Tag Archives: Norfolk Southern

Ruling by Little-Known Federal Agency Paves Way for Communities to Say No to Oil-by-Rail

Repost from Desmog Blog

Ruling by Little-Known Federal Agency Paves Way for Communities to Say No to Oil-by-Rail

By Justin Mikulka, September 28, 2016 – 03:58
Oil tank care behind a fence with sign reading 'Think first'

Oil tank care behind a fence with sign reading ‘Think first.’ Main image credit: Justin Mikulka

The community of Benicia, [California,] in the crosshairs of history, made one of those decisions that will make a difference for the country. They stood up and said the safety of our communities matters.”

That was Yolo County Supervisor Don Saylor talking to The Sacramento Bee about the vote by the Benicia City Council to deny a new oil-by-rail facility that oil company Valero was seeking.

But that vote would have been meaningless if not for a recent decision on September 20 by the Surface Transportation Board (STB) that gave Benicia the legal authority to have some say over what happens within its borders.

Created in 1996, the STB is a federal agency which serves as “an independent adjudicatory and economic-regulatory agency charged by Congress with resolving railroad rate and service disputes and reviewing proposed railroad mergers.”

The STB decision helped clear up some of the gray areas around the issue of “pre-emption,” in which railroads are not subject to any local or state authorities or laws because local and state laws are “pre-empted” by federal law.

In 2013 the STB ruled in favor of Norfolk Southern Railway Company, saying once again that federal pre-emption of state laws protected the rail company from lawsuits filed in the state of Virginia.

The basic idea of pre-emption is that for interstate commerce to work, the federal government needs to be the sole regulator of railroads.

As we have reported previously on DeSmog, pre-emption can effectively place rail companies above local law. This has led to developments such as the case of Grafton, Massachusetts, where the construction of the largest propane transloading facility in the state occurred without the need for local approval, construction permits, or even environmental review.

Regarding the Grafton facility, the New England Center for Investigative Reporting wrote that, “Residents were dumbfounded: The location was in the middle of a residential neighborhood, less than 2,000 feet from an elementary school and atop the town’s water supply.”

This above-the-law approach has served rail companies well. And until the recent STB decision, it also appeared to protect oil companies who were moving oil by rail.

But this latest decision about Benicia appears to deliver a real blow to oil companies when it comes to oil-by-rail transfer facilities. Since the companies who receive the oil from the rail cars aren’t railroads, the STB ruled that they are not protected by federal pre-emption. In the decision the STB refers to Valero as a “a noncarrier” which is why the STB ruled they are not able to claim pre-emption.

This allowed Benicia to say no to an oil-by-rail facility in their community. And it has also changed the discussion about this industry as a whole.

San Luis Obispo County, California, has now delayed further the decision about a new oil-by-rail facility in order to consider the latest STB ruling.

Ethan Buckner was one of the organizers for environmental advocacy group Stand, which was working to stop the Benicia facility.

This is a victory for the right of communities to say no to refineries’ dangerous oil train projects. The federal government has said once and for all that there is nothing in federal law that prevents cities from denying these oil companies’ dangerous rail projects,” Buckner said. “The oil industry keeps telling communities they have no right to say no to oil trains, but this ruling once and for all refutes this.”

Jackie Prange was one of the lawyers working on the Benicia case for the Natural Resources Defense Council and explained the potential impact of the STB decision to the San Francisco Chronicle.

We’re pleased with the decision and the implications it will have across the country,” said Prange. “This issue is live in a number of sites across the country. This is definitely a decision that I think cities in other states will be looking to.”

They are definitely paying attention in San Luis Obispo County, as well as in Albany, New York.

Albany is the largest oil-by-rail hub on the East Coast.

Opponents of its oil trains recently had cause for celebration. On September 16, the state’s Department of Environmental Conservation announced that the two companies operating oil-by-rail facilities at the Port of Albany would now be required to undergo full environmental reviews before the agency would renew the companies’ permits.

