A federal lawsuit filed by the Swinomish Indian tribe seeks to ban BNSF Railway from transporting Bakken crude oil across tribal lands. The line in question carries oil trains to the Tesoro refinery in Anacortes.
By Hal Bernton, April 7, 2015 at 8:37 pm, Updated April 8, 2015 at 12:10 pm
A view of the Tesoro refinery, as seen from Cap Sante lookout in Anacortes. Photographed on July 16, 2012. (John Lok / The Seattle Times)
The Swinomish Indian Tribal Community on Tuesday went to federal court to block BNSF Railway from sending 100-car oil trains through reservation lands, claiming the company is violating an easement that sharply restricts rail traffic.
The easement signed by the railway’s predecessor company in 1991 permits only two trains a day of 25 cars or less from transiting the reservation. It also calls for the railroad company to get permission from the tribe to increase traffic.
The lawsuit filed in U.S. District Court in Seattle asks the court to permanently ban the railroad from shipping Bakken shale crude oil across tribal land, asserting that the railroad never sought permission for the oil trains.
“A deal is a deal,” said Swinomish Chairman Brian Cladoosby in a statement released Tuesday. “Our signatures were on the agreement with BNSF, so were theirs. So was the United States. But despite all that, BNSF began running its Bakken oil trains across the reservation without asking, and without even telling us.”
The Swinomish rail line that traverses tribal land on Fidalgo Island enables trains to reach a Tesoro refinery in nearby Anacortes.
A BNSF spokesman, in a statement released Tuesday said, “We have received the complaint and are reviewing it.”
The tribal lawsuit is part of an intensifying backlash in Washington and elsewhere in North America against shipping Bakken shale crude from North Dakota and Montana. Production from those fields has surged with the development of new fracking techniques.
Since 2013, a series of train derailments resulted in fiery explosions of Bakken crude, with four of those accidents occurring since early February. Bakken crude has a higher volatility than many other crudes, due to elevated levels of gases such as ethane, propane and butane
At Seattle’s Emergency Operations Center on Tuesday, Mayor Ed Murray, King County Executive Dow Constantine and other officials joined U.S. Sen. Maria Cantwell, D-Wash., to discuss threats posed by these accidents.
“In Canada nearly two years ago, a mile-long train derailed and the ensuing explosion cost 47 people their lives,” Cantwell said. “That blast leveled a half-mile radius. If that happened in Seattle, the effects would be catastrophic.”
“In Seattle, an incident of this type could impact tens of thousands of residents.”
Cantwell introduced legislation last month that would require the federal Transportation Department to regulate the volatility of crude oil shipped by trains.
The bill also would increase funding for first responders and require more disclosures from railroads about train routes. The railroads would also have to plan for worst-case derailment scenarios.
In Washington last year, up to 19 trains a week crossed parts of the state with crude oil that ends up at state or California refineries.
Some of those trains now cross Swinomish lands on the way to the Tesoro refinery. The number of those trains could rise if Shell gets approval for a rail facility at its refinery in Anacortes.
As the trains move through tribal lands, they pass close by a casino, a lodge and other development.
“Based on the demonstrated hazards” of Bakken shale crude, the tribe is “justifiably and gravely concerned” with the oil shipments, the lawsuit asserts.
The railroad’s 1991 easement across the reservation lands resulted from the settlement of an earlier tribal lawsuit that alleged that BNSF’s predecessor company was trespassing on their lands with its trains during most of the past century.
The settlement called for periodic railroad disclosures “as different products, or commodities, are added or deleted.” It also called on the tribe not to “arbitrarily withhold permission to increase the number of trains or cars when necessary to meet shipper needs.”
The crude-oil shipments across tribal lands began in late 2011, but tribal officials said they were never informed in advance, and have never authorized that train traffic.
“We told BNSF to stop, again and again,” Cladoosby said. “It’s unacceptable for BNSF to put our people and our way of life at risk without regard to the agreement we established in good faith.”
By Alison Sider, April 6, 2015 3:30 p.m. ET
In March, oil-train traffic was down 7% from a year earlier. The slowdown comes amid safety concerns. Photo: David Paul Morris/Bloomberg News
The growth in oil-train shipments fueled by the U.S. energy boom has stalled in recent months, dampened by safety problems and low crude prices.
The number of train cars carrying crude and other petroleum products peaked last fall, according to data from the Association of American Railroads, and began edging down. In March, oil-train traffic was down 7% on a year-over-year basis.
Railroads have been a major beneficiary of the U.S. energy boom, as oil companies turned to trains to move crude to refineries from remote oil fields in North Dakota and other areas not served by pipelines. Rail shipments of oil have expanded from 20 million barrels in 2010 to just under 374 million barrels last year, according to the U.S. Energy Information Administration.
