Repost from McClatchy DC

Norfolk Southern sues to block disclosure of crude oil shipments

By Curtis Tate, McClatchy Washington Bureau, July 24, 2014 

WASHINGTON — A major hauler of crude oil by rail has sued the state of Maryland to stop the public release of information about the shipments, according to court documents.

The suit was filed Wednesday, the same day the U.S. Department of Transportation announced proposed rules to improve the safety of crude oil shipments by rail. Several serious oil train accidents resulting in spills, fires and fatalities have increased scrutiny on the industry.

Rail companies prefer to keep details about crude oil shipments confidential and some states have agreed, but others have decided that the records can be made public.

Several states – including California, Washington, Illinois and Florida – have fulfilled open records requests from news organizations and others. Though rail companies didn’t want the information made public, none had pursued a legal challenge to block its release.

The Maryland suit, triggered by a state Public Information Act request from McClatchy and the Associated Press, appears to be the first time a railroad has gone to court over the issue.

Norfolk Southern, a major Eastern rail company based in Norfolk, Va., filed the suit in the Circuit Court for Baltimore City to seek a temporary restraining order and a permanent injunction to prevent the release of the information the two news organizations requested.

The Maryland Department of the Environment had given the railroad until Thursday to challenge its decision to release the information. In a letter to McClatchy, the department wrote that it expected a similar lawsuit from CSX, a rival Eastern rail carrier.

Norfolk Southern declined to comment.

In May, following a series of derailments that involved crude oil from North Dakota’s Bakken shale region, the USDOT required rail companies to notify state emergency management officials about shipments of 1 million gallons or more of Bakken oil within state borders.

The notifications were intended primarily to help fire departments better prepare for potential derailments. Railroads asked state officials to sign confidentiality agreements _ citing concerns about security and competition _ and initially, the USDOT advised states to comply.

But in response to numerous state open-records requests, the department eventually conceded that no federal law protected the information from public disclosure.

According to the suit filed by Norfolk Southern, Thomas Levering, the director of emergency preparedness and planning for the Maryland Department of the Environment, signed such a confidentiality agreement May 28.

McClatchy filed a Public Information Act request for the information on June 10.

On June 13, the railroad received a letter from the office of Maryland Attorney General Douglas Gansler voiding the confidentiality agreement. It said Levering had “no legal authority” to sign the agreement and that it was in conflict with the state open records law. Gansler’s office declined to comment for this story.

On June 27, Norfolk Southern sent a letter objecting to the attorney general’s claims. The railroad argued that the crude oil shipment information enjoyed “mandatory protection” under state law because it contained “confidential commercial information.”

The railroad also wrote that state law protects information that could “jeopardize the security of a facility or facilitate the planning of a terrorist attack.”

The federal government has nearly sole jurisdiction over rail transportation and transportation security, and neither the USDOT or the Transportation Security Administration considers information about crude oil shipments by rail “security sensitive.”

The Norfolk Southern suit provides a glimpse of the rail industry’s thinking on the issue. In an affidavit that accompanies the injunction request, the railroad concedes that much of the information in the crude oil notifications is already publicly available.

Michael McClellan, Norfolk Southern’s vice president for industrial products, wrote that information about rail lines and the customers they serve is available from various sources, including rail enthusiast websites and the railroads themselves.

He also noted that information about the processing capacity of oil refineries and rail terminals can be found on Wikipedia. But he said specific knowledge about crude oil routes and volumes would give an advantage to the railroad’s competitors, including other train lines, as well as trucking, pipeline and marine vessel operators, potentially reducing Norfolk Southern’s market share.

In another affidavit, Carl Carbaugh, the railroad’s director of infrastructure security, wrote that terrorist Internet postings and publications have identified the U.S. freight rail network as a potential target.

Carbaugh wrote that “understanding where and when trains operate is difficult to discern without routing information or knowing type and volume of commodity shipped,” and publicizing such details “undercuts an inherent strength” in the industry’s risk profile.

But he also conceded that it’s impossible to build a fence around 250,000 miles of track across the country. The biggest security problem most railroads face is from trespassers and theft of consumer goods from stopped trains.

Of the roughly 16 major derailments involving shipments of crude oil or ethanol since 2006, none was the result of a terrorist attack. Though some of those accidents are still under investigation, most were caused by mechanical failure or human error.