Chris Amato is a lawyer for Earthjustice who has been working on this issue for years. He believes the STB decision supports what Earthjustice has been saying all along about Global Companies, which owns one of Albany’s oil-by-rail facilities.

The decision by the Surface Transportation Board confirms what we have been saying since 2014: that Global’s claim that state regulation of their operations is pre-empted by federal railroad law is simply wrong,” Amato explained to DeSmog. “Global can no longer attempt to shield their operations from scrutiny under their flawed legal theory.”

Opponents of the Albany oil-by-rail operations have been asking the state to step in for years, but the state has also hidden behind the issue of federal pre-emption. In 2014 the Albany Times Union reported that “Gov. Andrew Cuomo has been deflecting calls for the state to block the trains, saying rail transportation is controlled by the federal government, not the state.”

It would appear that the STB ruling negates New York’s current position and offers an option for the state to have authority over oil-by-rail facilities in Albany.

While the amount of oil moving by rail is roughly half of what it was two years ago, that is mostly due to the current low price of oil. And it hasn’t stopped oil companies’ continued efforts to build out more oil-by-rail infrastructure.

Meanwhile, oil trains continue to derail and explode, as happened in Mosier, Oregon, in June, and opposition to the oil-by-rail industry continues to grow.

This STB decision appears to be a game-changer in the oil-by-rail story. With it, perhaps now more politicians will agree that “the safety of our communities matter” — much more so than oil company profits.

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AP: Railroads beat back new safety rules after derailments

Repost from the Boston Herald

AP: Railroads beat back new safety rules after derailments

By Matthew Brown and Michael Kunzelman, December 05, 2015

FILE -In this Monday, Feb. 23, 2015, file photo, clean up continues near Mount Carbon, W.Va., where a train derailed and sent a tanker with crude oil into the Kanawha River. A little-known truth about North American railroads: No rules govern when rail becomes too worn down. Since 2000, U.S. officials blamed rail wear as the direct cause of 111 derailments causing $11 million in damage. (AP Photo/Chris Tilley, File)

A pair of train derailments in 2012 that killed two people in Maryland and triggered a fiery explosion in Ohio exposed a little-known and unsettling truth about railroads in the U.S. and Canada: No rules govern when rail becomes too worn down to be used for hauling hazardous chemicals, thousands of tons of freight or myriad other products on almost 170,000 miles of track.

U.S. transportation officials moved to establish universal standards for when such steel gets replaced, but resistance from major freight railroads killed that bid, according to Associated Press interviews with U.S. and Canadian transportation officials, industry representatives and safety investigators.

Now, following yet another major accident linked to worn-out rails — 27 tanker cars carrying crude oil that derailed and exploded in West Virginia earlier this year — regulators are reviving the prospect of new rules for worn rails and vowing they won’t allow the industry to sideline their efforts.

“We try to look at absolutely every place where we can affect and improve safety,” said Federal Railroad Administrator Sarah Feinberg. “Track generally is the place that we’re focusing at the moment, and it’s clearly overdue. Rail head wear is one place in particular that we feel like needs to be addressed as soon as possible.”

An official announcement on the agency’s intentions to revisit rail wear is expected by the end of the year.

In the meantime, federal regulators haven’t taken the positive steps that they need to, said Ronald Goldman, an attorney for the families of the two 19-year-old women who died in a 2012 derailment outside Baltimore.

“It’s a lack of will, not a lack of ability, in my opinion,” he added.

Industry supporters argue that the seven major freight railroads in the U.S. and Canada are in the best position to know what is going on with their lines, including when they need to be replaced or have the maximum speeds for trains traveling on them lowered. They also note a long-term decline in accidents that has reduced the frequency of derailments by more than 40 percent since 2000.

All sides agree it’s difficult to pinpoint how many accidents are tied to worn rail. Since 2000, U.S. officials blamed rail wear as the direct cause of 111 derailments causing $11 million in damage.

