Tag Archives: House Homeland Security Committee

Bakken Crude, Crude By Rail, Derailment, Federal Regulation (U.S.), Hazmat notification, High Hazard Flammable Trains (HHFTs)

Railroads use new oil shipment rule to fight transparency

Repost from McClatchy DC 

Railroads use new oil shipment rule to fight transparency

By Curtis Tate, McClatchy Washington Bureau, 6/25/15
A CSX oil train moves east through Selkirk Yard near Albany, N.Y., on May 26, 2015. The Albany area has become a hub for crude by rail shipments as East Coast refineries have replaced imported oil with mid-continent sources. CSX and other railroads continue their push to keep routing and volume information about the shipments from the public. CURTIS TATE — McClatchy

WASHINGTON — Railroads may have found a new weapon in their fight to keep information about oil train shipments from the public: a federal rule that was supposed to increase transparency.

The U.S. Department of Transportation insists that its May 1 final rule on oil trains, which mostly addresses an outdated tank car design, does not support the railroads’ position, nor was it intended to leave anyone in the dark.

But in recent court filings in Maryland, two major oil haulers have cited the department’s new rule to justify their argument that no one except emergency responders should know what routes the trains use or how many travel through each state during a given week.

Those details have been publicly available in most states for a year, though some sided with the railroads and refused to release them. The periodic reports have helped state and local officials with risk assessments, emergency planning and firefighter training.

The department’s rule was expected to expand the existing disclosure requirements. In its 395-page rule, the department acknowledged an overwhelming volume of public comments supporting more transparency. But ultimately, it offered the opposite.

The final rule ends the existing disclosure requirements next March. Railroads no longer would be required to provide information to the states, leaving emergency responders to request details about oil train shipments on their own, and the public would be shut out entirely.

The switch floored those who submitted comments in favor of increased transparency.

“The justification was not consistent with the comments given,” said Denise Rucker Krepp, a former senior counsel for the House Homeland Security Committee and chief counsel for the U.S. Maritime administration. “They’re supposed to be the same.”

Facing push-back from Capitol Hill, Transportation Secretary Anthony Foxx assured lawmakers in a May 28 letter that “we fully support the public disclosure of this information to the extent allowed by applicable state, local and tribal laws.”

Foxx added that the department was not attempting to undermine transparency.

“That was certainly not the intent of the rule,” he wrote eight Senate Democrats.

But Foxx’s assurances differ sharply from the assertions of Norfolk Southern and CSX in court documents filed last month in Maryland. The documents are related to a case last summer when the railroads sued the state to block the release of oil train reports to McClatchy.

The final rule provides “clear and unequivocal guidance” that information about oil train routes and volumes are security- and commercially-sensitive, attorneys for the railroads wrote on May 5 to Judge Lawrence Fletcher-Hill of the Circuit Court for Baltimore City.

That classification would trigger an exemption from the state’s Public Information Act.

A trial is scheduled for August, though Fletcher-Hill could decide before then whether to dismiss the case in favor of the railroads or the state.

Both companies declined to comment on the case.

Last May, the Transportation Department issued an emergency order requiring railroads to notify states of large shipments of Bakken crude oil after a series of fiery derailments involving the light crude from shale formations in North Dakota. The worst of those derailments killed 47 people in Quebec in July 2013.

Railroads have insisted that the oil train details are sensitive from a security and business perspective and should be exempt from state open records laws. They attempted to shield the data from public view last year by asking states to sign nondisclosure agreements.

Some states initially agreed, but most declined. McClatchy sought oil train reports from 30 states through open records laws. All but half a dozen states released at least part of what McClatchy requested.

Last fall, two rail industry trade groups lobbied the Transportation Department to end the reporting requirement. In a notice published in the Federal Register in October, the department rebuffed the request.

“DOT finds no basis to conclude that the public disclosure of the information is detrimental to transportation safety,” the Federal Railroad Administration wrote, adding that the trade associations “do not document any actual harm that has occurred by the public release of the information.”

But when the department unveiled its final rule in May, the requirements more closely aligned with what the railroads sought.

“Under this approach,” the regulation states, “the transportation of crude oil by rail can . . . avoid the negative security and business implications of widespread public disclosure of routing and volume data.”

