Tag Archives: Department of Transportation (DOT)

Crude By Rail, DOT-111, Emergency Readiness & Response, Federal Regulation (U.S.), Hazmat notification, Local Regulation, Massive increase in crude-by-rail, Positive Train Control, Rail inspection, Rail routing, Risk Assessment, State regulation, Train speed

Law professor: 9 ways that STATES can help regulate railroad safety and transportation

Repost from LegalPlanet.org
[Editor:  Federal preemption under the Commerce Clause is NOT the last and only word on regulating crude oil trains.  Here are some suggestions for State regulation by Professor Jayni Foley Hein, executive director of UC Berkeley School of Law’s Center for Law, Energy & the Environment.  – RS]

Oil By Rail: Nine Things California Can Do to Increase Safety

While FRA Considers New Federal Regulations, States Can Ramp Up Prevention and Emergency Response
By Jayni Hein, June 24, 2014

At a joint Senate and Assembly hearing last week on oil by rail safety in California, some lawmakers expressed frustration at slow federal action, and asked what California can do to increase public safety. My testimony focused on federal preemption issues, defining areas where the state can regulate, and those where it is preempted by the Commerce Clause, Federal Railroad Safety Act (FRSA), or ICC Termination Act, or all three.

While the Department of Transportation (DOT) and Federal Railroad Administration (FRA) have primary authority over railroad safety and transportation, the California Public Utilities Commission (CPUC) shares authority with the federal government to enforce federal rail safety requirements and conduct inspections. And even with strong federal preemption provisions, there are actions that California and other states can take right now to increase public safety in light of the enormous growth of oil by rail.

Here are nine things the state can do:

1. Prioritize track and rail car inspection.

California has more than 5,000 miles of mainline railroad track. Inspection of track and rail cars is vital, as derailments are the most common type of train accident in the United States. A national analysis of freight train derailments from 2001 to 2010 on the Class I freight railroads’ mainline track found that broken track rails or track welds were the leading cause of derailments. Broken rail car wheels and track obstructions are also common causes of derailments. (Liu, et. al. 2012).

Governor Brown’s new budget includes funding to hire seven additional rail safety inspectors for the CPUC, paid for by rail industry assessments. The state should ensure that it has enough CPUC inspectors to accommodate the projected rise in oil by rail traffic each year. If seven new inspectors are needed right now; we will likely need many more by 2016, when oil by rail shipments are projected to increase as much as 25-fold, to 150 million barrels per year.

2. Obtain robust data on rail routing, rail car contents, and accident causes.

California agencies need more information from FRA and the railroads on routes, frequency, and rail car contents, as well as data on train derailments, their causes, and risk factors specific to crude by rail transit. The state should obtain this data from FRA – a recommendation echoed in the June 10, 2014 California Inter-Agency Working Group Report. The CPUC needs both national data and California-specific data in order to do its job.

3. Conduct an analysis of the risks that crude by rail poses to the state, including identification of high-risk areas of track, and propose specific measures to increase safety.

The legislature should consider requiring an annual report from the CPUC on the specific risks that crude by rail poses to the state, and measures that it can take to increase safety. Voluntary agreements with the railroads may also be an important outgrowth of this state-specific analysis that can inform where and how to direct limited state resources. As previewed above, this state analysis should be guided by the most recent data available from FRA and the railroads.

The legislature could also consider requiring information sharing among the relevant state agencies, including CPUC, Office of Emergency Services (OES), Office of Spill Prevention and Response (OSPR), California Environmental Protection Agency, and more.

4. Require state oil spill contingency plans for trains transporting oil into the state.

SB 1319 (Pavley) would require state oil spill contingency plans for trains transporting oil into the state. Such a state-mandated plan would provide an opportunity to secure better emergency response protection for the environment and public safety.

5. Get access to daily information on oil shipments into California, and ensure that state and local emergency personnel can access this information immediately in the event of an accident.

A recent DOT Emergency Order requires that each railroad operating trains containing more than 1 million gallons of Bakken crude oil, or approximately 35 tank cars, to provide states with weekly notice that includes estimated volumes of Bakken oil  transported per week and routing information.

The state should also have immediate access to real-time shipment information, assuming the technology exists to enable this. The state should also ensure that local emergency response personnel are well trained to deal with any crude by rail accident, and can readily identify the contents of any shipment. Training and information sharing with local emergency response personnel can be paid for by the industry, using a fee or assessment like the 6.5 cent/barrel fee on all oil imports recently approved by the state.

6. Advocate for more stringent federal safety regulations.

Legislative pronouncements, as well as the CPUC’s robust participation in the Rail Safety Advisory Committee (RSAC) are needed to secure better federal standards.