That’s less than 1 percent of all accidents, yet it masks a broader safety dilemma: Years of massive loads rolling over a rail will exacerbate defects in the steel, such as cracks or fractures. Investigators ultimately list the defect as the cause of a derailment, but it might never have been a problem if the rail had not been worn down.

“Rail defects are internal and rail wear is external, and when external meets internal, that’s when problems may arise,” said John Zuspan of Track Guy Consultants, a Pennsylvania firm that offers track inspections, safety training and other services for railroads.

Two accident causes in particular have the strongest correlation with worn-out rails: “detail fractures” that result from fatigued metal, and “vertical splits” in the head of the rail, where it makes contact with a train’s wheels, according to the FRA.

Those problems caused a combined 1,200 derailments with $300 million in damages, three deaths and 29 people injured in the U.S. between 2000 and the present, according to accident records reviewed by the AP.

Among them was the July 2012 derailment of a Norfolk Southern Railway train hauling ethanol and other products through Columbus, Ohio. Seventeen cars derailed, including three hauling highly flammable ethanol that exploded into flames, triggering an evacuation of surrounding neighborhoods.

A month later, another accident occurred involving a CSX Transportation train hauling coal over a bridge along Main Street in Ellicott City, Maryland, outside Baltimore. Twenty-one cars derailed when the company’s worn-down rail split beneath the weight of the coal cars. The two college students sitting on the bridge died, crushed by thousands of pounds of spilled coal.

The victims’ families reached a settlement with CSX last year for undisclosed terms. Goldman, the families’ attorney, said he pressed federal officials for a forum that would allow his clients to testify about the issue, but “nothing really happened.”

A month after the CSX derailment, federal regulators asked the Rail Safety Advisory Committee — a panel created by the Railroad Administration to include the industry and others in fashioning safety rules — to craft new standards to reduce the risks of worn-down rail. The committee set up a 116-person working group to tackle the problem, made up of industry representatives, government officials, consultants, researchers and railroad worker unions.

The group included 55 representatives from the major freight railroads and their industry organization, the Association of American Railroads. The FRA had 14 seats at the table and their counterparts from Transport Canada had five.

Following several meetings in 2012 and 2013, the group — which required consensus before recommending action — agreed on voluntary guidance for companies to manage rail wear, but no new regulations.

“There was certainly a lot of pushback and a lot of political pressure put on FRA not to adopt regulations for rail wear,” said Richard Inclima, director of safety for the union that represents track inspectors and a member of the working group. “Rail wear limits were on the table. The industry raised a lot of arguments against rail wear limits.”

“The industry doesn’t want to be regulated,” he added. “That’s no secret.”

The railroads’ opposition was confirmed by others involved with the group’s work including from the National Transportation Safety Board, the FRA and Transport Canada.

Association of American Railroads spokesman Ed Greenberg said the railroads were “unaware of any science-based data supporting rail wear limits.”

NTSB investigator Richard Hipskind, who took part in the Ellicott City and Columbus accident investigations and later served on the rail wear working group, said more research would be needed to establish universal standards.

Railroads have their own internal standards for rail wear, and have replaced more than 30,000 miles of rail since 2010, according to reports submitted by the major railroads to the U.S Surface Transportation Board, a semiautonomous agency under the umbrella of the U.S. Department of Transportation.

Standards vary among railroads and are complicated by differences in how much weight a given line bears, whether it’s in a wet or dry climate, and if the line goes through mountains or involves lots of turns. Those variables can make the difference between well-worn rail that’s still safe and routes that poses a heightened safety hazard, according to industry experts and safety officials.

Greenberg said the industry takes an aggressive approach to identifying and removing defective or worn sections of rail.

“Each railroad has its distinct operating environment and operating conditions that would be factored into this,” Greenberg said. He added that the industry was now interested in “renewed dialogue” with the FRA on the topic.

