Tag Archives: State regulation

SACRAMENTO BEE: State seeks fee on dangerous chemicals crisscrossing California

Repost from the Sacramento Bee

State seeks fee on dangerous chemicals crisscrossing California

By Tony Bizjak, July 22, 2016 6:00AM

• California officials say the state isn’t prepared to handle hazardous materials spills
• A new $45 fee on every rail car carrying dangerous substances will help beef up spill response


    Earthjustice map: Crude-by-rail Across America

    Repost from Earthjustice.org
    [Editor: I’m reposting this map today – it was recently updated and still highly relevant.  Earthjustice’s map shows Major Crude-by-Rail Accidents since 2012 (Red Symbols) and communities opposing Crude-by-Rail (Green Symbols).  – RS]

    More crude oil was spilled in U.S. rail incidents in 2013, than was spilled in the nearly four decades since the federal government began collecting data on such spills.

    Since late 2012, as hydraulic fracturing and tar sands drilling created a glut of oil, the industry has scrambled to transport the fossil fuel from drill sites to the east and west coasts, where it can potentially be shipped overseas to more lucrative markets.

    The increase in oil rail traffic, however, has not been matched with increased regulatory scrutiny. Oil trains are not subject to the same strict routing requirements placed on other hazardous materials; trains carrying explosive crude are permitted to pass directly through cities—with tragic results. A train carrying Bakken crude oil derailed in the Quebec town of Lac-Mégantic on July 6, 2013, killing 47 people in the small community.

    In the absence of more protective regulations, communities across the country are beginning to take matters in their own hands.

    Legal Cases

    Earthjustice represents groups across the country, fighting for protections from crude-by-rail:

    FAQs: About Crude-By-Rail

    Q. What are DOT-111s?

    DOT-111s are rail cars designed to carry liquids, including crude oil, and have been in service in North America for several decades. They are prone to punctures, oil spills, fires and explosions and lack safety features required for shipping other poisonous and toxic liquids. As crude production in the United States has surged exponentially in recent years, these outdated rail cars have been used to transport the crude oil throughout the country.

    The U.S. and Canadian government recognized decades ago that the DOT-111s were unsafe for carrying hazardous materials, finding that the chance of a “breach” (i.e., loss of contents, potentially leading to an explosion) is over 50% in some derailment scenarios.

    U.S. and Canadian safety investigators have repeatedly found that DOT-111s are unsafe and recommended that they not be used for explosive or hazardous materials, including crude oil; however, the U.S. government’s proposal to phase out these rail cars fails to take sufficient or immediate action to protect the public.

    Q. What is Bakken crude oil?

    Bakken crude refers to oil from the Bakken shale formation which is primarily in North Dakota, where production has skyrocketed in recent years due to the availability of newer hydraulic fracturing (“fracking”) techniques. The increase in the nation’s output of crude oil in 2013, mostly attributable to Bakken production, was the largest in the nation’s history.

    Bakken crude is highly flammable, much more so than some crude oils. Today, Bakken crude moves in “unit trains” of up to 120 rail cars, as long as a mile and a half, often made up of unsafe DOT-111s.

    Q. Are there alternative tank cars available?

    Transporting Bakken crude by rail is risky under the best of scenarios because of its flammability. But legacy DOT-111s represent the worst possible option. All new tank cars built since October 2011 have additional some safety features that reduce the risk of spilled oil by 75%. Even so, safety investigators, the Department of Transportation, and the railroad industry believe tank cars need to be made even safer. Some companies are already producing the next-generation rail cars that are 85% more crashworthy than the DOT 111s. Petitioners support the safest alternatives available, and expect that the ongoing rulemaking process will phase out all unsafe cars.

    In the meantime, an emergency prohibition on shipping Bakken crude in DOT-111s—which virtually everyone acknowledges is unreasonably dangerous—is required immediately. (Read about the formal legal petition filed on July 15, 2014.)

    Q. What steps have U.S. and Canadian governments taken?

    The U.S. government recognizes that Bakken crude oil should not be shipped in DOT 111 tank cars due to the risks, but has done shockingly little to limit their use.