The Maryland Attorney General’s Office has cited the department’s October Federal Register notice to support its position that the state can release the oil train information.

But the final rule is the last word, attorneys for the railroads say. They wrote Fletcher-Hill on May 29 that the state “relies on non-final comments published by the Federal Railroad Administration” and “fails to acknowledge the highly persuasive guidance articulated in the final rule.”

Unlike other arguments put forth by the railroads and their trade groups that have swayed few state or federal officials – including speculative claims of terrorism, competitive harm and even insider trading – the final rule may prove more persuasive to a judge.

The eight Senate Democrats wrote to Foxx on May 6, the same day another oil train derailed and caught fire in North Dakota. It was the fifth such incident in North America this year. They asked the department to reconsider the rule.

“The onus for obtaining detailed crude-by-rail information should not be on the local jurisdiction,” they wrote, and they called on the department “to clarify that broader crude-by-rail information will remain accessible to the public.”

Apparently backing away from the final rule’s expiration date for the emergency order, Foxx replied that it would remain “in full force and effect until further notice” and that the department would be looking for ways to codify the disclosure requirement.

But Krepp said that’s exactly what everyone was expecting in the rule.

“If they wanted that,” she said, “they would have put that in the rule-making.”

Krepp said the department made its intentions clear in the final rule.

“They have the final rule now,” she said. “They have to live with it.”

Bakken Crude, Crude By Rail, Hazmat notification

Oil Trains Hide in Plain Sight

Repost from The Wall Street Journal
[Editor: This is a must-read.  IMPORTANT – See the Wall Street Journal site for an excellent video report and an interactive U.S. map showing  the weekly average number of crude oil trains from the Bakken Shale in North Dakota that pass through each county.  – RS]

Oil Trains Hide in Plain Sight

Rail Industry’s Secret: Volatile Crude Routes Often Kept From Cities and Towns
By Russell Gold, Dec. 3, 2014
tank car 1267
Finding the locations of oil-filled trains remains difficult, even in states that don’t consider the information top secret. WSJ’s Leslie Eaton and Simon Constable discuss. Photo: AP

NEWARK, Del.—Early last year, a new kind of pipeline full of volatile oil appeared in this college town, halfway between Philadelphia and Baltimore.

If it had been a traditional pipeline, there would have been government hearings and environmental reviews. There would be markers or signs along the line’s route and instructions for nearby residents on how to react in an emergency. A detailed plan for responding to a spill would be on file with the federal government.

 

None of that happened here in Newark. In fact, nobody initially notified the city’s fire chief about the new line, which can carry more than a hundred thousand barrels of oil a day along Amtrak’s busiest passenger-rail corridor.

See Related Video on #WorldStream

This was possible because the oil here is transported by a virtual pipeline: mile-long strings of railroad tanker cars that travel from North Dakota to a refinery in Delaware. In Newark, the cars are especially easy to spot as they often sit for hours on tracks 10 feet away from passing passenger trains, waiting for an opening at the nearby PBF Energy Inc. plant.

While the existence of this virtual pipeline is obvious to its neighbors—trains are visible from homes, the local commuter rail station, a park and a popular jogging trail—it is officially secret. Delaware Safety and Homeland Security officials contend that publicizing any information about the oil trains parked there would “reveal the State’s vulnerability to terrorist attacks,” according to a letter to The Wall Street Journal.

A Norfolk Southern Corp. train
A Norfolk Southern Corp. train in a refinery in Delaware, waiting to unload its cargo of crude oil from North Dakota. Russell Gold/The Wall Street Journal

Finding the locations of oil-filled trains remains difficult, even in states that don’t consider the information top secret. There are no federal or state rules requiring public notice despite several fiery accidents involving oil trains, including one in Lac-Mégantic, Quebec, that killed 47 people.

The desire for secrecy seems wrongheaded to some experts. “If you don’t share this information, how are people supposed to know what they are supposed to do when another Lac-Mégantic happens?” asked Denise Krepp, a consultant and former senior counsel to the congressional Homeland Security Committee.

She said more firefighting equipment and training was needed urgently. “We are not prepared,” she said.

In May, federal regulators ordered railroads to tell states about the counties traversed by trains carrying combustible crude oil from the Bakken Shale in North Dakota so local first responders could be notified.