The AP requested details on rail wear standards from each of the seven major freight railroads — BNSF Railway, Union Pacific, Canadian Pacific, CSX, Canadian National, Norfolk Southern and Kansas City Southern. They either refused the request or referred questions to the railroad association, which also declined to release the standards.

Public attention to train derailments increased sharply after July 2013, when an out-of-control oil train derailed and exploded in Lac-Megantic, Quebec, killing 47 people. One of the most significant changes to emerge from that and other accidents involving crude and ethanol was a mandate for companies to phase out or upgrade tens of thousands of tank cars that are prone to rupture.

Those are important changes, said James Horbay, a rail safety engineer with Transport Canada. But what causes trains to come off the tracks in the first place needs to be resolved, he said.

“If you crash an airplane, are you going to say, ‘Let’s build an airplane that’s not going to fall apart when it hits the ground?’” he asked. “Whether rail wear is something that should be looked at is a good question to ask. You’re going right to the cause now.”


Matthew Brown reported from Billings, Montana.  Michael Kunzelman reported from Baton Rouge, Louisiana. 
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Oil train safety concerns cast shadow over cross-border rail deal

Repost from McClatchyNews
[Editor:  Note the significant section on bridge safety - "In downtown Milwaukee, Canadian Pacific’s oil trains cross a 99-year-old steel bridge over South 1st Street that shows visible signs of deterioration. Some of beams supporting the structure are so badly corroded at the base that you can see right through them.  In Watertown, just west of the derailment site, the railroad crosses Main Street on a bridge with crumbling concrete supports embedded with its date of construction: 1906."  - RS]

Oil train safety concerns cast shadow over cross-border rail deal

HIGHLIGHTS
• Merger would create largest railroad on continent
• Canadian Pacific, Norfolk Southern transport oil
• Derailments, bridges under scrutiny in Wisconsin

By Curtis Tate, November 25, 2015
Norfolk Southern and Canadian Pacific locomotives lead an empty oil train west at Richmond, Va., on Oct. 14, 2014. The Canadian railroad last week made public its offer to take over Norfolk Southern. The $28 billion deal, if approved by shareholders and regulators, would create the largest railroad in North America.

Norfolk Southern and Canadian Pacific locomotives lead an empty oil train west at Richmond, Va., on Oct. 14, 2014. The Canadian railroad last week made public its offer to take over Norfolk Southern. The $28 billion deal, if approved by shareholders and regulators, would create the largest railroad in North America. Curtis Tate McClatchy

WATERTOWN, WIS. - Concerns about the safety of crude oil trains loom over a proposed rail takeover that would create the largest rail system in North America.

Last week, Alberta-based Canadian Pacific made public its plan to acquire Virginia-based Norfolk Southern. The $28.4 billion deal would need to be approved by company shareholders and federal regulators, a process that could take at least 18 months.

The railroads are key players in the transportation of crude oil from North Dakota’s Bakken shale region to East Coast refineries. Currently, Canadian Pacific transfers the shipments to Norfolk Southern at Chicago. The combined company could offer a seamless path the entire distance to the East Coast.

Though both companies have so far escaped the most serious crude by rail incidents involving spills, fires and mass evacuations, they are likely to face fresh scrutiny of their safety practices and relationships with communities if they agree to a deal.

In Wisconsin, the railroad has clashed with environmental groups and elected officials over the condition of its aging bridges. And in spite of calls from members of Congress and the Federal Railroad Administration, the railroad refuses to share its bridge inspection documents with local officials, citing “security concerns.”

“I’ve reached out to (Canadian Pacific) personally to try to get them to be better neighbors,” said Rep. Ron Kind, D-Wis. “The response hasn’t been that good.”

Two Canadian Pacific trains derailed earlier this month in Watertown, a city of 24,000 about an hour west of Milwaukee.

The first occurred on Nov. 8 when 13 cars of an eastbound oil train bound from North Dakota to Philadelphia derailed and spilled about 500 gallons. About 35 homes were evacuated for more than a day. Then on Nov. 11, a second train derailed at the same spot as the first. Though no one was injured, the back-to-back incidents shook residents.

