Tag Archives: Transportation Security Administration

Association of American Railroads, BNSF Railway, California Attorney General Kamala Harris, California Regulation, Crude By Rail, Union Pacific Railroad

Railroads file suit against state of California

Repost from The Sacramento Bee
[Editor’s UPDATE: Download the complaint here.  – RS] 

Railroads say California lacks authority to impose safety rules on oil shipments

By Tony Bizjak and Curtis Tate, Oct. 8, 2014
A crude oil train operated by BNSF snakes its way through James, California, just outside the Feather River Canyon in the foothills of Sacramento Valley, on June 5, 2014.
Virginia emergency responders learn about the different types of railroad tank cars in a safety class at a CSX yard in Richmond, Va., on Oct. 3, 2014. About 66 first responders, including firefighters, participated in the daylong event. CSX has brought its “Safety Train” this year to communities in states where it hauls large volumes of crude oil. (Curtis Tate/McClatchy)

The battle over crude oil trains in California intensified this week, reaching into the legal sphere with potential national repercussions.

The state’s two major railroad companies, Union Pacific and the BNSF Railway, went to federal court Tuesday to argue that neither California nor any other state can legally impose safety requirements on them because the federal government already does that.

The lawsuit came days after California Attorney General Kamala Harris joined other officials in challenging one crude-by-rail project, in the Bay Area city of Benicia. In a letter to Benicia officials, Harris said the city has failed to adequately analyze the potential environmental consequences of Valero Refining Company’s plan to ship two 50-car oil trains daily through Northern California to its Benicia refinery.

Those shipments would run through downtown Sacramento and other Valley cities.

The Valero project and similar plans by other oil companies prompted the state Legislature this summer to pass a law ordering railroad companies to submit an oil spill prevention and response plan to the state, and to provide proof to the state that they have enough money to cover oil-spill damages.

Railroads fired back this week, filing a lawsuit in the U.S. District Court in Sacramento. Their argument: Federal law pre-empts the state from imposing safety restrictions on the railroads.

The suit was filed by the two largest railroads in the Western United States, Union Pacific and BNSF Railway Co. The industry’s leading trade group, the Association of American Railroads, is listed as co-plaintiff.

The fight involves a long-standing friction point between railroads and U.S. states and cities. Railroads contend that local governments cannot place requirements or restrictions on freight travel because federal laws cover that ground.

The railroads have used the federal pre-emption argument to stop states from trying to impose speed limits on trains and ban certain types of shipments. In one notable case, railroads got the courts to overturn a Washington, D.C., law that attempted to ban trains carrying hazardous materials from using tracks within 2 miles of the U.S. Capitol.

“Federal law exempts this entire regime,” the railroads declared in the California lawsuit. Citing “a sweeping set of intricate federal statutes and regulations,” the lawsuit argues that allowing states to impose a “patchwork” of requirements on railroads essentially interferes with interstate commerce.

In a separate email statement Wednesday, BNSF spokeswoman Lena Kent said, “The state gives the industry no choice but to challenge the enforcement of the new law so as to not inhibit the efficiencies and effectiveness of the freight rail industry and the flow of commerce.”

Officials at the state Office of Spill Prevention and Response, the state agency listed as the defendant in the case, declined comment Wednesday, saying the agency does not publicly discuss pending litigation. Harris’ office is listed as a co-defendant.

The U.S. Department of Transportation in July proposed a rule that would require railroads to have oil spill response plans for trains carrying large volumes of crude oil. But that proposal could be months away from becoming law.

National transportation law and safety experts say the onus may be on California to prove that it is not usurping federal law or impeding interstate commerce.

“The state has to prove it is tackling what is a local or statewide issue, that it is not incompatible (with federal law) and doesn’t unreasonably burden interstate commerce,” said Brigham McCown, an attorney and former head of the federal Pipeline and Hazardous Materials Safety Administration. “That is a high bar.”

California might have an opening in a 2007 law Congress passed after the 9/11 Commission issued its recommendations. The 9/11 Act required rail companies to develop security plans and share them with state and local officials. The requirement was not limited to planning for a terrorist attack, but for any rail disaster, including derailments and spills involving hazardous materials.

“Those plans are required to be done and required to be shared,” said Denise Rucker Krepp, the former senior counsel on the House Homeland Security Committee, who wrote the provisions.

The Transportation Security Administration has not enforced the requirement, Krepp said, partly because of its focus on aviation security. But now that the railroads have taken California to court, Krepp said the state could use the 9/11 Act as leverage to get what it tried to get from the railroads through legislation.

“It’s never been tested like this,” Krepp said of the federal law.

It was unclear Wednesday whether the railroads also are challenging the section of the California law that imposes a 6.5-cent fee on oil companies for every barrel of crude that arrives in California on rail, or that is piped to refineries from inside the state. The resulting funds, estimated at $11 million in the first full year, will be allocated for oil spill prevention and preparation work, and for emergency cleanup costs. The efforts will be focused on spills that threaten waterways, and will allow officials to conduct response drills.