The Journal submitted open-records requests to all 48 contiguous states and the District of Columbia and received at least some information from all but 14: Colorado, Delaware, Idaho, Indiana, Louisiana, Maine, Maryland, Michigan, Nevada, Ohio, Tennessee, Texas, Vermont and West Virginia.

Mapping data received from the disclosing states, the Journal found a lot of other cities in the same situation as Newark. On its way to refiners on the East Coast and along the Gulf of Mexico, oil often sits in tank cars in railroad yards outside Harrisburg and Pittsburgh, Penn., and passes through Cleveland, Chicago, Albany, Seattle and a dozen other cities.

Bakken oil is flowing in two directions from North Dakota: west toward Portland and the Puget Sound; and east through Minneapolis, then southeast through Chicago, and across the northern edge of Indiana and Ohio. There it splits into three routes: One heads to Albany; another goes to Yorktown, Va., where the crude is transferred to barges for trips up and down the East Coast. The third heads to Philadelphia through Ohio, which is one of the states that doesn’t disclose data, but the Journal was able to deduce the routes by following available maps.

Other oil trains run south from Oregon to California, from Minnesota to Texas, and from Wisconsin toward the Gulf Coast.

Maryland previously had attempted to release oil-train information, but was successfully sued by Norfolk Southern Corp. and CSX Corp. Norfolk argued that these trains were carrying “highly volatile cargo” that could be a target for terrorists.

Railroads have continued to press for secrecy; in August, the Association of American Railroads and the American Short Line and Regional Railroad Association wrote a confidential letter to the federal government asking that routing information be kept from the public. The request was denied.

“The rail industry is concerned making crude oil route information public elevates security risks by making it easier for someone intent on causing harm,” said AAR spokesman Ed Greenberg. The group said it supports sharing information with local officials.

Neither the oil nor the railroad industry anticipated the rapid and dramatic rise of oil shipments by train. In 2009, U.S. railroads transported about 21,000 barrels a day of oil; today they carry 1.1 million barrels a day, according to data from the Surface Transportation Board, a federal regulator. Last year, railroads generated about $2.15 billion in revenue from moving crude.

Shipments of hazardous material, especially crude oil, have soared recently, even for railroads whose routes are far from the oil fields of North Dakota. Norfolk Southern and CSX, which serve the East Coast, moved 53,001 carloads of oil in the three months ended September, compared with just seven carloads during the same period of 2009, according to data from the federal Surface Transportation Board. They transported 156,731 carloads of industrial chemicals, some of which are hazardous, in the third quarter of this year, up 8% from five years ago.

Trains are the new pipelines, and have become a vital link in the energy infrastructure, said Dave Pidgeon, a spokesman for Norfolk Southern. “We are the keystone, the bridge, between the source of where the energy is extracted and where it is refined,” he said. Moving hazardous material like crude, he added, is “safe and getting safer.”

Trains offer the energy industry flexibility to move oil where it can fetch the highest prices. Building the needed loading and unloading terminals is fast and inexpensive, and an extensive rail network connects the Midwest to the East and West coasts.

While these virtual pipelines can be created in months, traditional pipelines have become increasingly difficult to install as environmental groups seek to block permits for new energy infrastructure.

“What we are seeing on rail is largely due to opposition to and uncertainty around building pipelines,” said Brigham McCown, who was the chief pipeline regulator under President George W. Bush . Pipelines, he adds, are far safer than trains.

Since Lac-Mégantic, several trains have derailed and exploded. Most of these accidents have happened in relatively rural areas like Casselton, N.D., a town of about 2,500 people 24 miles west of Fargo. But one occurred in downtown Lynchburg, Va., forcing the evacuation of much of the downtown in a city with 78,000 residents.

In response, railroads agreed to slow oil trains to 40 miles an hour in urban areas, and federal regulators have proposed a broader speed limit for older tank cars carrying volatile crude oil.

The rules don’t apply to other freight trains or Amtrak trains that share tracks in Newark with oil trains; about 85 Amtrak trains run through Newark every day, according to a spokesman, at speeds of up to 100 miles an hour. In addition to Norfolk Southern, which operates on the outskirts of town, CSX runs oil trains on a wholly separate track heading north toward refineries near Philadelphia.

