Category Archives: Freedom of Information Act (FOIA)

Maine’s Right-to-Know Advisory Committee to reconsider hiding oil train data

Repost from the Penobscot Pilot

State to reconsider hiding oil train data

By By Dave Sherwood, Maine Center for Public Interest Reporting, August 17, 2016 – 5:15pm
Photo courtesy of Roy Luck. Creative Commons Attribution 2.0 Generic license / Wikimedia

AUGUSTA — The state committee charged with promoting transparency in government is asking lawmakers to overhaul a 2015 law that made secret information about the transportation of crude oil and other hazardous materials by railroad through Maine.

The legislature’s Right-to-Know Advisory Committee voted Wednesday to send a letter to the Judiciary Committee recommending that it reconsider the controversial law in order to ensure that the government is not keeping railroad data secret unnecessarily.

The legislation in question, enacted in October 2015, initially prevented officials from divulging information that it had previously provided to the public about rail shipments of hazardous materials passing through the state. The law took effect more than two years after a runaway oil train killed 47 people and leveled the town of Lac-Megantic, Quebec, just across the border from Maine.

Lawmakers and railroad lobbyists said secrecy was needed to protect confidential business information and prevent terrorist attacks, but transparency advocates argued the public has the right to know what the trains are carrying.

Committee members sided Wednesday with transparency advocates, asking lawmakers in the letter to carefully weigh the public’s interest in having access to the information against potential safety concerns or business interests.

“We recommend the Judiciary Committee consider submitting a committee bill…in a manner that allows the most meaningful participation by stakeholders, state and local government entities and other members of the public,” states the letter, which will be submitted to lawmakers before the upcoming legislative session begins in December.

Eroding FOAA

The controversy over the oil train data underscores the gradual erosion of Maine’s 40-year old Freedom of Access Act, which was originally intended to ensure citizens have access to government information but has become increasingly riddled with loopholes.

As of 2015, state legislators had approved at least 450 exceptions to the law, each of which allows the government to keep certain information secret from the public. Last year’s railroad law added nearly 200 pages of chemicals shipped by rail to the growing list of secrets kept by the government, according to a memo filed with the committee by the Department of Environmental Protection in July.

Environmental officials questioned whether the exception was necessary.

“The additional burden of reviewing this list….provides no increase in safety for the citizens of Maine,” DEP officials wrote to the Right-to-Know advisory committee.

Right-to-Know Committee member Judy Meyer, the executive editor of the Lewiston Sun Journal, noted in July that it was ironic that the law made secret the contents of railroad cars that any citizen could observe passing through a railroad crossing.

“To make private these records that are rolling through our city streets is odd to me,” Meyer said.

The committee’s recommendation to clarify the law follows a February 2016 investigation by the Maine Center for Public Interest Reporting that showed lawmakers who approved the bill repeatedly bypassed safeguards designed to prioritize the public’s right-to-know over private business interests.

Following a Freedom of Access Act request by the Center, environmental officials consulted with the Attorney General and once again began providing railroad data to the public, but in July admitted there was still confusion over the law’s intent.

“The Department…seeks to clarify the exact information that is exempted by the law,” according to the DEP memo submitted to the committee.

RAILROAD HAZMAT

Interest in railroad cargoes through Maine piqued in early 2013, when the state became top exporter of crude oil by rail. Maine, the country’s easternmost border state, was a key transit point between the oil fields of western North America and the 300,000-barrel-per-day Irving oil refinery in neighboring Saint John, New Brunswick, one of New England’s largest suppliers of gasoline.

After the Lac-Megantic accident, environmentalists began protesting the cargoes, blocking railroad tracks and calling for a ban on its transport.

Around the same time, documents uncovered by the Maine Center For Public Interest Reporting investigation showed the railroad industry began lobbying to keep data on its cargoes secret from the Maine public.

Former Rep. Mike Shaw, D-Standish, the legislator who sponsored the bill and a railroad conductor by trade, had initially argued the legislation was needed to ensure railroads provided emergency officials with details about hazardous material shipments through Maine.