Crude-oil rail shipments have risen dramatically in the last few years. Those transports, many carrying an unusually flammable crude from North Dakota, have been involved in several spectacular explosions, including one that killed 47 residents of a Canadian town last year. Federal officials and cities along rail lines have been pushing for safety improvements. California officials have joined those efforts, saying they are concerned by estimates that six or more 100-car oil trains will soon be rolling through the state daily on the way to coastal refineries.

Harris, the state’s top law enforcement official, sent a letter to Benicia city planners challenging that city’s conclusion in an environmental impact report that the Valero rail shipment plan poses an insignificant threat of derailment. The report, she writes, “underestimates the probability of an accidental release from the project by considering only a fraction of the rail miles traveled when calculating the risk of a derailment.”

“These issues must be addressed and corrected before the City Council of Benicia takes action” on the project, Harris wrote.

Harris’ letter repeats earlier criticism leveled by the state Office of Spill Prevention and Response and state Public Utilities Commission.

The letter is one of hundreds Benicia has received in the past few months in response to the city’s initial environmental study. Benicia interim Community Development Director Dan Marks said the city and its consultants would review the comments and prepare responses to all of them, then bring those responses to the city Planning Commission for discussion at an as-yet undetermined date.

Under the Valero proposal, trains would carry about 1.4 million gallons of crude oil daily to the Benicia refinery from U.S. and possibly Canadian oil fields, where it would be turned into gasoline and diesel fuel. Valero officials have said they hope to win approval from the city of Benicia to build a crude-oil transfer station at the refinery by early next year, allowing them to replace more costly marine oil shipments with cheaper oil.

A representative for the attorney general declined comment when asked if Harris would consider suing Benicia to force more study of the project.

“We believe the letter speaks for itself,” spokesman Nicholas Pacilio said. “We expect it will be taken seriously.

Bakken Crude, Crude By Rail, Emergency Readiness & Response, Federal Regulation (U.S.), Hazmat notification, Local Regulation, Regional regulation

Author of the 9/11 Rail provisions: Rail security requires local oversight of Bakken trains

Repost from Government Security News

Rail security requires local oversight of Bakken crude shipments

By Denise Rucker Krepp, 2014-09-09

The District of Columbia Council uncovered a serious homeland security flaw this week that should raise red flags for mayors and town managers around the country. In the nation’s capitol, local transportation officials aren’t conducting oversight over CSX and the goods it transports through the city. Similarly, officials are unfamiliar with the rail carrier’s security policies. DC transportation officials, as traditionally classified by the federal government, aren’t rail stakeholders with a need to know this information.

Rail stakeholders, as defined by the Transportation Security Administration, are class 1 freight railroads (CSX, Norfolk Southern), Amtrak, and regional and short line railroads. Members of these companies advise TSA on rail security matters and TSA provides them with security information. This relationship is further solidified in TSA’s strategic plan. The exclusive club does not include first responders nor local representatives from the communities through which the rail carriers transport goods.

By not including cities and towns as part of their stakeholder group, TSA has weakened the nation’s rail security system. Mayors and town managers control the first responder assets that will be used when the next Lac Megantic or Lynchburg occurs. TSA, however, as DC transportation officials told the DC Council this week, doesn’t require local officials to review rail security plans covering their jurisdiction. Absent a comprehensive review, they won’t know if their assets are sufficient to respond to a significant accident.

TSA’s definition of rail stakeholder was upended this summer when Secretary of Transportation Foxx mandated that rail carriers share information regarding Bakken crude with local officials.  For the first time, a federal department broadened the definition to include first responders and emergency managers. The Implementing Recommendations of the 9/11 Commission Act included information sharing requirements but TSA never followed through with them.

The lack of knowledge is problematic because local officials approve rail permits for projects like the proposed Virginia Avenue Tunnel project in DC. These officials however, have not include homeland security threat information in their permit analysis. They couldn’t. Local officials didn’t have this information before Secretary Foxx’s order. Thankfully, his order will increase the flow of information to local officials and will enable them to finally complete a more thorough analysis before making critical permitting decisions.

It’s my hope that Secretary Foxx’s order will be formalized by the Department of Homeland Security. DHS indicated in its Spring 2014 unified regulatory agenda, that TSA will be drafting regulations concerning rail security plans and other measures outlined in the 9/11 Act. These regulations will firmly establish the federal government’s expectations and one of these should be the inclusion of state and local officials in the decision making process.

