Held up in court for a year, Maryland oil train reports outdated
By Curtis Tate, September 12, 2015
• McClatchy received reports it asked for in 2014
• Documents contained data previously revealed
• Economics of crude by rail have shifted since
After more than a year, McClatchy finally got the oil train reports it had requested from Maryland.
And they were badly out of date.
Last year, McClatchy filed open-records requests in about 30 states for the documents, and was the first news organization to do so in Maryland, in June 2014.
Maryland was poised to release the records in July 2014, when two railroads, CSX and Norfolk Southern, sued the state Department of the Environment to block the disclosure.
Finally last month, a state judge ruled in the favor of the release, marking the first time a court had affirmed what many other states had already done without getting sued.
The documents McClatchy and other news organizations ultimately received were dated June 2014, not long after the U.S. Department of Transportation began requiring the railroads to notify state officials of shipments of 1 million gallons or more of Bakken crude oil.
After more than a year, however, the economics of shipping crude by rail had changed substantially.
Amid a slump in oil prices, refineries once receiving multiple trainloads of North American crude oil every day have switched, at least temporarily, to waterborne foreign imports.
The trend is reflected from the East Coast to the West Coast, where long strings of surplus tank cars have been parked on lightly used rail lines, generating rental income for small railroads but also the ire of nearby residents.
The documents released in Maryland show that in June 2014, Norfolk Southern was moving as many as 16 oil trains a week through Cecil County on its way to a refinery in Delaware.
But McClatchy has known that since August 2014, when it received a response to a Freedom of Information Act request from Amtrak.
The Delaware News Journal reported that the PBF Refinery in Delaware City, Del., now receives only about 40,000 barrels a day of crude by rail. That’s about 56 loaded tank cars, or half a unit train, nowhere close to the volume of mid-2014.
The June 2014 Maryland documents also show that CSX was moving as many as five oil trains a week on a route from western Maryland through downtown Baltimore toward refineries in Philadelphia.
But that had been clear since at least October 2014, when the Pennsylvania Emergency Management Agency released its oil train reports showing an identical number of CSX trains crossing from western Pennsylvania into Maryland, then back into southeast Pennsylvania.
CSX told the Baltimore Sun that it had not regularly moved a loaded oil train through Baltimore since the third quarter of 2014. The company had earlier told the newspaper that it moved empty oil trains through the city and state.
Federal regulators never required railroads to report empty oil train movements.
The vast majority of loaded CSX oil trains move to Philadelphia via Cleveland, Buffalo, Albany, N.Y., and northern New Jersey, according to records from Ohio, Pennsylvania and New York.
Maryland judge orders release of oil train reports
• Case marks first time railroads have lost on the issue in court
• Judge not persuaded that release would harm security, business
• Companies that filed 2014 lawsuit have until Sept. 4 to appeal
By Curtis Tate, August 17, 2015
WASHINGTON – A Maryland judge rejected two rail carriers’ arguments that oil train reports should be withheld from the public, ordering them released to McClatchy and other news organizations that sought them.
The ruling isn’t the first time railroads have lost their bid to keep the oil train reports secret, but it is the first court decision recognizing the public’s right to see them.
The U.S. Department of Transportation began requiring in May 2014 that railroads inform states of large shipments of crude oil after a series of derailments with spills, fires, explosions and evacuations. Since February, six more major oil train derailments have occurred in North America.
Nonetheless, some railroads have continued to press their case that the reports should be exempt from disclosure under state open records laws. Most states shared the documents anyway, and Pennsylvania and Texas did so after McClatchy appealed. Maryland is the only state that was taken to court after it said it would release the reports.
Norfolk Southern and CSX sued the Maryland Department of the Environment in July 2014 to stop the state agency from releasing the records to McClatchy and the Associated Press. They have until Sept. 4 to appeal the decision, issued Friday by Judge Lawrence Fletcher-Hill of the Circuit Court for Baltimore City.