    In May 2014, the DOT issued a safety alert recommending—but not requiring—shippers to use the safest tank cars in their fleets for shipments of Bakken crude and to avoid using DOT 111 cars. Canada, in contrast, responded to the Lac Mégantic disaster with more robust action. It required the immediate phase-out of some DOT-111s, a longer phase-out of the remainder, and the railroads imposed a surcharge on their use to ship crude oil in the meantime.

    In the absence of similar standards in the U.S., the inevitable result will be that newer, safer cars will be used to ship crude in Canada—while the U.S. fleet will end up with the most dangerous tank cars.


      Washington regulator unaware of oil train consultant’s connections

      Repost from The Oregonian / OregonLive
      [Editor:  The consultant’s connections with BNSF were noted nearly a month ago here and in Curtis Tate’s McClatchy DC report.  On November 24 Tate wrote, “The rail spill analysis portion of the Washington state draft document was written in part by three consultants who are former employees of BNSF and its predecessor, Burlington Northern. In addition to the state agency for which they prepared the analysis, their clients include BNSF and the Port of Vancouver.”  I  understand that the Washington agency that hired the consultant, the Energy Facility Site Evaluation Council, was asked about the possible conflict of interest in advance of publication of Tate’s article, but they never got back to him.  Staff at the Energy Facility Site Evaluation Council should have been aware well in advance of the Oregonian story.  – RS]

      Washington regulator unaware of oil train consultant’s connections

      By Rob Davis, Dec. 17, 2015, updated Dec.18, 2015 9:44 AM
      vancouver oil train
      An oil train parked outside Vancouver, Wash., in 2014. A terminal proposed there would bring four oil trains to the city each day. (Rob Davis/Staff)

      A consulting firm that helped write a report underestimating the risks of catastrophic spills from a proposed Vancouver oil train terminal has worked for two groups that will gain financially if the project moves forward.

      Stephen Posner, the Washington energy regulator who approved the company’s hiring, didn’t know about all those connections until The Oregonian/OregonLive told him. But he did not answer repeated questions about whether he would investigate further.

      Three of the four authors who wrote the risk analysis for Washington’s Energy Facility Site Evaluation Council are former executives of BNSF Railway Co. The railroad would move oil trains to the Vancouver terminal.

      The authors’ company, MainLine Management, lists BNSF as a client on its website.

      MainLine, which didn’t respond to repeated queries, recently worked for another project supporter: the Port of Vancouver, which owns the land where the terminal would be built.

      Much remains unclear about MainLine’s relationships with BNSF and the port. It is not known whether BNSF is a current MainLine client. It’s also unclear whether MainLine’s past work for the port would constitute a conflict.

      Washington law prohibits the energy council from hiring consultants with a significant conflict of interest with a project’s applicant or others involved.

      MainLine finished its work for the port before it was hired to analyze the terminal. The port awarded a $121,000 contract to MainLine in April 2013 to analyze part of its freight rail system serving the oil train terminal. A port spokeswoman said the final payment was sent to MainLine Sept. 25, 2014, four months before the firm was hired to analyze oil spill risks.

      The relationships raise questions about the thoroughness of Washington’s review of the experts it’s using to independently evaluate the Vancouver oil terminal.

      The $210 million terminal proposed by Tesoro Corp. and Savage Services is the highest profile project pending before the Washington energy council.

      The small agency is designed to be a one-stop permitting shop for major energy projects, studying their impacts and recommending a decision to Gov. Jay Inslee. The governor has final approval.

      Posner, the agency’s manager, approved hiring MainLine. He said he was unaware the firm listed BNSF as a client until The Oregonian/OregonLive told him.

      But neither Posner nor an agency spokeswoman, Amanda Maxwell, would commit to inquiring further about whether the company has a current connection with BNSF.

      Before MainLine was hired, Posner said he discussed the company with Washington’s lead consultant, Cardno. He said his agency relied on Cardno to vet MainLine’s clients and past work.

      How did Cardno review MainLine’s potential conflicts? That’s unclear. Posner told The Oregonian/OregonLive to direct that question to Cardno, which didn’t immediately respond.

      Cardno has provided written assurance that its subcontractors, including MainLine, are forbidden to discuss the terminal with any outside party, Maxwell said.

      “This written assurance provided by Cardno is the basis for trusting in the credibility of the work being performed,” she said.

