Tag Archives: Senator Fran Pavley

Law professor: 9 ways that STATES can help regulate railroad safety and transportation

Repost from LegalPlanet.org
[Editor:  Federal preemption under the Commerce Clause is NOT the last and only word on regulating crude oil trains.  Here are some suggestions for State regulation by Professor Jayni Foley Hein, executive director of UC Berkeley School of Law’s Center for Law, Energy & the Environment.  – RS]

Oil By Rail: Nine Things California Can Do to Increase Safety

While FRA Considers New Federal Regulations, States Can Ramp Up Prevention and Emergency Response
By Jayni Hein, June 24, 2014

At a joint Senate and Assembly hearing last week on oil by rail safety in California, some lawmakers expressed frustration at slow federal action, and asked what California can do to increase public safety. My testimony focused on federal preemption issues, defining areas where the state can regulate, and those where it is preempted by the Commerce Clause, Federal Railroad Safety Act (FRSA), or ICC Termination Act, or all three.

While the Department of Transportation (DOT) and Federal Railroad Administration (FRA) have primary authority over railroad safety and transportation, the California Public Utilities Commission (CPUC) shares authority with the federal government to enforce federal rail safety requirements and conduct inspections. And even with strong federal preemption provisions, there are actions that California and other states can take right now to increase public safety in light of the enormous growth of oil by rail.

Here are nine things the state can do:

1. Prioritize track and rail car inspection.

California has more than 5,000 miles of mainline railroad track. Inspection of track and rail cars is vital, as derailments are the most common type of train accident in the United States. A national analysis of freight train derailments from 2001 to 2010 on the Class I freight railroads’ mainline track found that broken track rails or track welds were the leading cause of derailments. Broken rail car wheels and track obstructions are also common causes of derailments. (Liu, et. al. 2012).

Governor Brown’s new budget includes funding to hire seven additional rail safety inspectors for the CPUC, paid for by rail industry assessments. The state should ensure that it has enough CPUC inspectors to accommodate the projected rise in oil by rail traffic each year. If seven new inspectors are needed right now; we will likely need many more by 2016, when oil by rail shipments are projected to increase as much as 25-fold, to 150 million barrels per year.

2. Obtain robust data on rail routing, rail car contents, and accident causes.

California agencies need more information from FRA and the railroads on routes, frequency, and rail car contents, as well as data on train derailments, their causes, and risk factors specific to crude by rail transit. The state should obtain this data from FRA – a recommendation echoed in the June 10, 2014 California Inter-Agency Working Group Report. The CPUC needs both national data and California-specific data in order to do its job.

3. Conduct an analysis of the risks that crude by rail poses to the state, including identification of high-risk areas of track, and propose specific measures to increase safety.

The legislature should consider requiring an annual report from the CPUC on the specific risks that crude by rail poses to the state, and measures that it can take to increase safety. Voluntary agreements with the railroads may also be an important outgrowth of this state-specific analysis that can inform where and how to direct limited state resources. As previewed above, this state analysis should be guided by the most recent data available from FRA and the railroads.

The legislature could also consider requiring information sharing among the relevant state agencies, including CPUC, Office of Emergency Services (OES), Office of Spill Prevention and Response (OSPR), California Environmental Protection Agency, and more.

4. Require state oil spill contingency plans for trains transporting oil into the state.

SB 1319 (Pavley) would require state oil spill contingency plans for trains transporting oil into the state. Such a state-mandated plan would provide an opportunity to secure better emergency response protection for the environment and public safety.

5. Get access to daily information on oil shipments into California, and ensure that state and local emergency personnel can access this information immediately in the event of an accident.

A recent DOT Emergency Order requires that each railroad operating trains containing more than 1 million gallons of Bakken crude oil, or approximately 35 tank cars, to provide states with weekly notice that includes estimated volumes of Bakken oil  transported per week and routing information.

The state should also have immediate access to real-time shipment information, assuming the technology exists to enable this. The state should also ensure that local emergency response personnel are well trained to deal with any crude by rail accident, and can readily identify the contents of any shipment. Training and information sharing with local emergency response personnel can be paid for by the industry, using a fee or assessment like the 6.5 cent/barrel fee on all oil imports recently approved by the state.