About 1.38 million barrels a day of oil and fuels like gasoline rode the rails in March, versus an average of 1.5 million barrels a day in the same period a year ago, according to a Wall Street Journal analysis of the railroad association’s data.
Oil-train traffic declined 1% in the fourth quarter of 2014 as crude-oil prices started to tumble toward $50 a barrel. More recently, data from the U.S. Energy Department show oil-train movements out of the prolific Bakken Shale in North Dakota have leveled off as drillers there have begun to pump less, though oil-train shipments from the Rocky Mountain region have risen.
The slowdown comes as federal safety experts call for stronger tank cars. On Monday the National Transportation Safety Board recommended an aggressive five-year schedule for phasing out or upgrading older railcars used to haul crude-oil. A string of oil train accidents in recent months have resulted in spills, intense fires and community evacuations. The NTSB said railcars in use today rupture too quickly and aren’t fire-resistant enough.
A few incidents have involved more modern tank cars—the CPC-1232 model. The NTSB also said the new railcar’s design isn’t sturdy enough. “We can’t wait a decade for safer rail cars,” said NTSB Chairman Christopher A. Hart Monday in a letter to federal transportation regulators.
Opponents of a fast phaseout have said that if tougher standards are introduced too quickly it will create a railcar shortage and make some oil train operations unprofitable.
Many refiners, including Philadelphia Energy Solutions, say they are still committed to shipping oil on trains. Chief Executive Phil Rinaldi in December said he likes that railroads don’t require long-term contractual agreements the way pipelines do. That allows his plant managers to buy crude only when it’s needed.
With pipelines, “you have to pay for that transit whether it makes sense or not,” Mr. Rinaldi said. “With rail, that’s not the case.”
Railroad operators have warned investors that their outlook for transporting crude is slightly weaker than it was last year, said David Vernon, a rail analyst at Sanford C. Bernstein & Co.
BNSF Railway Co., which is responsible for about 70% of U.S. oil-train traffic, operated as many as 10 trains a day last year, but is averaging nine a day now, a spokesman said.
BNSF Engineer Who Manned Exploding North Dakota “Bomb Train” Sues Former Employer
By Steve Horn, April 2, 2015 13:54
A Burlington Northern Santa Fe (BNSF) employee who worked as a locomotive engineer on the company’s oil-by-rail train that exploded in rural Casselton, North Dakota in December 2013 has sued his former employer.
Filed in Cass County North Dakota, the plaintiff Bryan Thompson alleges he “was caused to suffer and continues to suffer severe and permanent injuries and damages,” including but not limited to ongoing Post-Traumatic Stress Disorder (PTSD) issues.
Thompson’s attorney, Thomas Flaskamp, told DeSmogBlog he “delayed filing [the lawsuit until now] primarily to get an indication as to the direction of where Mr. Thompson’s care and treatment for his PTSD arising out of the incident was heading,” which he says is still being treated by a psychiatrist.
The lawsuit is the first of its kind in the oil-by-rail world, the only time to date that someone working on an exploding oil train has taken legal action against his employer using the Federal Employers’ Liability Act.
Image Credit: State of North Dakota District Court; East Central Judicial District
“Run for His Life”
In the aftermath of the Casselton explosion, rail industry consultant Sheldon Lustig told the Associated Press that freight trains carrying oil obtained via hydraulic fracturing (“fracking”) in North Dakota’s Bakken Shale basin are akin to “bomb trains,” putting the now oft-used term on the map for the first time.
Since Casselton, several other oil-by-rail explosions and disasters have ensued in the U.S.
Thompson experienced the wrath of an exploding “bomb train” up close and personal.
Flaskamp told The Forum newspaper in Fargo, North Dakota that Thompson had to “run for his life” to escape the train he was manning once it derailed after colliding with an oncoming grain train.
“Behind him, tank cars were starting to derail, catch fire and explode,” Flaskamp told The Forum of Thompson, who is in his 30s and is currently in school to obtain a teaching degree.
The plaintiffs allege BNSF, owned by multi-billionaire Warren Buffett, violated the Federal Employers’ Liability Act in multiple ways.
They include “failing and neglecting to provide [Thompson] with a reasonably safe place to work” and “failing to warn [him] of the dangers of hauling explosive oil tank railcars and the tendencies of these railcars to rupture and explode upon suffering damage.”
Image Credit: State of North Dakota District Court; East Central Judicial District
Put another way, BNSF may have known quite a bit more about the danger of carrying Bakken fracked oil than it ever told Thompson. And that will likely serve as a contentious point in the case as it snakes its way forward in Cass County court.
“BNSF knew or should have known of the dangerous nature of the cargo it required its crews to transport and should have exercised great care in its transport,” Flaskamp told DeSmogBlog. “The Answer to the complaint which will be filed by the BNSF will be telling as to their theories of defense.”