California joins others states such as New York in advocating for more stringent rail car design standards (phasing out DOT-111 cars, for example), mandatory placards on rail cars identifying Bakken crude oil,  expediting Positive Train Control, and requiring electronically-controlled pneumatic brakes on all crude oil trains. The state can also advocate for further federal analysis of possible routing changes, to avoid sensitive population and habitat areas.

7. Monitor compliance with new voluntary measures that the railroads agreed to implement this year.

As part of a February 2014 agreement with DOT, the Class I railroads will perform one additional internal-rail inspection each year than required by the FRA on routes over which trains carry 20 or more tank cars of crude oil, and will conduct at least two track geometry inspections over these routes. The  railroads also agreed to use end-of-train braking systems on all oil trains, and lower train speed in federally-designated “high-threat-urban-areas.”

The CPUC should monitor the railroads’ compliance with these voluntary measures. At the same time, CPUC and the state should advocate for making these voluntary measures mandatory, by issuing new or revised FRA regulations.

8. Consider issuing guidance to local permitting agencies on requirements for offloading facilities and oil refinery expansion.

There are currently at least five crude-by-rail refinery projects being pursued in California: one in Pittsburg, one in Benicia, two in Bakersfield, and one in Wilmington. There is a patchwork of local permitting agencies responsible for land use, air, water, and other local safety and environmental issues that may be relevant to offloading sites and refineries.

Local government and permitting agencies can deny land use and other permits for refineries and offloading facilities if they find safety risks or improper environmental mitigation under statutes like the California Environmental Quality Act (CEQA). But, local agency personnel may have varying levels of expertise in oil and rail issues and may apply permitting criteria inconsistently. As such, the state, through the Office or Planning and Research (OPR), should consider issuing guidance to local permitting agencies on necessary permits and requirements for offloading facility or refinery expansion.

9. Provide guidance on CEQA review and the public comment and participation process, especially relevant to environmental justice communities that may be located near offloading sites or refineries.

While rail accidents can happen anywhere, communities near offloading sites and refineries are especially vulnerable to oil by rail transport risks. The state can provide information and guidance to these communities on opportunities for engagement, comment and participation.

In addition, the state can encourage railroads, industry and refineries to work directly with potentially affected communities to disclose as much information as possible about shipments, safety measures, and how community members can participate in the process to make their communities safer.

Bakken Crude, CPC-1232 standard, Crude By Rail, DOT-111, Federal Regulation (U.S.)

White House agency under pressure from big oil & rail – accused of “coddling” the industries

Repost from DESMOGBLOG
[Editor: The influential White House Office of Information and Regulatory Affairs (OIRA) is reviewing the newly-proposed oil-by-rail safety regulations rolled out by the DOT and PHMSA.  Significant quote: “A DeSmogBlog review of OIRA meeting logs confirms that in recent weeks, OIRA has held at least ten meetings with officials from both industries on oil-by-rail regulations. On the flip side, it held no meetings with public interest groups.”  See also important statements by BNSF and the DOT on the need for an entirely new tank car design near the end of this article.   – RS]

Meeting Logs: Obama White House Quietly Coddling Big Oil on “Bomb Trains” Regulations

Sun, 2014-06-15  |  Justin Mikulka and Steve Horn

When Richard Revesz, Dean Emeritus of New York University Law School, introduced Howard Shelanski at his only public appearance so far during his tenure as Administrator of the White House Office of Information and Regulatory Affairs (OIRA), Revesz described Shelanski as, “from our perspective, close to the most important official in the federal government.”

OIRA has recently reared its head in a big way because it is currently reviewing the newly-proposed oil-by-rail safety regulations rolled out by the Department of Transportation (DOT) and Pipeline and Hazardous Materials Safety Administration (PHMSA).

During his presentation at NYU, Shelanski spoke at length about how OIRA must use “cost-benefit analysis” with regards to regulations, stating, “Cost-benefit analysis is an essential tool for regulatory policy.”

But during his confirmation hearings, Shelanski made sure to state his position on how cost-benefit analysis should be used in practice. Shelanski let corporate interests know he was well aware of their position on the cost of regulations and what they stood to lose from stringent regulations.

“Regulatory objectives should be achieved at no higher cost than is absolutely necessary,” Shelanski said at the hearing.


Howard Shelanski; Photo Credit: White House Office of Information and Regulatory Affairs

With the “cost-benefit analysis” regarding environmental and safety issues for oil-by-rail in OIRA’s hands, it appears both the oil and rail industries will have their voices heard loudly and clearly by the White House.