6. Advocate for more stringent federal safety regulations.

Legislative pronouncements, as well as the CPUC’s robust participation in the Rail Safety Advisory Committee (RSAC) are needed to secure better federal standards.

California joins others states such as New York in advocating for more stringent rail car design standards (phasing out DOT-111 cars, for example), mandatory placards on rail cars identifying Bakken crude oil,  expediting Positive Train Control, and requiring electronically-controlled pneumatic brakes on all crude oil trains. The state can also advocate for further federal analysis of possible routing changes, to avoid sensitive population and habitat areas.

7. Monitor compliance with new voluntary measures that the railroads agreed to implement this year.

As part of a February 2014 agreement with DOT, the Class I railroads will perform one additional internal-rail inspection each year than required by the FRA on routes over which trains carry 20 or more tank cars of crude oil, and will conduct at least two track geometry inspections over these routes. The  railroads also agreed to use end-of-train braking systems on all oil trains, and lower train speed in federally-designated “high-threat-urban-areas.”

The CPUC should monitor the railroads’ compliance with these voluntary measures. At the same time, CPUC and the state should advocate for making these voluntary measures mandatory, by issuing new or revised FRA regulations.

8. Consider issuing guidance to local permitting agencies on requirements for offloading facilities and oil refinery expansion.

There are currently at least five crude-by-rail refinery projects being pursued in California: one in Pittsburg, one in Benicia, two in Bakersfield, and one in Wilmington. There is a patchwork of local permitting agencies responsible for land use, air, water, and other local safety and environmental issues that may be relevant to offloading sites and refineries.

Local government and permitting agencies can deny land use and other permits for refineries and offloading facilities if they find safety risks or improper environmental mitigation under statutes like the California Environmental Quality Act (CEQA). But, local agency personnel may have varying levels of expertise in oil and rail issues and may apply permitting criteria inconsistently. As such, the state, through the Office or Planning and Research (OPR), should consider issuing guidance to local permitting agencies on necessary permits and requirements for offloading facility or refinery expansion.

9. Provide guidance on CEQA review and the public comment and participation process, especially relevant to environmental justice communities that may be located near offloading sites or refineries.

While rail accidents can happen anywhere, communities near offloading sites and refineries are especially vulnerable to oil by rail transport risks. The state can provide information and guidance to these communities on opportunities for engagement, comment and participation.

In addition, the state can encourage railroads, industry and refineries to work directly with potentially affected communities to disclose as much information as possible about shipments, safety measures, and how community members can participate in the process to make their communities safer.

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    California lawmakers assail Feds for timid handling of rail oil shipments

    Repost from The Ames Tribune, Ames, Iowa
    [Editor:  The 3-hour California Joint Legislative Oversight Hearing on Transport of California Crude Oil by Rail  can be viewed here.  – RS]

    State lawmakers assail Feds for timid handling of rail oil shipments

    By Timm Herdt, Ventura County Star, June 20, 2014

    SACRAMENTO — State lawmakers, concerned about the safety risks associated with a sixfold increase in crude oil shipments by rail into California, hoped on Thursday to get an update on what the federal government is doing.

    But a regional official of the Federal Railroad Administration who had been scheduled to testify before a joint committee hearing regarding crude oil rail transport was a last-minute no-show.

    Sen. Fran Pavley, D-Agoura Hills, said she received a call on the eve of the hearing from a high-level federal administrator in Washington, D.C., informing her that no one from the agency would testify.

    It will take coordination between the state and federal governments to protect California from a spike in accidents that has led to fiery derailments and oil spills elsewhere, Pavley noted.

    “We don’t have that cooperation yet,” she said. “There are a lot of things they can do. They need to step up to the plate.”

    Other lawmakers — who are mostly powerless to act because they are pre-empted by federal law — shared her view.

    A point of contention is the belief of many state and local officials that information about upcoming shipments of carloads of highly flammable crude oil should be publicly available. But railroads, citing national security concerns, have released that information only to emergency-response agencies, which must agree not to publicly disclose it.