Denise Rucker Krepp is an attorney, transportation and energy consultant, former special counsel to DOT and the U.S. Congress, and author of the 9/11 Rail provisions.
Bakken Crude, Crude By Rail, Federal Regulation (U.S.), Hazardous cargo transparency, Hazmat notification

Norfolk Southern sues to block disclosure of crude oil shipments

Repost from McClatchy DC

Norfolk Southern sues to block disclosure of crude oil shipments

By Curtis Tate, McClatchy Washington Bureau, July 24, 2014 
A Norfolk Southern crude oil train barrels east through Columbia, Pa., on March 22, 2014. The train runs parallel to the Susquehanna River in Pennsylvania and Maryland on its way to the PBF Energy refinery in Delaware City, Del. On Wednesday, the railroad sued the state of Maryland to prevent the disclosure of information about the shipments, including their routes and frequencies. McClatchy and the Associated Press had requested the documents through the state Public Information Act. CURTIS TATE — McClatchy

WASHINGTON — A major hauler of crude oil by rail has sued the state of Maryland to stop the public release of information about the shipments, according to court documents.

The suit was filed Wednesday, the same day the U.S. Department of Transportation announced proposed rules to improve the safety of crude oil shipments by rail. Several serious oil train accidents resulting in spills, fires and fatalities have increased scrutiny on the industry.

Rail companies prefer to keep details about crude oil shipments confidential and some states have agreed, but others have decided that the records can be made public.

Several states – including California, Washington, Illinois and Florida – have fulfilled open records requests from news organizations and others. Though rail companies didn’t want the information made public, none had pursued a legal challenge to block its release.

The Maryland suit, triggered by a state Public Information Act request from McClatchy and the Associated Press, appears to be the first time a railroad has gone to court over the issue.

Norfolk Southern, a major Eastern rail company based in Norfolk, Va., filed the suit in the Circuit Court for Baltimore City to seek a temporary restraining order and a permanent injunction to prevent the release of the information the two news organizations requested.

The Maryland Department of the Environment had given the railroad until Thursday to challenge its decision to release the information. In a letter to McClatchy, the department wrote that it expected a similar lawsuit from CSX, a rival Eastern rail carrier.

Norfolk Southern declined to comment.

In May, following a series of derailments that involved crude oil from North Dakota’s Bakken shale region, the USDOT required rail companies to notify state emergency management officials about shipments of 1 million gallons or more of Bakken oil within state borders.

The notifications were intended primarily to help fire departments better prepare for potential derailments. Railroads asked state officials to sign confidentiality agreements _ citing concerns about security and competition _ and initially, the USDOT advised states to comply.

But in response to numerous state open-records requests, the department eventually conceded that no federal law protected the information from public disclosure.

According to the suit filed by Norfolk Southern, Thomas Levering, the director of emergency preparedness and planning for the Maryland Department of the Environment, signed such a confidentiality agreement May 28.

McClatchy filed a Public Information Act request for the information on June 10.

On June 13, the railroad received a letter from the office of Maryland Attorney General Douglas Gansler voiding the confidentiality agreement. It said Levering had “no legal authority” to sign the agreement and that it was in conflict with the state open records law. Gansler’s office declined to comment for this story.

On June 27, Norfolk Southern sent a letter objecting to the attorney general’s claims. The railroad argued that the crude oil shipment information enjoyed “mandatory protection” under state law because it contained “confidential commercial information.”

The railroad also wrote that state law protects information that could “jeopardize the security of a facility or facilitate the planning of a terrorist attack.”

The federal government has nearly sole jurisdiction over rail transportation and transportation security, and neither the USDOT or the Transportation Security Administration considers information about crude oil shipments by rail “security sensitive.”

The Norfolk Southern suit provides a glimpse of the rail industry’s thinking on the issue. In an affidavit that accompanies the injunction request, the railroad concedes that much of the information in the crude oil notifications is already publicly available.

Michael McClellan, Norfolk Southern’s vice president for industrial products, wrote that information about rail lines and the customers they serve is available from various sources, including rail enthusiast websites and the railroads themselves.

He also noted that information about the processing capacity of oil refineries and rail terminals can be found on Wikipedia. But he said specific knowledge about crude oil routes and volumes would give an advantage to the railroad’s competitors, including other train lines, as well as trucking, pipeline and marine vessel operators, potentially reducing Norfolk Southern’s market share.

In another affidavit, Carl Carbaugh, the railroad’s director of infrastructure security, wrote that terrorist Internet postings and publications have identified the U.S. freight rail network as a potential target.

Carbaugh wrote that “understanding where and when trains operate is difficult to discern without routing information or knowing type and volume of commodity shipped,” and publicizing such details “undercuts an inherent strength” in the industry’s risk profile.

But he also conceded that it’s impossible to build a fence around 250,000 miles of track across the country. The biggest security problem most railroads face is from trespassers and theft of consumer goods from stopped trains.

Of the roughly 16 major derailments involving shipments of crude oil or ethanol since 2006, none was the result of a terrorist attack. Though some of those accidents are still under investigation, most were caused by mechanical failure or human error.