Both companies, which transport crude oil to East Coast refineries concentrated in Delaware, Pennsylvania and New Jersey, said they would review the decision.
Dave Pidgeon, a spokesman for Norfolk Southern, said the company would “respond at the appropriate time and venue.”
Melanie Cost, a spokeswoman for CSX, said the railroad “remains committed to safely moving these and all other shipments on its network.”
The ruling isn’t the first time railroads have lost their bid to keep the oil train reports secret, but it is the first court decision recognizing the public’s right to access them.
In his 20-page opinion, Fletcher-Hill was not persuaded by arguments that releasing the oil train reports would harm the railroads’ security and business interests. He also dismissed the relevance of the U.S. Department of Transportation’s May final rule addressing the safety of oil trains. The companies had argued that the final rule supported their claims.
He also ordered the companies to pay any open court costs.
In a statement, Maryland Secretary of the Environment Ben Grumbles said the agency was pleased with the ruling and that it is “committed to transparency in government.”
Rail transportation of Bakken crude oil, produced through hydraulic fracturing of shale formations in North Dakota, has grown exponentially in the past five years. However, a series of fiery derailments, including one in Quebec in 2013 that killed 47 people, have raised numerous concerns about public safety, environmental protection and emergency planning and response.
U.S. Transportation Secretary Anthony Foxx issued an emergency order on May 7, 2014, that required any railroad shipping 1 million gallons or more of Bakken crude oil through a state to inform that state’s emergency response commission what routes the trains would take and which counties they would cross, as well as provide a reasonable estimate of how many trains to expect in a week.
Beginning in June 2014, McClatchy submitted open records requests in 30 states for the oil train reports, including Maryland.
On Monday, Pennsylvania Gov. Tom Wolf released an 84-page assessment of oil train safety in the state, which examined derailment risk, tank car failures and regulatory oversight. Some Maryland lawmakers have called for the state to perform a similar assessment.
Repost from DeSmogBlog [Editor: DeSmog refers here to an October 2014 article by Curtis Tate of McClatchy News that first broke this story. I regret that the Benicia Independent failed to take note of this important article back then. I will add that I have mixed feelings about this report. Folks my age are aware of a long history of rogue investigations by the FBI, and we’ve become understandably wary of government agencies that serve the needs of corporate interests. Nonetheless, I fear that there are in fact real and horrendous risks of security attacks by unbalanced individuals on the left and the right – and abroad. For me, this is only one more reason to ban oil trains. – RS]
FBI Advisory: Oil Trains At Risk of “Extremist” Attack, But Lacks “Specific Information” To Verify
Rail industry lobbying groupspublished the one-page FBI Private Sector Advisory as an exhibit to a jointly-submitted August 2014 comment sent to the U.S. Department of Transportation’s (DOT), which has proposed “bomb trains” regulations currently under review by the White House Office of Information and Regulatory Affairs (OIRA).
In August 2014, DeSmog also reported that in Maryland, rail company Norfolk Southern submitted a July 23, 2014 legal filing to the Maryland Department of the Environment citing Osama Bin Laden and Al Qaeda in its attempt to justify keeping oil-by-rail routes a trade secret. Norfolk submitted that filing merely five days after the FBI published its Private Sector Advisory.
While Norfolk Southern cited Biden Laden and Al Qaeda in its affidavit, the FBI honed in on the Islamic State (IS), also sometimes referred to as the Islamic State in Syria (ISIS) or the Islamic State in the Levant (ISIL). It also mentioned Al Qaeda in the Arabian Peninsula (AQAP) — and Osama Bin Laden.
Like Maryland, the rail industry lobbying groups cited the FBI Advisory as a way to argue against disclosing oil-by-rail routes to the public.
“It is not just environmental extremists who pose a threat to the transportation of crude by rail. Foreign terrorists are also a risk,” wrote the industry lobbying groups. “Two publications reportedly by Al Qaeda in the Arabian Peninsula contain threats against crude oil trains…Furthermore, information from Osama Bin Laden’s compound indicates that Al-Qaeda has contemplated attacks on trains.”