    “We’ve seen what happens when they explode,” said Sen. Hannah-Beth Jackson, D-Santa Barbara, chairwoman of the Joint Legislative Committee on Emergency Management. “It sure seems like in California our hands are tied. There’s so little we can do.”

    Jackson asserted that security concerns should dictate public disclosure.

    “National security means the security of people who live in the nation,” she said.

    Under pressure from state officials in Montana, it appears federal officials may have decided to relent on that issue.

    The Associated Press reported Wednesday that the U.S. Department of Transportation has ordered railroads to give state officials specifics on oil-train routes, and Montana officials intend to publicly release that information next week.

    Rail-oil shipments have skyrocketed across the United States and Canada in recent months because there are no pipelines from which to ship oil extracted from the Bakken shale fields in North Dakota.

    In the last year, derailments have resulted in fiery explosions in three Canadian provinces and in Virginia, and there have been more rail accidents involving oil spills than over the previous 30 years combined.

    In Northern California, the issue has become front-page news in recent weeks, as city officials in the East San Francisco Bay city of Benicia are considering a permit application from a Valero oil refinery that would enable the refinery to accept two, 50-car trains every day.

    If that refinery expansion is approved, the trains would wind through a narrow mountain pass in the Feather River Valley, and then pass through the populated corridor from Sacramento to Benicia, passing within a quarter mile of 27 schools.

    Similar scenarios could unfold elsewhere around the state, testified Gordon Schremp of the state Energy Commission. He said six refinery projects have been proposed to accommodate rail shipments — two in Bakersfield, and one each in Benicia, Pittsburg, Santa Maria and the Port of Stockton.

    As those projects come on line, Schremp said the commission expects the percentage of oil coming into California by rail to increase from 1 percent today to 23 percent by 2016. Most imported oil now arrives in the state either via marine tankers or by pipeline from Alaska.

    A report issued last week by the state’s Interagency Rail Safety Task Force lists thousands of miles of track it identifies as “areas of concern.”

    The new state budget that Gov. Jerry Brown is expected to sign Friday includes a 6.5 cent per-barrel fee on refineries to fund an expansion of the state Office of Oil Spills and Prevention and also hire new rail, bridge and railcar inspectors at the state Public Utilities Commission.

    State lawmakers, who are pre-empted from taking such steps as requiring trains to take specific routes and imposing state-based safety standards on tanker cars, agreed their primary focus needs to be on preparing emergency agencies to respond to rail accidents involving toxic materials such as crude oil.

    “This is an unusually fast-growing development,” said Sen. Lois Wolk, D-Davis. “It’s really important to have emergency procedures in place.”

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      LA Times: Joint Legislative Oversight Hearing on Transport of California Crude Oil by Rail

      Repost from The Los Angeles Times
      [Editor:  The 3-hour California Joint Legislative Oversight Hearing on Transport of California Crude Oil by Rail  can be viewed here.  – RS]

      California safety officials ill-prepared for increasing oil imports

      By Patrick McGreevy  |  June 19, 2014
      Oil by rail
      A view of Union Pacific West Colton Yard Bloomington. California lawmakers considered a report that officials are not prepared to deal with increased oil imports by train. (Irfan Khan / Los Angeles Times)

      California safety agencies are currently ill-prepared for a significant increase in transporting oil by rail through the state, but steps are being taken to catch up, experts told state lawmakers Thursday.

      Oil imports by rail to California have grown from 70 tank cars in 2009 to nearly 9,500 tank cars in 2013, and they could increase to up to 230,000 carloads by 2016, according to the California Energy Commission.

      The state needs to step in to address safety issues inadequately handled by the federal government, a California Interagency Rail Safety Group reported during a joint hearing of the Senate Natural Resources and Water Committee and the Assembly Natural Resources Committee.

      “In sum, while the federal actions taken to date are significant, they do not go far enough to address the risks of increased oil by rail transport,” the group’s report concluded. “The state should press both the federal government and the railroad industry to take additional safety measures.”

      The study group said trains transporting crude oil travel via the Feather River or Donner Pass to the San Francisco Bay Area, and via the Tehachapi Pass to Bakersfield and into Los Angeles.