But the 80-word bill that emerged last year did nothing to make railroads provide information to local first responders. Instead, it only forced the state to keep those details secret from the public when railroads volunteered the data.

The legislation, which created the 460th exception to Maine’s Freedom of Access Act, also contradicted the findings of federal regulators. A year earlier, they had determined that information about oil train shipments was “neither security-sensitive nor commercially-sensitive,” according to a notice published in the Federal Register.

The bill nonetheless became law in June 2015 over a sharply worded veto from Gov. Paul LePage.

When presented with these findings in an interview in January, former Rep. Shaw, who resigned from the legislature in August for personal reasons, said he was willing to encourage lawmakers to amend the bill to allow officials to disclose volumes of crude oil moving through Maine.

“Keeping them confidential was really never my intention,” said Shaw.

Dave Sherwood is a contributing writer to the Maine Center for Public Interest Reporting, a nonpartisan, non-profit news service based in Augusta.

    Held up in court for a year, Maryland oil train reports outdated

    Repost from McClatchyDC

    Held up in court for a year, Maryland oil train reports outdated

    By Curtis Tate, September 12, 2015

    HIGHLIGHTS
    •  McClatchy received reports it asked for in 2014
    •  Documents contained data previously revealed
    •  Economics of crude by rail have shifted since

    After more than a year, McClatchy finally got the oil train reports it had requested from Maryland.

    And they were badly out of date.

    Last year, McClatchy filed open-records requests in about 30 states for the documents, and was the first news organization to do so in Maryland, in June 2014.

    Maryland was poised to release the records in July 2014, when two railroads, CSX and Norfolk Southern, sued the state Department of the Environment to block the disclosure.

    Finally last month, a state judge ruled in the favor of the release, marking the first time a court had affirmed what many other states had already done without getting sued.

    The documents McClatchy and other news organizations ultimately received were dated June 2014, not long after the U.S. Department of Transportation began requiring the railroads to notify state officials of shipments of 1 million gallons or more of Bakken crude oil.

    After more than a year, however, the economics of shipping crude by rail had changed substantially.

    Amid a slump in oil prices, refineries once receiving multiple trainloads of North American crude oil every day have switched, at least temporarily, to waterborne foreign imports.

    The trend is reflected from the East Coast to the West Coast, where long strings of surplus tank cars have been parked on lightly used rail lines, generating rental income for small railroads but also the ire of nearby residents.

    The documents released in Maryland show that in June 2014, Norfolk Southern was moving as many as 16 oil trains a week through Cecil County on its way to a refinery in Delaware.

    But McClatchy has known that since August 2014, when it received a response to a Freedom of Information Act request from Amtrak.

    The Delaware News Journal reported that the PBF Refinery in Delaware City, Del., now receives only about 40,000 barrels a day of crude by rail. That’s about 56 loaded tank cars, or half a unit train, nowhere close to the volume of mid-2014.

    The June 2014 Maryland documents also show that CSX was moving as many as five oil trains a week on a route from western Maryland through downtown Baltimore toward refineries in Philadelphia.

    But that had been clear since at least October 2014, when the Pennsylvania Emergency Management Agency released its oil train reports showing an identical number of CSX trains crossing from western Pennsylvania into Maryland, then back into southeast Pennsylvania.

    CSX told the Baltimore Sun that it had not regularly moved a loaded oil train through Baltimore since the third quarter of 2014. The company had earlier told the newspaper that it moved empty oil trains through the city and state.

    Federal regulators never required railroads to report empty oil train movements.

    The vast majority of loaded CSX oil trains move to Philadelphia via Cleveland, Buffalo, Albany, N.Y., and northern New Jersey, according to records from Ohio, Pennsylvania and New York.