A DeSmogBlog review of OIRA meeting logs confirms that in recent weeks, OIRA has held at least ten meetings with officials from both industries on oil-by-rail regulations. On the flip side, it held no meetings with public interest groups.

“Cost-Benefit”: A Brief History

OIRA was created in 1980 by President Ronald Reagan with the goal of getting rid of “intrusive” regulations.

“By instructing agencies to clear drafts of regulations through OIRA, Presidents have made the agency…a virtual choke point for federal regulation,” explains the Center for Progressive Reform, a think-tank critical of OIRA and its cost-benefit analysis.

Cost-benefit analysis was put on the map by Harvard Law School professor Cass Sunstein, “regulatory czar” and head of OIRA for President Barack Obama before Shelanski.

The ideology, which is embraced by President Obama, is inspired by the “Chicago School” of free market economics, unpacked in depth in Naomi Klein’s book, “The Shock Doctrine.”

“He’s a University of Chicago Democrat, so he’s very attuned to the virtue of free markets and the risks of free-market regulation,” Sunstein told The Wall Street Journal about Obama in 2009. “He’s not an old-style Democrat who’s excited about regulations.”


Cass Sunstein; Photo Credit: Wikimedia Commons

The Washington Post described Sunstein as Obama’s “intellectual mentor” who “had a major influence on Obama’s view of government — stressing pragmatism over ideology.”

But of course, the “Chicago School” has its own ideological roots: neoliberalism.

Big Oil Meet and Greet

The first on-the-books meeting OIRA held in the second quarter of 2014 about the newly-proposed oil-by-rail safety regulations written by the U.S. Department of Transportation (DOT) was with lobbyists, economists and attorneys representing both the American Petroleum Institute (API) and Chevron on May 19.

Attendees of that meeting included Misty McGowen, Director of Federal Relations for API and Michael Yoham, Manager Rail Transportation Services for Chevron.

This API-Chevron White House visit parallels the one they made together when OIRA mulled over new rules on sulfur in gasoline. In 2012, a group led by API president Jack Gerard went to the White House to discuss this issue with another of President Obama’s closest advisers, Valerie Jarrett.

This visit clearly paid dividends for the industry when the new regulations were delayed.

Akin to what is currently happening with the oil-by-rail regulations regarding Bakken shale oil and the DOT-111 tank cars, it was coordinated with a big public relations push trashing the regulations as unnecessary.

History, as they say, has repeated itself in the oil-by-rail sphere.

A new report touting the safety of oil obtained from hydraulic fracturing (“fracking”) in the Bakken Shale was released by industry groups the same week as the API-Chevron visit with OIRA.


Image Credit: Shutterstock | Trueffelpix

Less than two weeks later on May 30, OIRA met with representatives from the American Fuel & Petrochemical Manufacturers (AFPM) and Tesoro, among others. Stephen H. Brown, a Tesoro lobbyist, represented the company — which has a multi-pronged oil-by-rail footprint — at the meeting.

AFPM has also gone on the record saying Bakken fracked oil is safe for railway transportation, also concluding DOT-111 tank cars are “fine” for moving Bakken crude to market.

“Can we have an intellectually honest discussion about mechanical and track integrity on the rails?,” AFPM president Charles Drevna asked rhetorically in a May 19 Railway Age article. “You shouldn’t blame the cargo for an accident.”

Other Big Oil companies that got the ear of OIRA in June included Phillips 66 (purchased as a wholly-owned subsidiary by ConocoPhillips in 2001) and ExxonMobil.

BNSF Lands Two Meetings in One Week

Records also reveal OIRA met twice in one week with Burlington Northern Sante Fe (BNSF), the oil-by-rail behemoth owned by Warren Buffett. The first was held on June 3 and the second on June 6.

Buffett was a major donor to President Obama for both the 2008 and 2012 presidential elections. He also gave big money to Hillary Clinton — former Secretary of State for the Obama Administration and likely presidential candidate in 2016 — during the 2008 Democratic Party presidential primaries, and has already endorsed her for 2016.


Warren Buffett (L), President Barack Obama (R); Photo Credit: Wikimedia Commons

BNSF Executive Chairman Matthew Rose came to the June 3 meeting flanked by two BNSF lobbyists: Amy Hawkins and Cliff Rothenstein (who maintains BNSF as a client on behalf of K&L Gates). Some speculate Rose could succeed Buffett as CEO of Berkshire Hathaway, the holding company that bought BNSF in 2009.