      When we asked Posner whether he was concerned that MainLine could have a conflict, the spokeswoman, Maxwell, interrupted, saying it was inappropriate for him to comment.

      “Without having the information, it’s not something he could put in context,” she said.

      The agency should have that knowledge and be able to answer such a question, said Robert Stern, a good government advocate who helped write California’s post-Watergate conflict of interest law. He said the energy agency’s review appeared inadequate.

      “Maybe they don’t have any conflicts, but how do you know?” Stern said. “There should be something in writing saying we have no conflicts of interest.”

      Both BNSF and the Port of Vancouver stand to benefit financially from the project’s construction. The port estimates netting $45 million in lease revenue from the project over 10 years. BNSF has rallied supporters to send comments to the energy council praising the project, saying its construction would strengthen the rail company’s customer base.

      Gus Melonas, a BNSF spokesman, didn’t specifically answer a question about whether MainLine is currently under contract with the railroad.

      “BNSF does not discuss specific relationships involving contract companies,” Melonas said by email, “however MainLine Management Inc. has worked with Northwest agencies providing modeling on rail related projects.”

      If built, the Vancouver project would be the Pacific Northwest’s largest oil train terminal, capable of unloading 15 million gallons of oil from four trains daily. The oil would be put on barges and sent to coastal refineries.

      It has drawn strong opposition from Vancouver elected officials and environmental groups amidst a string of fiery oil train explosions nationwide since 2013.

      The report co-authored by MainLine lowballed those risks. It called a 2013 oil train spill in Aliceville, Alabama the worst on record, using it to analyze impacts of a disaster in the Pacific Northwest. The study said a slightly larger spill is “the most credible or realistic” worst-case scenario.

      But a far larger spill has already happened. An out-of-control oil train derailed and exploded in Quebec in July 2013, fueling a raging inferno that killed 47 people and leveled part of a small Canadian town.

      The analysis incorrectly said the Quebec accident spilled just 36,000 gallons of crude. Far more did. Canadian safety regulators concluded 1.5 million gallons escaped from tank cars. Much of it burned in the resulting fire.

      Just a third as much oil spilled in the Alabama accident.


        Laws regulating crude oil trains in several states

        Repost from Public Source
        [Editor:  Although the emphasis here is on Pennsylvania, this article gives some detail on state laws regulating crude oil trains in several other states.  – RS]

        Can Pennsylvania officials do more to address crude oil train safety?

        Other states with heavy crude-by-rail traffic have passed various laws to address safety. Pennsylvania legislators have not.

        By Natasha Khan | PublicSource | Nov. 22, 2015
        Can Pennsylvania officials do more to address crude oil train safety?
        Legislators in states with an uptick in crude-by-rail traffic have passed laws and changed policies. But not in Pennsylvania. (iStock photo)

        They hug rivers, breeze by farms and cross 100-year-old bridges. They chug past hospitals, schools, stadiums and many, many homes. And sometimes, they derail.

        As shipments of crude oil by train have increased nationwide, anxiety over the chance of a derailment happening in a big city, like Pittsburgh or Philadelphia, has grown.

        Philadelphia Energy Solutions, a refinery, is the nation’s largest consumer of fracked oil from North Dakota’s Bakken Shale, which makes Pennsylvania a top destination for oil trains.

        PublicSource reported in March that 1.5 million Pennsylvanians live within a half-mile of tracks that haul crude oil — the federally recommended evacuation zone for oil train fires.

        While the railroad industry says that 99.99 percent of shipments of oil by rail safely make it to their destinations, there have been at least seven derailments of trains carrying crude oil involving spills or fires in North America this year; the latest spill was earlier this month in Wisconsin.

        So far, only minor derailments have occurred in Pennsylvania. Some say it’s only a matter of time before the state experiences a big crash.

        Regulating railroads is mostly under the purview of the federal government, which recently issued new safety standards for older tank cars and braking systems. But legislators in some states with heavy crude-by-rail traffic have passed laws and changed policies out of fear of what a major derailment could mean for their states.

        While Gov. Tom Wolf has taken some action on the issue — most notably commissioning a rail safety expert to assess ways to lower risks of derailments — no laws addressing prevention or emergency response have passed, or been introduced, by state legislators in Pennsylvania.