      Maryland judge orders railroads to release oil train reports

      Repost from McClatchyDC

      Maryland judge orders release of oil train reports

      HIGHLIGHTS
      • Case marks first time railroads have lost on the issue in court
      • Judge not persuaded that release would harm security, business
      • Companies that filed 2014 lawsuit have until Sept. 4 to appeal

      By Curtis Tate, August 17, 2015
      Tank cars loaded with crude oil head east at Hurricane, W. Va., in May 2014. A Maryland judge has ordered the release of oil train reports to McClatchy and other news organizations. West Virginia and a handful of other states agreed to keep the the reports confidential.
      Tank cars loaded with crude oil head east at Hurricane, W. Va., in May 2014. A Maryland judge has ordered the release of oil train reports to McClatchy and other news organizations. West Virginia and a handful of other states agreed to keep the reports confidential. Curtis Tate – McClatchy

      WASHINGTON – A Maryland judge rejected two rail carriers’ arguments that oil train reports should be withheld from the public, ordering them released to McClatchy and other news organizations that sought them.

      The ruling isn’t the first time railroads have lost their bid to keep the oil train reports secret, but it is the first court decision recognizing the public’s right to see them.

      The U.S. Department of Transportation began requiring in May 2014 that railroads inform states of large shipments of crude oil after a series of derailments with spills, fires, explosions and evacuations. Since February, six more major oil train derailments have occurred in North America.

      Nonetheless, some railroads have continued to press their case that the reports should be exempt from disclosure under state open records laws. Most states shared the documents anyway, and Pennsylvania and Texas did so after McClatchy appealed. Maryland is the only state that was taken to court after it said it would release the reports.

      Norfolk Southern and CSX sued the Maryland Department of the Environment in July 2014 to stop the state agency from releasing the records to McClatchy and the Associated Press. They have until Sept. 4 to appeal the decision, issued Friday by Judge Lawrence Fletcher-Hill of the Circuit Court for Baltimore City.

      Both companies, which transport crude oil to East Coast refineries concentrated in Delaware, Pennsylvania and New Jersey, said they would review the decision.

      Dave Pidgeon, a spokesman for Norfolk Southern, said the company would “respond at the appropriate time and venue.”

      Melanie Cost, a spokeswoman for CSX, said the railroad “remains committed to safely moving these and all other shipments on its network.”

      The ruling isn’t the first time railroads have lost their bid to keep the oil train reports secret, but it is the first court decision recognizing the public’s right to access them.

      In his 20-page opinion, Fletcher-Hill was not persuaded by arguments that releasing the oil train reports would harm the railroads’ security and business interests. He also dismissed the relevance of the U.S. Department of Transportation’s May final rule addressing the safety of oil trains. The companies had argued that the final rule supported their claims.

      He also ordered the companies to pay any open court costs.

      In a statement, Maryland Secretary of the Environment Ben Grumbles said the agency was pleased with the ruling and that it is “committed to transparency in government.”

      Rail transportation of Bakken crude oil, produced through hydraulic fracturing of shale formations in North Dakota, has grown exponentially in the past five years. However, a series of fiery derailments, including one in Quebec in 2013 that killed 47 people, have raised numerous concerns about public safety, environmental protection and emergency planning and response.

      U.S. Transportation Secretary Anthony Foxx issued an emergency order on May 7, 2014, that required any railroad shipping 1 million gallons or more of Bakken crude oil through a state to inform that state’s emergency response commission what routes the trains would take and which counties they would cross, as well as provide a reasonable estimate of how many trains to expect in a week.

      Beginning in June 2014, McClatchy submitted open records requests in 30 states for the oil train reports, including Maryland.

      McClatchy was able to glean some of the details in the Maryland report through a Freedom of Information Act request to Amtrak, which owns part of Norfolk Southern’s oil train route in the state. The subsequent release of oil train reports in Pennsylvania revealed more about such operations in Maryland.

      On Monday, Pennsylvania Gov. Tom Wolf released an 84-page assessment of oil train safety in the state, which examined derailment risk, tank car failures and regulatory oversight. Some Maryland lawmakers have called for the state to perform a similar assessment.