Repost from WDAZ TV, Grand Forks ND [Editor: By announcing these measures, BNSF is trying to put a happy face on continuing potential for train catastrophes. These measures won’t help much, and notice they still are expecting an oil industry “phase-out” of DOT-111 cars rather than an immediate ban. – RS]
BNSF trains slow down: Railway announces plans to improve safety measures for oil shipments
By April Baumgarten / Forum News Service, Mar 29, 2015 at 11:32 a.m.
Click to visit WDAZ for 30-second news clip
Bismarck, ND (Forum News Service) – One of the top rail companies in the U.S. has announced steps to improve rail safety in North Dakota.
BNSF Railway Executive Chairman Matt Rose outlined plans recently with Gov. Jack Dalrymple to implement additional measures throughout the company’s national rail system. BNSF also informed its customers on Friday about the safety measures, according to a news release.
“Railroad operations, equipment and maintenance are critical elements in our overall goal to improve rail safety, and I commend BNSF for taking these significant steps,” Dalrymple wrote in the release. “At the same time, we must move forward on other important aspects of rail safety including the need for new federal tank car standards and greater pipeline capacity.”
BNSF began a move Wednesday to have all of its oil trains reduce speeds to 35 mph through all municipalities with 100,000 or more residents. The speed reduction is temporarily in place until its customers phase out DOT-111 tanks cars from service, BNSF spokesman Mike Trevino said Saturday. Phasing out of the older cars, which will be replaced by CPC-1232 railcars to meet federal safety standards, is expected to begin in May, and BNSF hopes to complete the process by the end of the year. When that happens, BNSF will reconsider the speeds.
The shipping companies, not BNSF, own the cars, so the railway company has to wait on its customers to make the transition to the newer cars. The move was a voluntary part of an agreement with the U.S. Department of Transportation, Trevino said.
“What we want to do is do what we can to improve the safety of our operation,” he said. “What we can do is slow those trains down in larger communities.”
Rep. Corey Mock, D-Grand Forks, said it was good to see BNSF taking proactive action to address railroad and safety weaknesses, though there are other measures he would like to see rail companies consider.
“I think many of our rural communities would also argue that their lives are no less at risk,” he said.
The only city in North Dakota that would fall under the reduced-speed measure is Fargo. The state’s largest city had an estimated population of about 113,700 people in 2013, according to the U.S. Census. Bismarck, the second largest city, had 67,000. Grand Forks, which is a collector for train traffic at its switch station, was home to about 55,000 residents.
“That doesn’t do a whole lot to secure our other communities,” Mock said.
Slowing the trains down in all communities would reduce the amount of product BNSF could ship and would burn up time, Trevino said. It would also impact trains hauling other commodities, such as grain or anhydrous ammonia. He added the measures go beyond the federal standard.
“If you slow those trains all around the network, then that (network) becomes as fast as that train,” he said.
Residents in Grand Forks feel uneasy when they see the “iconic-black, cylindrical tanks,” Mock said. Fortunately, Grand Forks has a train junction for switching lines, and many trains are coming through at a slow speed, meaning risk of a derailment is greater in cities where trains are traveling at higher speeds.
Still, residents are still curious and ask, “what if.”
“When a person sees a train rolling through town that has those iconic-black tanks running a mile long, there is a little apprehension,” he said.
Rep. Andrew Maragos, R-Minot, said he was pleased when progress is made, adding he is comfortable with the governor’s response.
“If he feels the railroads are taking positive steps, that’s always good,” Maragos said.
Trevino said BNSF has also increased rail detection testing frequencies 2 ½ times federal standards, which tests the quality of the rail. It has also reduced tolerance for removing a car from a train for a potential defect, meaning the bar is set higher for a car’s quality and safety features.
For example, if a wheel is defective, it may be removed from the train immediately.
Previous derailments
Both North Dakota and rail companies have come under fire after several oil trains have derailed across Northern America, the most infamous being the Lac-Megantic, Quebec, derailment in July 2013. A runaway Montreal, Maine and Atlantic Railway train carrying Bakken crude went off the tracks and exploded, killing 47 people and destroying the center of the city.
Closer to home, a BNSF train carrying crude hit a derailed grain train in December 2013 near Casselton, forcing it off the tracks and resulting in a fiery explosion. No injuries or deaths were reported, though a temporary evacuation was put into place. It was the fifth derailment near the city in 10 years, and another BNSF train with lumber and empty crude cars derailed in November.
Both trains used DOT-111 cars.
More recently, a CSX Corp. train derailed Feb. 16 near Mount Carbon, W. Va. Two Canadian National Railway Co. trains derailed in Ontario between February and March.
