're more than ugly, they're dangerous and deadly."