      The working group recommended the state strengthen its inspection and enforcement staff. There are only 52 positions to handle railroad operations and safety inspections, which the group’s study said is “seriously inadequate given current and projected numbers of oil shipments.”

      The state budget approved Sunday by the Legislature allows for the hiring of seven additional rail inspectors for the California Public Utilities Commission, which should meet the need, said commission spokesman Paul King. He added that better tank cars and clear markings are needed to increase safety.

      The working group also recommended more funding for local emergency responders, and better planning.

      “Emergency responders currently lack basic, critical information needed to help plan for and respond to oil by rail incidents, including what resources railroads can provide in the event of an accident, and how they would respond to potential worst case scenarios,” the group found.

      Lawmakers including Sen. Fran Pavley (D-Agoura Hills) and Assemblyman Wesley Chesbro (D-Arcata) said they have introduced bills to improve the ability to prevent and respond to rail accidents involving oil.

      “It’s not acceptable for us to wait until something bad happens,” Pavley, chairwoman of the senate committee, said during the three-hour hearing at the Capitol. “Unless the locals have adequate resources to be prepared” and the state and federal officials cooperate, “we’re not going to be able to deal with it if a catastrophe strikes.”

      She noted that a Federal Railroad Administration official declined to attend the hearing.

      “We don’t have that cooperation yet,” she said.

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        KCRA: Joint Legislative Oversight Hearing on Transport of California Crude Oil by Rail

        Repost from KCRA 3 News
        Editor:  The 3-hour California Joint Legislative Oversight Hearing on Transport of California Crude Oil by Rail  can be viewed here.  – RS]

        Lawmakers voice concerns over oil trains in California

        Jun 19, 2014

        KCRAvideoFreightTrainFears_2014-06-19png

        SACRAMENTO, Calif. (KCRA) —State lawmakers learned at a hearing Thursday that there is very little they can do to regulate the growing number of oil trains entering California, and even tracking their movements is proving difficult.

        “I almost feel like our hands in California are tied,” said Hannah-Beth Jackson, a Democratic state senator from Santa Barbara, during a joint hearing of several Assembly and Senate committees.

        Watch report: State lawmakers voice concerns over oil trains

        Paul King, deputy director of the Office of Rail Safety at the California Public Utilities Commission, testified that the recently passed state budget will allow his agency to hire seven additional rail inspectors.

        However, he said public concerns about the shipments are justified.

        “The risks are very high,” he said. “These things explode when they derail with any force at all.”

        An official from the California Energy Commission told lawmakers the amount of crude oil imported into the state by rail has increased by more than 90 percent during the first four months of the year, compared to the same time last year.

        He said oil trains are headed to facilities in McClellan Park in Sacramento County and the Bay Area city of Richmond.

        He said five more terminal facilities are planned and a facility at the Port of Stockton that could receive 6,500 barrels per day was in the early stages.

        “Were there to be a derailment in the Sacramento railyard, a scant distance from here, everyone in downtown Sacramento, including the State Capitol, would be threatened,” said Assembly Member Roger Dickinson, D-Sacramento.

        Lawmakers also expressed concern about the environmental impact and the potential effect on drinking water if a derailment were to happen near a major waterway or reservoir.

        Jayni Hein, a U.C. Berkeley law professor testified that regulating railroads is normally the job of the federal government and that states can intervene in only limited circumstances.

        Recently, the federal government ordered rail companies to begin sharing information about oil train shipments with state and local governments.

        However, state officials testified the reports they have received so far are for shipments that have already arrived.

        “That’s unacceptable. They need that information earlier than later.  I think the public has the right to know too,” said Sen. Fran Pavley, D-Aguora Hills, who chaired the hearing.

        Juan Acosta of BNSF Railway said his company would consider sharing shipment details with state officials but wanted assurance the information will not become public.

        If it does, he said, the trains might become targets.

        “That’s the danger, a terrorist or somebody who’s misguided or who has some bad intention.  I think that’s the concern we have,” Acosta told KCRA 3.

        Jan Rein of Midtown Sacramento testified at the hearing.

        She later told KCRA 3 she lives a few blocks from the tracks and used to love to hear the trains rumble by, but not anymore.

        “I don’t want to be incinerated in my own home,” she said.

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