        “There have been bills introduced in New Jersey, New York, Minnesota, Washington state and California, and I haven’t seen squat out of Pennsylvania,” said Fred Millar, an independent hazardous materials consultant in Washington, D.C.

        Laws passed in other states vary and offer several paths for Pennsylvania to consider.

        In 2014, Minnesota passed a law that raises millions of dollars a year to fund emergency response initiatives, state studies on infrastructure improvements and rail inspectors.

        “I feel like there’s a huge responsibility for state and even local governments to be laying down these issues and challenging the railroads,” said the law’s sponsor, state Rep. Frank Hornstein (D-Minn).

        In May, Washington state passed a law requiring railroads to show oil spill response plans and how they would pay cleanup costs for a worst-case spill. The law also placed a fee on barrels of oil entering the state to help pay for more emergency response programs. Additionally, the law required more public disclosure of crude oil train shipments.

        A few days after Wisconsin experienced two train derailments in early November, state lawmakers introduced rail safety legislation that addressed prevention and response.

        ‘Evaluating options’

        A group of Pennsylvania state senators have been exploring oil train safety issues.

        “As far as legislative action, we are in the process of evaluating options,” said Nolan Ritchie, assistant executive director of the Pennsylvania Senate Transportation Committee, which is looking at the issue along with the Senate Environmental Resources and Energy Committee.

        Sen. John Rafferty, R-Berks/Chester/Montgomery, chairman of the transportation committee, did not want to comment until they have something they plan to introduce, according to Ritchie.

        Ritchie said they’re looking at safety precautions taken by railroads, what the governor has done and laws in other states, while also making sure Pennsylvania doesn’t overstep legally.

        “Pennsylvania really cannot add additional regulations that would basically be under the jurisdiction of the federal government,” he said.

        Some states are testing that idea. Similar to Washington’s law, California passed legislation in 2014 requiring that railroads provide emergency response plans and proof they can pay oil spill cleanup costs. Two railroads and an industry group sued claiming federal law preempts state rail laws.

        In June, a federal court dismissed the case because the state hadn’t started enforcing the law, and railroads couldn’t challenge it if it hadn’t yet been enforced. The law is now in effect.

        Part of the issue for railroads is the inconsistency of having to follow different rules in each state with oil trains moving across the country.

        “It’s a national system that needs to be managed as a national system,” said Grady Cothen, a retired Federal Railroad Administration safety official. “And you really can’t lay on [state officials] for regulating the safety of railroad operations. If you do, it’s a very inefficient patchwork and you end up with railroads lobbying legislatures all over the United States… ”

        Prevention and response

        rail car
        A train carrying crude oil can be identified by a red triangle-shaped placard on tank cars with the code 1267. It is a U.S. Department of Transportation classification code that identifies the hazardous material for emergency responders. (Photo by Molly Duerig/PublicSource)

        Matt Stepp, policy director at environmental group PennFuture, said there are legislative steps that can be taken now in Pennsylvania.

        He said the state should find or create revenue streams to pay for oil spill prevention plans and more robust emergency response initiatives.

        “They need to come up with a consistent revenue stream where they put some money … to double, if not triple, the number of inspectors the state can deploy to the areas with a lot of traffic,” Stepp said.

        Washington state’s 2015 oil train law put oil refineries on the hook for a 4-cent per barrel spill prevention tax and 1-cent oil spill response tax on oil moved by rail in bulk. The funds are put toward emergency response programs in oil train communities. Washington’s law also increased a state tax on railroads that helped pay for eight new rail inspectors.

        In August, Wolf released a rail safety report recommending the Pennsylvania Public Utilities Commission [PUC] add rail inspectors. PUC Chairman Gladys Brown said the commission has filled one vacancy for an inspector since the report and is currently looking to fill another.

        Brown said they hope to have the funds to hire two more after that to work with the Federal Railroad Administration to monitor the tracks. Railroads also hire their own inspectors.

        To create more funding for cleanup and response programs in California, legislators approved a 6.5-cent fee on oil companies for every barrel of oil that comes into the state by rail.

        Pennsylvania State Planning and Policy Secretary John Hanger said these kinds of fees are something Wolf’s administration is “open to,” but that they would likely require legislative action.

        Within the last year and a half, Washington state and New York have increased funding for oil spill response funds.