Without oil trains, the local PBF Refinery might not be operating. Opened in 1956 on the Delaware River, the refinery handled imported oil that arrived by water from overseas; it was mothballed in 2009 as the economics of importing crude oil soured and demand for gasoline slumped.

PBF bought the refinery in 2011, reopened it the next year and began adding facilities to unload crude from trains. The company owns or leases 4,000 tank cars, has 1,900 more on order and said it is committed to using the safest cars available.

The refinery built a double loop that can accommodate two trains, each holding 70,000 barrels of crude. It can take workers 14 hours to unload each train by connecting hoses to drain out the cargo.

The Bakken crude contains a lot of butane, making it volatile but useful for mixing with heavier oils or as a refined byproduct, said refinery manager José Dominguez. On a recent afternoon, the refinery was running mostly Bakken oil, along with some diluted crude from Canadian oil sands and a ship’s worth of light sweet oil from Basra, Iraq.

When Norfolk Southern began routing crude trains through Newark, it didn’t notify the local emergency officials. Last March, a year after trains started turning up, Fire Chief A.J. Schall sat down with officials from the railroad and refinery to discuss the crude shipments.

“It shows a lack of communication,” he said. By the summer, Norfolk Southern and PBF paid for Mr. Schall and another local fire chief to fly to Colorado and attend a three-day class on crude-by-rail trains.
Some people who live and work along the tracks say that they are disquieted by the increased traffic and especially of the new presence of mile-long strings of black tanker cars, but unaware of any new accident-preparedness plans.

Demitri Theodoropoulos, who manages a record store facing the intersection, said that since 2004 his security cameras have recorded 14 collisions, including one in 2012 when a train smashed into a large truck.

“We have major, major freight traffic here,” he said. “I see trains with crude every day or so. I don’t like it, but this is the way it is.”

Association of American Railroads, BNSF Railway, California Attorney General Kamala Harris, California Regulation, Crude By Rail, Union Pacific Railroad

Railroads file suit against state of California

Repost from The Sacramento Bee
[Editor’s UPDATE: Download the complaint here.  – RS] 

Railroads say California lacks authority to impose safety rules on oil shipments

By Tony Bizjak and Curtis Tate, Oct. 8, 2014
A crude oil train operated by BNSF snakes its way through James, California, just outside the Feather River Canyon in the foothills of Sacramento Valley, on June 5, 2014.
Virginia emergency responders learn about the different types of railroad tank cars in a safety class at a CSX yard in Richmond, Va., on Oct. 3, 2014. About 66 first responders, including firefighters, participated in the daylong event. CSX has brought its “Safety Train” this year to communities in states where it hauls large volumes of crude oil. (Curtis Tate/McClatchy)

The battle over crude oil trains in California intensified this week, reaching into the legal sphere with potential national repercussions.

The state’s two major railroad companies, Union Pacific and the BNSF Railway, went to federal court Tuesday to argue that neither California nor any other state can legally impose safety requirements on them because the federal government already does that.

The lawsuit came days after California Attorney General Kamala Harris joined other officials in challenging one crude-by-rail project, in the Bay Area city of Benicia. In a letter to Benicia officials, Harris said the city has failed to adequately analyze the potential environmental consequences of Valero Refining Company’s plan to ship two 50-car oil trains daily through Northern California to its Benicia refinery.

Those shipments would run through downtown Sacramento and other Valley cities.

The Valero project and similar plans by other oil companies prompted the state Legislature this summer to pass a law ordering railroad companies to submit an oil spill prevention and response plan to the state, and to provide proof to the state that they have enough money to cover oil-spill damages.

Railroads fired back this week, filing a lawsuit in the U.S. District Court in Sacramento. Their argument: Federal law pre-empts the state from imposing safety restrictions on the railroads.

The suit was filed by the two largest railroads in the Western United States, Union Pacific and BNSF Railway Co. The industry’s leading trade group, the Association of American Railroads, is listed as co-plaintiff.

The fight involves a long-standing friction point between railroads and U.S. states and cities. Railroads contend that local governments cannot place requirements or restrictions on freight travel because federal laws cover that ground.

The railroads have used the federal pre-emption argument to stop states from trying to impose speed limits on trains and ban certain types of shipments. In one notable case, railroads got the courts to overturn a Washington, D.C., law that attempted to ban trains carrying hazardous materials from using tracks within 2 miles of the U.S. Capitol.