As a result, both Canada and the U.S. have looked into implementing measures to prevent disasters. The Pipeline and Hazardous Materials Safety Administration issued orders to phase out the DOT-111 cars. While that is not expected to occur until May, Dalrymple urged U.S. Transportation Secretary Anthony Foxx in a recent phone call to issue the new tank standards “as soon as possible,” according to the release. Dalrymple also told Foxx that pipelines offer the safest mode of transporting crude oil to market.
Action in North Dakota
North Dakota has also attempted to tame the flames. The state Industrial Commission unanimously approved a requirement for all oil producers to install and utilize oil-conditioning equipment to reduce the volatility of Bakken crude. The order would bring the vapor pressure of every barrel of oil produced in North Dakota under 13.7 pound per square inch before it is shipped. Crude producers must comply starting Wednesday.
Dalrymple and the Public Service Commission have also proposed a state-run railroad safety program and pipeline integrity program “that would complement federal oversight in North Dakota,” according to the release. The proposal would cost North Dakota $1.4 million for three position to inspect railroad tracks. Another three state employees would inspect pipelines that transport oil and other liquids to market.
Dalrymple’s release also comes the same week the North Dakota House voted down legislation requiring the state Department of Transportation to report on rail safety issues to a legislative committee. Senate Bill 2293, sponsored by Sen. George B. Sinner, D-Fargo, proposed spending $6 million every two years to carry out committee recommendations, but was criticized by Republicans because was “an unnecessary, duplicative requirement” since DOT already conducts studies, Rep. Dan Ruby, R-Minot, told Forum News Service this week.
The House voted down the bill 34-55 on Monday. Mock was disappointed with the bill’s failure, stating it was “incredibly shortsighted for the Legislature to fail that measure.”
“The legislators owe it to the people back home to get these reports on a more timely basis — find out what companies, like BNSF, are doing and make sure we are updated on the progress of railroad safety enhancements.” he said.
Sinner said the release is likely a response to the press coverage of SB 2293’s failure, and voting the bill down was political. While North Dakota has started to address the issues, Sinner said the state needs to do more.
He pointed out that all the legislators that voted against the bill were Republican.
“(The Republicans) have not offered one bill on rail safety this Legislature,” he said. “We need to have a bipartisan effort on this issue. This issue is too important.”
Maragos, who also supported the bill, said the state is addressing safety issues as they come to light. While it was hard for him to say if what leaders are doing is enough, he feels the state is doing everything it can to prevent accidents.
“For some people, it is never enough,” he said. “For others, it’s pushing too hard.”
He added: “When we see that isn’t enough, we’ll just move in to improve or strengthen the policies.”
Making rail safety a priority
BNSF plans to invest more than $335 million in track maintenance and capital improvement projects in North Dakota this year, including in Dickinson, Jamestown, Devils Lake and Hillsboro.
There are many products that are shipped from the state across the continent, Mock said, and other states are looking to North Dakota for assurance that cargo is packaged correctly.
He pointed to a derailment in Minot, where a Canadian Pacific train carrying anhydrous ammonia derailed on Jan. 18, 2002. The incident released approximately 146,700 gallons of anhydrous, and a poisonous gas cloud hovered over the city, causing the death of at least one person and injuring more than 322 people, according to the National Transportation Safety Board report. The disaster also prompted an evacuation and caused more than $10 million in damages and environmental remediation.
Mock said had he not been allowed to leave work an hour early due to a slow night, he would have been caught in the fumes.
“Railroad safety is not just a Bakken crude issue,” he said. “The one state that should be taking railroad safety the most seriously is North Dakota, because our reputation is on the line.”
Like residents across the state, Mock would like to see more done. Railroad safety is a comprehensive issue that requires realistic standards, he said.
About 90 percent of North Dakota’s exports go out on rail, Sinner said. If a train carrying cargo from the state has an accident that could have been prevented, North Dakota’s industries will be affected, he added.
“The economic security of this state relies on the rail industry,” he said.
Maragos said the railroad companies are doing what they can to improve safety.
“With the amount of rail traffic and understanding that mechanical things break, even (BNSF), which is moving most of the oil, I think they are very sensitive to it, and I think they’re the best job they can in addressing safety concerns,” he said.
Trevino concurred, stating BNSF is doing everything it can to keep communities and its employees safe.
“We understand how to run our railroad,” he said. “We understand better than anyone the kinds of steps that can be taken to prevent loss, to mitigate potential loss, should an event occur, and respond to an event.”
Though Sinner is not sure to what extent, he said he plans to follow the issue closely and find ways to improve railroad safety.
“We need to do something with the increase in rail traffic and trains traveling around our state,” he said. “We need to make sure rail safety is a real priority.”
The Press was unable to contact Dalrymple on Saturday.
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