Louis Warchot, an attorney for the Association of American Railroads, co-authored the comment submitted to DOT.
Before working for the association, Warchot “served in the United States Armed Forces and retired in the rank of Colonel in the United States Army Reserve Judge Advocate General’s Corps.” On top of his law, business masters and undergraduate degrees from University of California-Berkeley, Warchot also has a masters from the U.S. Army War College in Strategic Studies.
“Extremism” or Peaceful Activism?
In the FBI‘s advisory, it never uses the term “activist” or “advocate,” opting instead for the term “extremist.” So what does an “extremist” do and what exactly constitutes an extremist?
“Environmental extremists,” explains the Bureau, “believe the use of fossil fuels contributes to the destruction of our environment and may believe that transport of crude oil creates the potential for environmental hazardous train derailments and oil spills.”
It’s a definition that almost anyone who understands the science of climate change or is concerned about oil train explosions could fall under. The FBI then lays out what these “extremists” do.
According to the FBI, they use social media to spread awareness of oil-by-rail routes (like sharing a link to the ForestEthics website “Oil Train Blast Zone”) and make or send “threatening” phone calls or emails to industry, contractors or others associated with moving crude by rail.
“The FBI should be looking carefully at the imminent threat oil trains pose to millions of Americans living in the blast zone, but they should then turn their attention to the lax rules from the Department of Transportation and the oil and rail industry who fight common sense safety steps and hide train routes from emergency responders,” Ross Hammond, US Campaigns Director for ForestEthics, told DeSmog.
Speaking of threats, perhaps the FBI should concern itself with the explosive oil-by-rail trains that pass underneath West Point and right next to nuclear missile launch sites, rather than things that fall under the purview of First Amendment-protected speech threatening to industry profits.
*An earlier version of this article cited Chemical Security News as the first website to report on the FBI document. McClatchy DC was actually the first news outlet to report on the document’s existence as part of the U.S. Department of Transportation oil-by-rail rulemaking docket back in October 2014. We regret the error.
Photo Credit: First responders in Lac Megantic via Transportation Board of Canada.
Feds won’t weaken oil-train public disclosure rules
By Paul Nussbaum, Inquirer Staff Writer, May 29, 2015, 5:20 PM
Responding to Congressional and public criticism, federal regulators said Friday they will not weaken rules requiring certain disclosures about trains transporting crude oil and other hazardous materials.
The Inquirer reported this week that new oil-train rules issued May 7 by the U.S. Department of Transportation would end a 2014 requirement for railroads to share information about large volumes of crude oil with state emergency-response commissions.
Instead, railroads were to share information directly with some emergency responders, but the information would be exempt from the Freedom of Information Act and state public records laws.
“Under this approach,” the new rule said, “the transportation of crude oil by rail . . . can avoid the negative security and business implications of widespread public disclosure of routing and volume data…”
But the federal Pipeline and Hazardous Materials Safety Administration, an arm of the transportation department, said Friday it will not make the change.
Instead, the existing rule “will remain in full force and effect until further notice while the agency considers options for codifying the May 2014 disclosure requirement on a permanent basis,” the agency said.
Saying that “transparency is a critical piece of the federal government’s comprehensive approach to safety,” the agency said it supports “the public disclosure of this information to the extent allowed by applicable state, local, and tribal laws.”
U.S. Sen. Robert Casey (D., Pa.) was one of nine senators who asked the agency to keep the existing rule in place.
Casey said Friday he was “pleased” by the agency’s decision.
“First responders who risk their lives when trains derail deserve to know what chemicals they could be dealing with when they get to the scene,” Casey said in a statement.
The disclosure rules about train routes and general numbers of trains apply to all trains carrying 1 million gallons or more of crude oil from the Baaken oil deposit in North Dakota.