California’s new Rail Hazmat Fee Illegal Claims Railroads
By J Nicholson, August 11, 2016
As reported in Bloomberg BNA, California’s new fee on rail deliveries of crude oil and certain other hazardous materials is illegal, the nation’s two largest railroad companies said in a lawsuit ( BNSF Railway Co. v. California State Board of Equalization, N.D. Cal., No. 16-cv-04311-JCS, 7/29/16 ).
Filed in federal court in San Francisco, the complaint challenges a newly approved regulation requiring railroad companies to collect from their customers $45 for each rail car carrying 25 specified hazardous materials into the state. To be paid to the state’s Board of Equalization, the fee is earmarked to help the state prepare for hazardous material incidents.
The federal ICC Termination Act of 1995, the Hazardous Materials Transportation Act and the Railroad Revitalization and Regulatory Reform Act of 1976 preempt the fee implemented under S.B. 84, a budget bill enacted in 2015, the complaint said.
Plaintiffs want an order blocking the state from collecting the fee.
“This hazmat charge defies federal law and economic logic,” the complaint filed July 29 by BNSF Railway Co. and Union Pacific Railroad Co. said. “If exclusive federal jurisdiction over the economic relationship between railroads and their customers means anything, it means that a State cannot establish the charges to be collected for rail transportation, order a railroad to collect them from its customers, and depress rail revenues and customer demand in the process.”
Chemicals Covered by Fee
California’s Office of Emergency Services adopted the fee regulation in June. Expected to take effect later this year, the fee applies to rail cars containing acetonitrile, certain alcohols, anhydrous ammonia, ammonium hydroxide and calcium hypochlorite. It also applies to chlorine, certain corrosive liquids, diesel fuel, environmentally hazardous substances, ethanol, gasoline, hydrogen peroxide, liquefied petroleum gas, liquefied gas, methanol, methyl ethyl ketone, nitric acid, petroleum crude oil, phenol, phosphoric acid, potassium hydroxide, propylene, sodium hydroxide, sulfuric acid, toluene and vinyl acetate.
California’s fee only applies to rail deliveries, no other type of delivery of hazardous materials. The Interstate Commerce Clause and the federal hazardous materials law forbid states from discriminating against interstate commerce, the complaint said.
Benjamin J. Horwich of Munger, Tolles & Olson LLP is representing BNSF Railway. Union Pacific’s counsel are from Sidley Austin LLP and include Carol Lynn Thompson and in-house attorney Melissa B. Hagan.
Repost from Rocklin & Roseville Today [Editor: Be aware that these exercises and the promo “news accounts” that follow them are not much more than rosy public relation spins on the reality of catastrophic spills, fires and explosions resulting from oil train derailments. We can hope the first responders learned something, but no one is telling them – or us – that in a real crude oil explosion and fire, the ONLY thing to be done is evacuate and let it burn. See previous announcement details here, additional coverage by the City of Roseville. and the event Goals and Objectives worksheet here. – RS]
Video Recap: Roseville Mass Casualty Drill
Placer County / Thursday, May 19, 2016
ROSEVILLE, Calif. — First responders from 35 local agencies converged on Roseville to rescue the victims of a staged but horrific accident: a collision of a train carrying volatile crude oil and a public transit bus. But the evacuation and treatment of the injured was just the beginning.
Fire fighters, police and other emergency workers then had to contend with leaking oil from one derailed train car, an ammonia gas leak from another and a fire when the crude ignited. First word of the accident reached them at around 8:15 a.m. By 11:30 a.m., exercise players had evacuated 57 injured bus riders to area hospitals (several by helicopter), built a temporary dam to contain the oil spill, extinguished the fire and coordinated the (pretend) evacuation of 8,000 area residents. Thank goodness it was just a drill.
“If such a large disaster ever did happen here, we’d need everyone to be on the same page and working together as effectively as possible, because lives depend on it,” said John McEldowney, program manager for Placer County’s Office of Emergency Services. “We definitely learned some lessons today, but overall I couldn’t have been more impressed with the professionalism and skill of our first responders. If the worst happens, I’m confident we’ll be in the best of hands.”
The exercise took place at the Roseville Fire Department Training Center in Roseville, near the Union Pacific switchyards, with medical evacuations staged in the parking lot of Denio’s Market up the road.
Placer County’s Office of Emergency Services held the exercise to give first responders from various agencies the opportunity to practice working together and test how well they can come together in a crisis. It was also a great chance to test the county’s recently finalized oil-by-rail response guide, which was developed to aid our first responder fire and law enforcement community and specialized response teams in the unlikely event an oil train disaster were to occur here.
The Red Cross coordinated for the participation of nearly 60 volunteers, most of them serving as mock accident victims.
For the quickest warning and information in a real crisis, Placer residents are encouraged to sign up for the Placer Alert emergency notification system at placer-alert.org.
AP: Railroads beat back new safety rules after derailments
By Matthew Brown and Michael Kunzelman, December 05, 2015
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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