On June 6, Roger Nober, BNSF Executive Vice President for Law and Corporate Affairs, landed a one-on-one meeting with Shelanski. Before working for BNSF, Nober passed through the government-industry revolving door, serving as an attorney for the Department of Transportation.

According to an article published in EnergyWire, BNSF supports an “aggressive phase out” of its DOT­-111 tank cars.

”[BNSF] believe[s] the next ­generation tank cars should exceed the 2011, stronger new standard known as the CPC­-1232 tank car,” Roxanne Butler, a spokeswoman for BNSF told EnergyWire.

Butler did not respond to questions from DeSmogBlog about what BNSF discussed with OIRA in the meetings, nor did she specify what she meant by an “aggressive phase out.”

The CSX Corporation oil-by-rail train that exploded in Lynchburg, Virginia in late-April, though, had CPC-1232 “next ­generation tank cars.”

On the May 14 edition of The Rachel Maddow Show, Secretary of Transportation Anthony Foxx told Maddow that he does not believe the CPC-1232 is the solution.
Secretary of Transportation Anthony Foxx interview with Rachel Maddow, via YouTube.

“I can tell you that I don’t have confidence in the DOT-111 [and] I’m unconvinced that the 1232 — which is the upgraded car — is the absolute solution,” said Foxx. “I think there’s going to have to be a new type of tank car established to keep this country as safe as possible.”

Oil Exports Connection

For its first oil-by-rail meeting of June, DOT officials and OIRA officials sat alongside Russell Smith, lobbyist for oil and gas industry capital investment firm Quantum Energy; FTI Consulting lobbyist John Cline; and John Whitcomb, legislative analyst for FTI Consulting.

Cline formerly headed up C2 Group, a Washington, DC-based lobbying group purchased in March 2013 as a wholly-owned subsidiary of FTI Consulting.

BNSF is one of C2 Group’s clients.

As his C2 Group biography explains, Cline has also passed through the revolving door, formerly working for both the White House and DOT. 

“John served in the White House as a Special Assistant for Intergovernmental Affairs under President George H.W. Bush,” Cline’s bio states.

“Prior to his service in the White House, he was Director of the Office of Congressional Affairs for the U.S. Department of Transportation (DOT)… John entered public service in 1989 upon his selection by President Bush as Associate Administrator for the Federal Transit Administration at DOT.”

FTI — overseer of public relations efforts for fracking front group Energy in Depth — published a report promoting oil exports in June 2013.

Many prospective coastal crude oil export terminals rely on oil-by-rail to move product to the coast.

For example, the exploding CSX Corporation oil-by-rail train in Lynchburg, Virginia owned by Plains All American was on its way to the Yorktown facility. Yorktown has been marked a potential export terminal if the ban on exporting U.S. oil is lifted.

Map Credit: CSX Corporation

Cui Bono?

While Shelanski’s remarks at NYU discussed cost-benefit analysis, he also talked about how the question over regulatory policy often boils down to shifting costs.

“A more honest debate and better policy will emerge if the debate acknowledges the difference between creating costs and shifting costs back to their source to reduce harmful externalities,” he said.

Which raises the big questions on oil-by-rail regulations, or lack thereof: cui bono? And who pays the costs?

A case in point is Lac-Mégantic, Quebec — site of the massive “bomb train” explosion which killed 47 people on July 6, 2013 — where the cost to clean up and rebuild the town is estimated at $2.7 billion.


Lac-Mégantic Disaster; Photo Credit: Wikimedia Commons

With all six of the oil and rail companies involved refusing to pick up the tab, the cost has been transferred to taxpayers from the oil and rail industries.

Exactly what API, Chevron, ExxonMobil, BNSF and other powerful factions discussed in their meetings with OIRA remains unknown for now.

But one thing remains clear: the only side OIRA has listened to so far in official meetings is Big Oil and Big Rail.

This is consistent with the trend-lines unpacked in the Center for Progressive Reform’s study titled, “Behind Closed Doors at the White House,” a comprensive review of OIRA meeting logs between 2001-2011.

“Over the last decade, 65 percent of the 5,759 meeting participants who met with OIRA represented regulated industry interests — about five times the number of people appearing on behalf of public interest groups,” stated the report.

“[E]ven under this ostensibly transformative President [Obama]…industry visits outnumbered public interest visits by a ratio of almost four to one.”


Table Credit: Center for Progressive Reform

As the old adage goes, the more things change, the more they stay the same.

“The oil-by-rail situations illustrates the way that the process is, all too often, stacked in favor of industry,” Daniel A. Farber, professor at University of California Law School, scholar for the Center for Progressive Reform and critic of OIRA‘s version of cost-benefit analysis, told DeSmogBlog.