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.”