“If safety was really important, you wouldn’t have two trains derail in one town in one week,” said Sarah Zarling, a mother of five who lives a few blocks from the track and has become an activist on the issue.

THE FEDERAL SURFACE TRANSPORTATION BOARD, WHICH REVIEWS RAILROAD MERGERS, HAS BEEN SYMPATHETIC TO CONCERNS FROM THE PUBLIC ABOUT THE IMPACTS OF INDUSTRY CONSOLIDATION.

In a statement, Canadian Pacific spokesman Andy Cummings said the railroad was the safest in North America for 12 of the past 14 years.

“It is good business for us as a railroad to operate safely,” he said, “and the statistics clearly show we are doing that.”

In downtown Milwaukee, Canadian Pacific’s oil trains cross a 99-year-old steel bridge over South 1st Street that shows visible signs of deterioration. Some of beams supporting the structure are so badly corroded at the base that you can see right through them.

In Watertown, just west of the derailment site, the railroad crosses Main Street on a bridge with crumbling concrete supports embedded with its date of construction: 1906.

Cummings said both bridges are safe and that their appearance doesn’t indicate their ability to safely carry rail traffic. Still, he said the company is working on a website that would explain its bridge management plan and offer a way for the public to raise concerns.

“We do understand that we have an obligation to reassure the public when questions arise about our bridges,” he said.

Railroads carry out their own bridge inspections under the supervision of the Federal Railroad Administration. In September, Administrator Sarah Feinberg sent a letter to railroads urging them to be more open about their bridge inspections and conditions.

Addressing a rail safety advisory panel in early November, Feinberg said her phone was “ringing off the hook” with concerned calls from the public and lawmakers.

“They are frustrated, and frequently they are scared,” she said, “because the absence of information in this case leaves them imagining the worst.”

$340 Million – Amount of settlement for survivors of 2013 Quebec oil train disaster. Canadian Pacific was the only company that declined to contribute.

Much of the concern about the condition of rail infrastructure stems from series of derailments involving crude oil and ethanol. Including the Watertown derailment this month, there have been 10 derailments with spills or fires this year in North America.

In the worst example, an unattended train carrying Bakken crude oil rolled away and derailed in the center of Lac-Megantic, Quebec, in July 2013. The subsequent fires and explosions leveled dozens of buildings and killed 47 people.

Canadian Pacific was the only company among roughly two dozen that declined to contribute to a $340 million settlement fund for the survivors. The railroad denies any responsibility in the disaster, though it transported the derailed train from North Dakota to Montreal, where a smaller carrier took control.

While the railroad last month dropped its opposition to the settlement, it could still be in court. A Chicago law firm has threatened to bring wrongful death lawsuits against the railroad in the next 18 months.

Cummings said the company “will continue to defend itself in any future lawsuits.”

While it’s not clear what issues will ultimately decide the fate of proposed merger, the federal Surface Transportation Board, which reviews such transactions, has been sympathetic to concerns from the public about the impacts of industry consolidation.

In 2000, the three-member panel rejected a similar cross-border bid by Canadian National and BNSF Railway to create what would have been the largest North American railroad at the time. The deal failed partly because a series of mergers in the 1990s had created a colossal rail service meltdown.

Because of those problems, and complaints from shippers and members of Congress, the Surface Transportation Board imposed a moratorium on new railroad mergers. There hasn’t been a major rail deal since.

In a cautious statement earlier this month acknowledging Canadian Pacific’s offer, Norfolk Southern responded that any consolidation of large railroads would face “significant regulatory hurdles.”

But speaking to a conference of transportation companies in Florida this month, Canadian Pacific CEO Hunter Harrison sounded confident that shippers would not oppose the deal and that the decision to press forward was largely in the hands of shareholders.

“If the shareholders want it, it’s going to happen,” he said. “It’s just that simple.”

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