“Federal law exempts this entire regime,” the railroads declared in the California lawsuit. Citing “a sweeping set of intricate federal statutes and regulations,” the lawsuit argues that allowing states to impose a “patchwork” of requirements on railroads essentially interferes with interstate commerce.

In a separate email statement Wednesday, BNSF spokeswoman Lena Kent said, “The state gives the industry no choice but to challenge the enforcement of the new law so as to not inhibit the efficiencies and effectiveness of the freight rail industry and the flow of commerce.”

Officials at the state Office of Spill Prevention and Response, the state agency listed as the defendant in the case, declined comment Wednesday, saying the agency does not publicly discuss pending litigation. Harris’ office is listed as a co-defendant.

The U.S. Department of Transportation in July proposed a rule that would require railroads to have oil spill response plans for trains carrying large volumes of crude oil. But that proposal could be months away from becoming law.

National transportation law and safety experts say the onus may be on California to prove that it is not usurping federal law or impeding interstate commerce.

“The state has to prove it is tackling what is a local or statewide issue, that it is not incompatible (with federal law) and doesn’t unreasonably burden interstate commerce,” said Brigham McCown, an attorney and former head of the federal Pipeline and Hazardous Materials Safety Administration. “That is a high bar.”

California might have an opening in a 2007 law Congress passed after the 9/11 Commission issued its recommendations. The 9/11 Act required rail companies to develop security plans and share them with state and local officials. The requirement was not limited to planning for a terrorist attack, but for any rail disaster, including derailments and spills involving hazardous materials.

“Those plans are required to be done and required to be shared,” said Denise Rucker Krepp, the former senior counsel on the House Homeland Security Committee, who wrote the provisions.

The Transportation Security Administration has not enforced the requirement, Krepp said, partly because of its focus on aviation security. But now that the railroads have taken California to court, Krepp said the state could use the 9/11 Act as leverage to get what it tried to get from the railroads through legislation.

“It’s never been tested like this,” Krepp said of the federal law.

It was unclear Wednesday whether the railroads also are challenging the section of the California law that imposes a 6.5-cent fee on oil companies for every barrel of crude that arrives in California on rail, or that is piped to refineries from inside the state. The resulting funds, estimated at $11 million in the first full year, will be allocated for oil spill prevention and preparation work, and for emergency cleanup costs. The efforts will be focused on spills that threaten waterways, and will allow officials to conduct response drills.

Crude-oil rail shipments have risen dramatically in the last few years. Those transports, many carrying an unusually flammable crude from North Dakota, have been involved in several spectacular explosions, including one that killed 47 residents of a Canadian town last year. Federal officials and cities along rail lines have been pushing for safety improvements. California officials have joined those efforts, saying they are concerned by estimates that six or more 100-car oil trains will soon be rolling through the state daily on the way to coastal refineries.

Harris, the state’s top law enforcement official, sent a letter to Benicia city planners challenging that city’s conclusion in an environmental impact report that the Valero rail shipment plan poses an insignificant threat of derailment. The report, she writes, “underestimates the probability of an accidental release from the project by considering only a fraction of the rail miles traveled when calculating the risk of a derailment.”

“These issues must be addressed and corrected before the City Council of Benicia takes action” on the project, Harris wrote.

Harris’ letter repeats earlier criticism leveled by the state Office of Spill Prevention and Response and state Public Utilities Commission.

The letter is one of hundreds Benicia has received in the past few months in response to the city’s initial environmental study. Benicia interim Community Development Director Dan Marks said the city and its consultants would review the comments and prepare responses to all of them, then bring those responses to the city Planning Commission for discussion at an as-yet undetermined date.

Under the Valero proposal, trains would carry about 1.4 million gallons of crude oil daily to the Benicia refinery from U.S. and possibly Canadian oil fields, where it would be turned into gasoline and diesel fuel. Valero officials have said they hope to win approval from the city of Benicia to build a crude-oil transfer station at the refinery by early next year, allowing them to replace more costly marine oil shipments with cheaper oil.

A representative for the attorney general declined comment when asked if Harris would consider suing Benicia to force more study of the project.

“We believe the letter speaks for itself,” spokesman Nicholas Pacilio said. “We expect it will be taken seriously.