        At the national level, U.S. Sen. Bob Casey, D-Pa, has proposed a bill that would put a $175 fee per shipment on each older DOT-111 tank car, which have been known to catch fire or spill when trains derail and are being phased out. The money generated by the bill would go to oil spill cleanup costs, training emergency responders and hiring railroad inspectors.

        Stepp said state legislators also should create a cleanup fund that communities can tap into if an accident happens. Pennsylvania doesn’t have one, although there is a federal oil spill fund that states can access.

        “Whether you’re talking about a big city like Philly or a county, none of them are necessarily prepared for taking on such a kind of accident [crude oil derailment] and the long term impacts of that accident,” he said.

        Railroad and oil companies would “play a role” in cleanup costs, Stepp said, but that can take time and sometimes doesn’t cover all the mitigation costs. “Taxpayers tend to be on the hook for at least some of it,” he said.

        Railroads say safety first

        Officials from CSX and Norfolk Southern also testified at a hearing with the two state Senate committees on how they’ve advanced safety for crude oil transport. The officials focused on how they’ve trained first responders across Pennsylvania, supported tougher federal tank car standards and invested billions to improve track conditions.

        “We are investing in Pennsylvania and elsewhere to further enhance safety and efficiency as we move the goods that move America,” David Pidgeon, a spokesman for Norfolk Southern, wrote in an email.

        “Safety is CSX’s highest priority,” CSX spokesman Rob Doolittle wrote in an email.

        You can use this map to explore Bakken crude oil train routes within Pennsylvania. Use the search bar to zoom in and see whether your house, workplace or school is located within the federal half-mile evacuation zone.

        Their safety precautions aren’t always sufficient. In February, a CSX oil train derailed in Mount Carbon, W.V. The crash caused explosions and people were evacuatedfrom their homes. Regulators discovered a contractor twice found a flaw in a rail in the months before the accident.

        But the railroad didn’t repair it and the rail cracked, causing the derailment of 27 cars on the 107-car oil train. Local residents are suing the railroad for failing to properly inspect the track.

        In October, the Federal Railroad Administration (FRA) fined CSX and announced new track guidelines, including calling for railroads to improve inspections.

        Doolittle said CSX is working with the FRA to develop additional inspection processes to more quickly and accurately identify rail flaws.

        State rail safety report

        The state rail safety report was prepared by Allan Zarembski, a University of Delaware railroad engineering professor and an expert in railway track and structures. He focused on how railroads could prevent track and railcar wheel failures.

        The report lists 27 steps that can be taken by railroads and state agencies to reduce the risk of a derailment in the state.

        Spokesmen for Norfolk Southern and CSXwouldn’t talk to PublicSource about whether they have adopted the recommendations. Instead both sent statements listing what they’ve done to improve safety and said they’re open to working with state officials to address the issue.

        “The railroads are currently meeting some, but not all, of the recommendations,” Jeff Sheridan, Wolf’s spokesman, wrote in an email.

        For instance, both railroads have refused to adopt a 35 mph speed limit for oil trains through cities with populations of more than 100,000, requested by the governor and Casey. They run them at a maximum of 40 mph.

        “The administration continues to pursue this recommendation and absolutely feels that this is [an] important step to reduce the chances of a derailment,” Sheridan wrote.

        Hanger said the recommendations aimed at state agencies have almost all been adopted.

        These included steps the Pennsylvania Emergency Management Agency (PEMA) can take to improve response initiatives.

        Ruth Miller, a PEMA spokeswoman, said the agency has focused on crude-by-rail emergency planning and is studying where more training and response materials may be needed.

        “PEMA plans to provide opportunities for additional exercises as may be requested or needed (as funding is available),” she wrote in an email.

        Emergency response coordinators in Cambria, Dauphin and Huntingdon counties told PublicSource that first responders have received more training regarding crude oil trains — some of it paid for by the railroads and some by state grants — but more is needed.

        Lancaster County emergency response managers testified in June that the Legislature should expand the law on hazardous materials emergency planning to create more funding.

        “The emergency services are prepared for a small-scale incident,” said Lancaster County Commissioner Scott Martin at the hearing, “but the amounts involved in a train spill or fire would be quickly overwhelming.”